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HomeMy WebLinkAbout FULL PACKET_2020-03-03REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2020 TITLE APPROVE AN APPROPRIATION ADJUSTMENT IN THE AMOUNT OF $710,000 TO SUPPORT THE COSTS ASSOCIATED WITH THE SIGNATURE VERIFICATION AND ADDITIONAL ACTIVITIES RELATING TO THE MAY 19, 2020 SPECIAL ELECTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on V Reading ❑ Ordinance on 2i1 Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO /s/Kristine Ridge FILE NUMBER CITY MANAGER RECOMMENDED ACTION Approve an appropriation adjustment in the amount of $710,000 to fund the costs associated with the May 19, 2020 special election. DISCUSSION At the February 18, 2020 City Council meeting, the City Council accepted the certificate as to verification of signatures from the Orange County Registrar of Voters and the certificate of sufficiency from the Clerk of the Council. At the same meeting, the City Council also adopted resolutions calling for a special municipal election for the submission of (1) the question of the recall of Councilmember Cecilia Iglesias, (2) the election of candidates to fill the vacancy if the recall prevails, and (3) adopting Candidate Statement regulations for candidates pursuant to Elections Code section 13307. STRATEGIC PLAN Approval of this agreement allows us to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Priority #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 Approve an appropriation adjustment in the amount of $710,000 from the General Fund balance to the Clerk of the Council, Contractual Services account no. 01107031 62300 for the costs of the signature verification and the May 19, 2020 special election. 20A-1 Appropriation Adjustment For Costs Associated with the May 19, 2020 Special Election March 3, 2020 Page 2 APPROVED AS TO FUNDS AND ACCOUNTS: Daisy Gomez Kathryn Downs, CPA Clerk of the Council Executive Director Finance and Management Services Agency 20A-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2020 TITLE AMEND PURCHASE ORDER WITH WATERLINE TECHNOLOGIES FOR WATER TREATMENT CHEMICALS TO INCREASE THE AMOUNT BY $10,000 FOR THE PERIOD THROUGH APRIL 30, 2020 AND $50,000 FOR THE PERIOD THROUGH APRIL 30, 2021 TO BE FUNDED BY THE GENERAL FUND (SPECIFICATION NO. 17-020) CITY MANAGER CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 11' Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ �K•�►nuir».ic. FILE NUMBER RECOMMENDED ACTION Authorize the City Manager to execute a purchase order contract amendment to Waterline Technologies for water treatment chemicals to increase the amount for the Parks, Recreation and Community Services Agency by $10,000 for the period through April 30, 2020 and $50,000 for the final renewal period through April 30, 2021 to be funded by the General Fund, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The Parks, Recreation and Community Services Agency (PRCSA) requires chemicals such as hydrochloric acid and sodium hypochlorite to disinfect public swimming pools and water fountains in the City. On April 18, 2017, the City awarded a purchase order contract for these materials to Waterline Technologies for one year with three, one-year renewal options. During the summer of 2019, the PRCSA increased pool hours and therefore additional chemicals were needed to ensure that the City's pools are clean and disinfected. Furthermore, on January 21, 2020, the City Council awarded an agreement to an aquatics operator for the management and operation of the pool programs to increase the hours of service and extend the swimming season. PRCSA anticipates a greater need for chemicals during the final period of the purchase order contract. The City has already processed a change order for an additional $25,000 under the City Manager's award authority, but City staff recommends an additional $10,000 to ensure proper pool maintenance through the current term, which ends on April 30, 2020, and an additional $50,000 for the final period, which ends April 30, 2021. 22A-1 Purchase Order Contract Amendment to Waterline Technologies March 3, 2020 Page 2 STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #6 - Community Facilities & Infrastructure, Objective #1 (establish and maintain a Community Investment Plan for all City assets), Strategy C (invest resources and technology to extend the service life of existing infrastructure to protect the City's investment and support a high quality of life standard). FISCAL IMPACT Funds are budgeted and available in the following account for the specified year for the remainder of the current term: Fiscal Accounting Fund Accounting Unit, Account Amount Year Unit -Account # Description Description FY 19-20 01113250- General Fund PRCSA-Park Facilities, $10,000 63200 Operating Materials & Supplies Bldn . & Ground Funds will be budgeted and made available in the following account for the specified year for the renewal period: Fiscal Accounting Fund Accounting Unit, Account Amount Year Unit -Account # Description Description FY 20-21 01113250- General Fund PRCSA-Park Facilities, $50,000 63200 Operating Materials & Supplies Bldn . & Ground Lisa Rudloff Executive Director Parks, Rec., and Comm. Services Agency APPROVED AS TO FUNDS AND ACCOUNT: Kathryn Downs, CPA Executive Director Finance and Management Services Agency 22A-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2020 TITLE: APPROVE CONTRACT AMENDMENTS WITH ACCO ENGINEERING, FM THOMAS, JOHNSON CONTROLS INC., AND TRANE, EXTENDING THE TERM FOR SIX MONTHS AND INCREASING THE COMPENSATION IN A COMBINED AMOUNT NOT TO EXCEED $200,000, FOR A TOTAL CONTRACT AMOUNT OF $1,400,000 FOR HEATING - VENTILATION -AIR CONDITIONING REPAIR SERVICES (SPECIFICATION NO. 15-114) CLERK OF COUNCIL USE ONLY: r_111=06 1111 ❑ As Recommended ❑ As Amended ❑ Ordinance on 1sl Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO /s/Kristine Ridge FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager to amend the contracts with ACCO Engineering, FM Thomas, Johnson Controls Inc., and Trane for Heating -Ventilation -Air Conditioning (HVAC) repair services, including emergency on -call services, extending the term for six months, from March 15, 2020 to September 30, 2020, and increasing the compensation by an amount not to exceed $200,000, for a total contract amount of $1,400,000, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION The Public Works Agency Building Maintenance Division is responsible for ensuring the City's Heating, Ventilation, and Air Conditioning (HVAC) systems at various City facilities are in good repair and working order using a combination of City staff and outside contractors. City facilities with HVAC systems include City Hall, Ross Annex -City Hall, Central Library, Police Administration Building, Corporate Yard, Santa Ana Regional Transportation Center and various community centers. To be serviced, HVAC systems include air handlers, chilled and hot water pumps, boilers, exhaust fans, cooling towers, air conditioning units, and large walk-in freezers and refrigerators. On October 16, 2015 the City released a Request for Proposal (RFP) for HVAC system repair services. Proposals were received and opened on November 12, 2015. Proposals were scored based in part on the specifications, vendor experience, financial stability, resources and pricing structure. All four proposals met the City's requirements, and in order to have the ability to provide fast and efficient service, the decision was made to enter into an agreement with all four vendors to allow staff the flexibility to contact vendors based on their areas of expertise. 22B-1 Contract Amendments for Repair of Various City Heating -Ventilation -Air Conditioning Systems March 3, 2020 Page 2 On March 15, 2016, the City Council awarded maintenance and repair services contracts to ACCO Engineering, FM Thomas, Johnson Controls Inc. and Trane, for a three-year period with a one-year renewal option. Services have been utilized through the City's Purchase Order process, and the contracts are set to expire on March 15, 2020. At this time, staff is requesting to add a combined $200,000 to the contracts and extend the term to September 30, 2020 to allow the necessary time for a Facilities Manager position to be filled, and to develop a more comprehensive RFP that results in the selection of an acceptable service provider (or providers) for HVAC system repairs. 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). FISCAL IMPACT Funds are available for expenditure as follows: Fiscal Accounting Unit- Fund Description Accounting Unit, Amount Year Account # Account Description Building & Facility, 01114403-62300 General Fund Contract Services- $35,000 FY 2019-20 police Department Professional March — June 2020 Building Maintenance, 07317100-62300 Building Maintenance Contract Services- $60,000 Professional Building & Facility, 01114403-62300 General Fund Contract Services- $40,000 police Department FY 2020-21 Professional —July-Sept. 2020 Building Maintenance, 07317100-62300 Building Maintenance Contract Services- $65,000 Professional Total: $200,000 22B-2 Contract Amendments for Repair of Various City Heating -Ventilation -Air Conditioning Systems March 3, 2020 Page 3 Nabil Saba, PE Acting Executive Director Public Works Agency David Valentin Chief of Police Santa Ana Police Department NS/TC/GL APPROVED AS TO FUNDS AND ACCOUNTS: Kathryn Downs, CPA Executive Director Finance and Management Services Agency 22B-3 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2020 TITLE APPROVE AN AGREEMENT WITH DULAC ENTERPRISES (DBA BIG RED BUS) FOR TROLLEY SERVICES FOR SPECIAL EVENTS IN THE CITY AND DOWNTOWN AREA IN AN AGGREGATE AMOUNT NOT TO EXCEED $188,800 (GENERAL FUND & NON -GENERAL FUND) CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 11' Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ Ifiel0191►111101111101 /s/Kristine Ridge FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager to execute an agreement with the Dulac Enterprises (dba Big Red Bus) for trolley transportation services in the City of Santa Ana and Downtown area, for a one-year term from March 1, 2020 through March 31, 2021, in the amount of $77,600 and an option for two one- year extensions exercisable by the City Manager and City Attorney, for an aggregate amount not to exceed of $188,800, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION In 2016, Downtown stakeholders initiated the request for trolley services with the objective of attracting jurors, visitors, residents, and local employees from the Civic Center area to the Downtown. The City launched the trolley services as a pilot program in the summer of 2016 with trolley routes from the Civic Center area to the Downtown during lunch-time hours on weekdays and during monthly Art Walk events on the first Saturday of each month. The trolley services had a positive result in increasing the customers to the Downtown during the weekday daytime hours and weekend evenings hours. The Santa Ana Business Council and Downtown Inc. are supportive of the trolley service and reported an increase in of customers in Downtown due to trolley services. During the pilot, daily ridership of the free trolley was between 80 to 100 passengers per trolley service. The trolley service was prematurely terminated in 2017 due to the vendor's inability to provide the required insurance documents, but has since fulfilled insurance requirements for the City. Due to several requests from Downtown stakeholders, the City approved a new trolley agreement in April 2019 under the City Manager's authority in the amount of $17,750 to provide trolley services during the monthly Art Walk events and other special events, which will expire March 31, 2020. In an effort to provide consistency and support to local businesses in Downtown Santa Ana, as well as other areas of the City, staff recommends that the City enter into an agreement with the trolley operator, Dulac Enterprises (dba Big Red Bus), to provide trolley services for monthly Art 25A-1 Agreement with Dulac Enterprises for Trolley Services March 3, 2020 Page 2 Walk events, Lunch Time Trolley (from the Civic Center area to Downtown), other special events including the Census 2020 Community Outreach events, and other events as needed by the City. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #3 - Economic Development, Objective 4 (continue to pursue objectives that shape downtown Santa Ana into a thriving, culturally diverse, shopping, dining, and entertainment destination), Strategy F (Partner with downtown business and merchant associations to program events that showcase restaurants, shopping and entertainment venues). FISCAL IMPACT Funding for FY 2019-20 has been budgeted as follows. Funding for subsequent years will be included in the proposed budget. Fiscal Year Account Fund Account Description Amount # Description FY 19-20 02710133- Parking Downtown Enhancements & $18,600 (Mar — Jun 2020) 62300 Enterprise Parking Modernization Plan FY 19-20 01105015- General Fund Non -Departmental $22,000 Mar — Jun 2020 62300 Census 2020 Fiscal Year Account # Fund Description Account Description Amount FY 20-21 (July 2020-Mar 02710133- Parking Downtown Enhancements & $37,000 2021 62300 Enterprise Parking Modernization Plan 'FY 20-21 (Apr 2021-Jun 02710133- Parking Downtown Enhancements & $13,950 2021 62300 Enterprise Parking Modernization Plan Fiscal Year Account # Fund Description Account Description Amount 'FY 21-22 (July 2021-Apr 02710133- Parking Downtown Enhancements & $41,650 2022 62300 Enterprise Parking Modernization Plan FY 21-22 '(May 2022-Jun 02710133- Parking Downtown Enhancements & $9,300 2023 62300 Enterprise Parking Modernization Plan Fiscal Year Account Fund Account Description Amount # Description 'FY 22-23 02710133- Parking Downtown Enhancements & (Jul 2021-May 62300 Enterprise Parking Modernization Plan $46,300 2023 25A-2 Agreement with Dulac Enterprises for Trolley Services March 3, 2020 Page 3 'Funding for the additional two one-year agreements are contingent upon approval of the City Manager and City Attorney and availability of funds. Steven A. Mendoza Executive Director Community Development Agency Exhibit: 1. Agreement APPROVED AS TO FUNDS AND ACCOUNTS: Kathryn Downs, CPA Executive Director Finance and Management Services Agency 25A-3 AGREEMENT TO PROVIDE TROLLEY SERVICES FOR DOWNTOWN AND SPECIAL SANTA ANA EVENTS THIS AGREEMENT is made and entered into on this 3`d day of March, 2020, by and between DULAC ENTERPRISES, DBA BIG RED BUS CHARTER, a California corporation ("Consultant'), and the CITY OF SANTA ANA, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of: trolley transportation for general public throughout the City of Santa Ana for monthly Art Walk events, Lunch Time Trolley (from the Civic Center area to Downtown), Census 2020 community outreach events, and for other special events as needed by the City. 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 in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform during the term of this Agreement, the tasks and obligations including all labor, materials, tools, equipment, and incidental customary work required to fully and adequately complete the services described and set forth in Exhibit A — Scope of Services, attached hereto and incorporated by reference. Routes service and dates are subject to change and can be amended upon mutual written agreement of both parties, which may be exercised by the City in a writing executed by the City Manager and City Attorney. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services for City, the rates and charges identified in Exhibit B — Compensation. For the initial term, the total sum to be expended under this Agreement shall not exceed Seventy - Seven Thousand, Six Hundred Dollars ($77,600.00). Any extensions exercised as noted in Section 3, below, shall not exceed a total of $55,600 per yearlong extension. The total amount to be expended during the term of this Agreement, including any extensions, shall not exceed $188,800. #17285v9 25A-4 b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on March 31, 2021, unless terminated earlier in accordance with Section 15, below. The City shall also have the discretion to exercise two (2) one-year extensions upon a writing executed by the City Manager and City Attorney. Thereafter, the term of this Agreement may be further extended upon a writing executed by the City Manager and City Attorney. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 6. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: #17285v9 25A-5 a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self- insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: i. Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. ii. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City. iii. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. iv. Where the amounts or coverage provided by the certificates of insurance provides coverage greater than those listed by this Agreement, the amounts provided by the certificates of insurance shall be incorporated by reference into the Agreement. V. Consultant shall supply City with a fully executed additional insured endorsement. f. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has #17285v9 25A-6 been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 7. ]INDEMNIFICATION Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Consultant, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 8. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend and indemnify the City, its officers, agents, representatives, and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by Consultant to the City pursuant to this Agreement. 9. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created #17285v9 25A-7 pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 10. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 11. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 12. NON-DISCPJ IINATION 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. 13. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any #17285v9 25A-8 party, which is not embodied herein. 14. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 15. TERNIINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product(s) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 16. 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 similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 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. PROEESSIONAL 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 #17285v9 25A-9 and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 19. 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: Steven Mendoza, Executive Director, Community Development Agency City of Santa Ana 20 Civic Center Plaza (M-xx) P.O. Box 1988 Santa Ana, California 92702 To Consultant: James DuLac Operations Manager Dulac Enterprises dba Big Red Bus 1810 E. 5s' Street Long Beach, CA 90802 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. #17285v9 25A-10 20. NUSCELLANEOUS 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. {signatures on following page} #17285v9 25A-11 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Daisy Gomez Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City By: Rya Assi RECOMMENDED FOR APPROVAL: Steven Mendoza Executive Director Community Development Agency CITY OF SANTA ANA Kristine Ridge City Manager CONSULTANT: Dulac Enterprises, dba Manager #17285v9 25A-12 EXHIBIT A SCOPE OF SERVICES SCOPE OF SERVICES: Provide Trolley transportation for a maximum capacity of 40 people to predetermined route/tops on a continues loop for two different events: 1) Art Walk that occurs on the first Saturday of each month between the hours of 6pm-10pm within the area of Downtown Santa Ana; 2) Lunch Time Trolley on Mondays between 11am-2pm; and 3) Special Events or as needed by the City of Santa Ana. Route/stops may be modified due to construction, special events, road conditions and/or traffic. Routes service and dates are subject to change and can be done so with mutual written agreement of both parties. Art Walk - 1' Saturday of Each Month - 6pm-10om March 7, 2020 January 2, 2021 April 4, 2020 February 6, 2021 May 2, 2020 March 6, 2021 June 6, 2020 July 4, 2020 August 1, 2020 September 5, 2020 October 3, 2020 November 7, 2020 December 5, 2020 Monday Lunch Time Trolley - Every Monday - 11am-2pm March 9, 16, 13, 30 April 6, 13, 20, 27 May 4, 11, 18, -5 June 1, 8, 15, 22, 29 July 6, 13, 20, 27 August 3, 10, 17, 24, 31 September 7, 14, 21, 28 October 5, 42, 19, 26 November 2, 9, 16, 23, 30 December 7, 14, 21, 28 January 4, 11, 48, 25 February 1, 8, -15, 22 March 1, 8, 15, 22, 29 Special Events or As Needed by the City 2020-2021 - dates and times for special events or as needed to be determined by the City of Santa Ana COST: $1,250 for Art Walk; $600 for Lunch Time Trolley; and $600 per hour for Special Events or as needed TROLLEY: 1 CAPACITY: 40 ROUTE/ITINERARY: 1) Art Walk - loop trolley throughout Downtown Santa Ana between Ross to Mortimer and 1� Street to 5' Street. 2) Monday Lunch Time - loop from Civic Center area to various locations throughout Downtown Santa Ana 3) Special Events - route determined per special event in coordination with City staff and Big Red Bus staff #17285V9 25A-13 EXHIBIT B - COMPENSATION Total Compensation not to exceed an annual amount of $77,600 SaturdayArt Walk — 1st 6prn-10prn Date Cost March 7, 2020 $1,250 April 4, 2020 $1,250 May 2 2020 $1,250 June 6 2020 $1,250 July 4 2020 $1,250 August 1 2020 $1,250 September 5, 2020 $1,250 October 3, 2020 $1,250 November 7, 2020 $1,250 (trolley not available per vendor ^^^ ~~^-5, 2020 January 2, 2021 $1,250 February 6, 2021 $1,250 March 6 2021 $1,250 Sub -Total $15,000 Lunch Time Dates March 9, April 6 May 4 16, 13 11 Trolley 13, 20 18 30 27 2§ — Every Monday # of Days per Month 4 x $600 4 x 600 3 x 600 Monthly Total $2,400 $2,400 $1,800 June 1 8 15 22 29 5 x 600 $3,000 July 6 13 20 27 4 x 600 $2,400 August 3 10 17 24 31 5 x 600 $3,000 September - 14 21 28 3 x 600 $1,800 October 5, Ti, 19, 26 3 x $600 $1,800 November 2, 9, 16, 23, 30 5 x $600 $3,000 December 7, 14, 21, 28 4 x $600 $2,400 January 4, 11, i-&, 25, 2021 3 x $600 $1,800 February 1 8 3s 22 2021 3 x 600 $1,800 March 1 8 15 22 29 2021 5 x 600 $3,000 51 Mondays Sub -Total $30,600 #17285v9 25A-14 EXHIBIT B — COMPENSATION (Continued) Date Tentative March 21 March 28 April 4 April 18 April 25 May 2 May 9 May 16 May 30 June 6 June 13 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 Cost $1,800 $1,800 $1,800 $1,800 $1,800 $1,800 $1,800 $1,800 $1,800 $1,800 $1,800 ial Event Date 400 Sub -Total $22,000 !11 Events & As -Needed Trolley Service Dates Hourly Monthly Total Rate Special Event Dates & Times to be $600 Maximum of $10,000 Determined by City of Santa Ana Sub -Total $10,000 #17285v9 25A-15 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2020 TITLE APPROVE AN AGREEMENT WITH WHITE NELSON DIEHL EVANS LLP TO PROVIDE PROFESSIONAL AUDITING SERVICES IN AN AMOUNT NOT TO EXCEED $371,260 /s/Kristine Ridge CITY MANAGER CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1"Reading ❑ Ordinance on 2n° Reading ❑ Implementing Resolution ❑ Set Public Hearing For Well 0191►1111011[w FILE NUMBER RECOMMENDED ACTION Authorize the City Manager to execute an agreement with White Nelson Diehl Evans LLP to provide professional auditing services in the amount of $185,630, with a provision for one one-year renewal in the amount of $185,630 for the period from March 3, 2020 through the completion of services for the fiscal year ending on June 30, 2021, for a total amount not to exceed $371,260 subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION The Finance and Management Services Agency (FMSA) is responsible for overseeing the financial statement audits and examinations of the City along with the preparation of the City's Comprehensive Annual Financial Report (CAFR). Annually, the City of Santa Ana utilizes the services of an independent Certified Public Accounting firm to perform examinations of the City's financial statements as well as state and federal grant audits (Single Audit). The audits are conducted in accordance with the generally accepted auditing standards and the Government Auditing Standards issued by the Comptroller General of the United States. During February 2016, FMSA released a Request for Proposals (RFP) for professional auditing services. Based on FMSA's evaluation and review of references, White Nelson Diehl Evans LLP (WNDE) was selected as the most qualified firm to conduct the City's annual audit(s) and examinations. As a result, the City awarded a contract to WNDE for a two-year period with a provision for one two-year renewal exercisable by the City Manager for the fiscal years ended June 30, 2016 through June 30, 2019. The City exercised the renewal option in January 2018 which allowed for services to be rendered through May 2020. 25B-1 Approve Agreement with White Nelson Diehl Evans LLP for Professional Auditing Services March 3, 2020 Page 2 Below is a list of the audits/examinations conducted by WNDE since 2016: Audit / Examination Type Description Comprehensive Annual Financial Re port Review of City's Annual Financial Statements Single Audit Review of City's Federal Grant Programs Gann Limit Determine City's compliance with State law Investment Policy Agreed Upon Procedures Determine City's compliance with its investment Policy Air Quality Management District Audit Determine City's compliance with State law Measure X (Agreed Upon Procedures) Review of City's Measure X revenue/expenditure spending The Governmental Standards Board (GASB) has issued two (2) new rules related to accounting for the City's leases and fiduciary activities that will impact the City's financial statements. Due to the complexity of these new rules and the significant impact they have on the City's CAFR, staff needs to work closely with the City's external auditors throughout the next two fiscal years to ensure the City meets the new financial reporting requirements. WNDE's high level of technical knowledge in the field of government accounting and auditing along with their experience with the City's fund structure and operations will allow the City to implement the new standards in the most efficient manner. The recommended extension will result in a total of six service years from WNDE. The Government Finance Officers Association issued a Best Practice for audit procurement, recommending governmental entities should enter into multiyear agreements of at least five years to allow for continuity and to minimize disruption. There is a belief that auditor independence is enhanced by auditor rotation at the end of each multiyear agreement. Therefore, staff will schedule issuance of a Request for Proposals for independent audit services during Fiscal Year 2020-21. WNDE has agreed to reduce its total not to exceed contract amount by approximately $11,000 per year during the new contract term. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #7 - Team Santa Ana, Objective #5 (create a culture of innovation and efficiency within the organization), Strategy F (Explore opportunities to engage with outside agencies, both private and public, to share information and increase efficiencies). FISCAL IMPACT Funds for these services will be included in the following fiscal years' budget within the accounts noted below along with their respective audit related costs. The allocations are subject to non - substantive changes based on the actual work performed. 25B-2 Approve Agreement with White Nelson Diehl Evans LLP for Professional Auditing Services March 3, 2020 Page 3 Year 1 (Audit of FY 2019-20) Fiscal Year Amount FY 2019-20 45,000 FY 2020-21 55,000 FY 2020-21 2,275 FY 2020-21 3,475 FY 2020-21 23,500 FY 2020-21 10,500 FY 2020-21 45,880 Total 181,630 Fiscal Year Amount FY 2019-20 45,000 FY 2020-21 55,000 FY 2020-21 2,275 FY 2020-21 3,475 FY 2020-21 23,500 FY 2020-21 10,500 FY 2020-21 45,880 Total 185,630 01110110-62300 01110110-62300 01110130-62300 03116510-62300 14018760-62400 67118021-62400 Various Accounts 01110110-62300 01110110-62300 01110130-62300 General Fund General Fund General Fund Air Quality Improvement Fund Housing Authority - Voucher Admin Fund COSA RDA Obligation Retirement Fund General Fund & Various Grant Funds Fund Desc General Fund General Fund General Fund 14018760-62400 IHousing Authority -Voucher Admin Fund 67118021-62400 1 COSA RDA Obligation Retirement Fund Various I General Fund & Various Grant Funds APPROVED AS TO FUNDS & ACCOUNTS: Kathryn Downs, CPA Executive Director Finance and Management Services Agency Exhibit: 1. Professional Services Agreement — Audit Services 25B-3 EXHIBIT 7 AGREEMENT WITH WHITE NELSON DIEHL EVAN9 L,LP TO PROVIDE AUDITING SERVICES TIi`l$ AGREEMENT is:made and entered into on this PL day of Match, 2020'by and between White Nelaoa DiehlEvans LLP, a. Limited liability. partnership, ('!Auditor'�And the City of Santa: Ana, a charter City and municipal corporation organized and:existing under the Constitution and larva of the State of California ("City'.). RECITALS A. The;City desires. to retain an Audrtot' having special skill and knowledge; in the fold of providiriS;ptofessional'auditing services; B. Auditor represents it is recognized as "a eoinpetant and. qualified certified public aacoi nkant, duly, authorized to 'practiee and licensed :as such by the: California State Board of Aecotmumpy,, and isable andwilling to; provide auditing services to the. City. C, in undeitalting the performance: of this Agreement, Auditor represents that it. is. knowledgeable in its field .and that any servi'cos performed by Auditor under this .Agreementwill .be perfor me l fn compliance with such standards as may reasonably be, expected,from a professional. consulting:firm, in the fiold; NOW THEREFORE, in consideration, .ofthe,mutual and' respectivepromisesy, and subject to the terms and conditions hereinafter set. forth, the patties agree 4611,owsi, >l.: SC.C11?L..CDF S ktVICE$ Auditor shall perfonrh its Annual Independent Audit for the two fiscal :years ending June. 3A, 2p20 and lurte 30, 2021. Services;shall be performed pursuant to. the Auditor's Unuaty 14 . 202% proposal attached hereto ss'Exhibit A. The Eirenutive Direotorof Finance.and Management Services. Agency for the, 0-Won issue a written mquest tbat Auditor provide' o4wr auditing services during this tem. Any increase; in the overall coir pensation, `noted in."aecrion 2.a ksclor�r, for said services are subjeet. ta'apgroval by the City Council for the City of Santa Ana. 2. COMPENSATION ATION a. City agrees to pay; ',and Auditor agrees to; accept: gi total. payment for its services for City,'the,rates and charges idtntitied;in Exhl6k,& The toial, sum to'be:expended during the hutial term fot4he Asaal.. year ending.Iune.30,.2U20 shall not exceed 185,630: The total som. to be expended, for -an extettsion period a .#rcised.per Section 3, below, for the f�rscal:year;endinglime 30,.2021 shall not exceed $1$5,00. The total amount to be expended during'the:torn of this Agreement sligll not exceed .$371,20., b.. Payments to Auditor s1iail be made wltlun forty-five (45) days lifter receipt by City Of invoices from Auditor, which shall be rendered not more often than monthly: Special examinations, surveys, or detailed reports of any nature: outside .tire. scope of this Agmenient.shall be [filled separately by Auditor and must bespceifically authorized in #2'79C5'v2 Page 1 of 9 25B-4 . writingby City In advarievifsachadclitional services proposed to be, provided. Payment need not bo%made :for work which fails to meet the standards of per'fonnance serforth in the Recitals ,which:ihAyteagoiiabI he expected. by City. I 3. TERM This Agreemont shall cotrarienee on thordate hest written above. and continue through the completionof services: for the fiscal year ending on hice 30, 2020, City halt retain an option to extend auditing services Oran %additional Iiscpl year ending June 30, 2021, subject to.none substantive chingies approved� unlos tile -Agreement i by the City. Manager and City Attomoy s: the Ag terminated earlier iii:aceordaace with:Section i4, below. 4, INDUENDENT CONTRAMOR Auditor shall, during:the entire term ofthis Agreement; be construed to be M independent Auditor add not aA employee of the City, This Agreement is riot imetided nor shall, it be Construed loyer"empt"t the City to P n or control 0 retio to create mr� ex�ge di which are the sub ect matter 0 by Auditor Bb pro ided in atifte erni all be A am r SOV �� 118 each services. hall h egi e$' Auditor 8 pay ail salaries and wages; employer's social set unity taxes, UaMployrnent insurance and s ible for all oplic,ablp withholding taxes $. DELIVER OF WORK PRODUCT - OWNERS" Auditor' warrants and represents that it imthe Industry. Auditor' a or, an or party, Auditor shall delivatte Qity an; Said work product shall be submitted in 1 $ information systfts,..os ggredd bewdoh ,P ot,includini& Works to be Produced mprietary or persotial rights of any duct WW' ph results from & services andproducedin a form compatible ,t Ma** and Auditor; In regard to altmiit6rid produced as. 4 deliverOhlei under thio Agredinent, including but not limited to records,, papers, drawings, specifications, , programs, systems and other materials vro wv� 11 .Pared by Auditor Auditor for itself And its, anwed oiTmors cm—ploymv •agents'. contractors, and volunteer wmrkers� dial (a) other. such material shall - be the prop ory of the City;; and may not be copyrighted. without prior review from the City, and (b) the authors of all such material, whetbcr copyrighted or not, award to the City, and. Wits offioers,, agents and employees; acting within he. scope of their official duties, as a condition of payment to the Auditorva royalty - free, .tionexclvaime, irrevocable, license.0iroughout: the wQ.rld for gqvepunontal purposes to disclose„ publish, trafistiaje, reproduce,: and use such; materials. #27065mi. 'Page 2 org: 25B-5 64 INSVRANCE. Prior to undertaking performance. of work under this. Agreement,. Auditor shall maintain and shall require its subcontractors, if.any,,to obtain and maintain insurance as describedbelow-, 0. Commercial General Liability lbsuranop, Auditor shall maintain commercial general liability insurance naming, the City, its, o.fAcers, employees, agents.; Volunwers:.and fispresentatives -4s:4ddltional IMuttd(s),abd shall, ifthide,, but not 66 limited to projection iagainst. claims -arising. from bodily and personal: injury, including death resulting.1hereftom and" damage toproperty, resulting from .arty act or occurrence: arising out of Auditors operations, In the performance of this Agreement, including,:without Iimlta#(?n, sets Invo.1vingvehiclos, TIT artioupts of insurance shall be not less, than the folloWing:Aingie: 61t. Oftrage applying to bodily and personal injury,., including death resufting, therchm, and property daffiag% in the tot al amount c, ' f $ 1,000j000 per occurrence,'with $2,000X'a in the aggregate. . Such insurance shall. (a) name &btyj its OfficOrs, employees., agents,, and representatives as• a. dditiona-I . insur ed (b) bpprimary and not IaQntri6utor y W respect ect to insurance or by the City; and (o) contain dm&wd separation ofinsureds.proi iiioras- bm f3usinem automobile liability-Misurabbe, or oquivalctit formi with:4 corablood single limit of net less than $ 1,000,000 per oecorrou= Such insurance shall Include coverage for'owned, hired and non awned autom6biles; P. Worker's.. Compensation InstnariCo. in ac.cordpAce wfth the proyisi6ns of Seetibn 3700 of the Labor Code., Auditor, if Auditor has. arty employees, is required to be Prior to commencing tine performanco of the, work under this. Agreement, AnditOr agrees to obtain-aadmaintairi arty. employeesliability insurance witfilmits.not less. than $1,900jO.0p per accident, ma licensed on architect te r .d. If Auditor is r employ c weiii OVQ engineer: Professional liability (errors and emissions) InsunLrh ,,e, With a combined single limit J of not icsst[um%il,666,000 per claim With $2,000j=.fii tile: aggregate, .6. This following requirements apply to the Insurance, to bid: provided by Auditor pursuant tothis section,, i. Audit& ftlItnaintain all insurance required abovef in Jilin force andeffect for the entire period covered by this Agreement I Ce%Mat&.of Insurance shall be f4mished to the city upon execution of Ng- Agmemetit Atid. shall be approved by the City, iii., Certiocotes and policies shall: state that: the pohoJes, shaTI not be oanG.ele l or reduce4 !A coverage or.changedla atty other OaterW Aspect without thirty iv. Where tiler amounts orcoveragee provided by the.cou'llcales of hisoranco, Okovidos coverage greater than those listed by this, Agreement the srh6onts provided by the certificates ofinsurance shall be incorporated .4yreferoncp into. the Agreement. Page 3 of 9 #279,65V2 v. Auditor shall supply City with av fully executed additional insured endorsement. f. If Auditor. fails or refu,ses to -,produce. or maintain the ,insurance required by this section -or falls or refuses I I tofirrdib the City with required proof that, insurance has been prap4red and tP.in force an. dpaid fbr,.th P City shall have the right, at. the City's election, to forthwith terminate this agreement.. Such termination. shallnot affoct Auditor's right to bapald tbr its time and materials oxpended.prior to notification of termirigboo. Auditor waives -the, right to receive compensation And agrees to indemnify the City for any work performed prior to approval of itisuranot by the City . 'Y 1. NDN IMCATION Auditor a*ves to defend,, and: shall indemnify and hold harmless the City, its officers, agents, employm,:contractors, special counsel, and representatives from liability:: (I ) for personal injury,. 0.4- magosy just compensgtiod, rostitu.46nJudicial or equitable relief 46isingout o, f claims for personal injury, including. dook and claims for property damage, which May arias fi-Orn the negligent opera Auditor,; I sub agents, omp P os� or, other erspris ftogg tions,oflheAu4 ts Watr4c.toP, S i ye_ P *bed in section I of this Agreement,,, and which relates to the services d6sm 2) from, any. claim that personal mjuryy damages, just compensation, restitution, judicial.Qr oqgiWo Telidf. is. 44.0 by'. reason: of the jorro of or e)ffects-;qMns, from this Nwoemont, This. indemnity and hold harmloss. agreemo . nt:applfes to all claims for .damages, just compensation,, restitution, judicial or e alleged to have been suffo�,ed, by re f e quitablq relief suffered, or atic wsont) the y.ent.s referred'to III this Section or by reason of the terms of, or effbotR)atishig from. this Agreement. The Auditor further agrees to.indemnif S4 y, hold harmless, And pay all costs for, the defense of the City, including: kps-sud.costs for special Pounioltoboselout0by the City,49gardiugany action by athird pa Id y challenging the.for o6his Agreement, or asserting tUt oetional iajuryj damages; just c9mp ation, restitO ens . on, -judicial or equitable relief due to personal or property rights arises by reason of the terms, of, or effects ariAWg ftom this Agreou out, Oty, may make all reasonable docisiouswith respect to,itsxeprosentottoo in any lopl proceeding, Notwithstandiug.tho forcs6mig, to the ox-t0t Auditor's services are sukept $- Chit Qo&Section 2782.8i the '.dbo 14demofty sball be, limited; to the extent required by Civil Code Section 2782,8, to claims that ariso out .otpertain. to, orxelate:(othe .nogligenc% recklessness, or w..illful misconduct of the Auditor; & RECORDS Auditor shall keep records and invoices In connection: with the work.to be, peormeduadcr this Agreement, Auditor shall maintain; complete and geeucatg recordswith.respeet to the posts. Incurred under thins Agreement and ahystrvicbs, expenditures; And diAbxu.-se4uefttsdharS'pd to the City for a minimumpetiod of:three:() yekirs,.or .for any longer oriod required.by,14w, frotn, the: .date of final paymofit'tO Auditor under this Agrodhient. Atli such. recardi And invoices shall be. clearly idonAobb& Auditor shall allow a reproscutat , lye of the City to examine, audit, and foakez transoripts. Or copies of such records and any other documents created pursuant. to this Agreement during;'regular business. hours. Auditor shall allow inspection of all work-, data, documents-, proceedings, and'Wivities,Y614tod to this.Agreenignt for a period of three ().years ftm: the'date of final pdymexit to -Auditor undo this. Ageoement. #21,965v2, Page A of 9 25B-7 9. CONFIDFNTIALITY All information gained by Auditor in poifbnnaftoe ofthis, AOmeht iliPil be considered confidential ,and shall :not be released by Auditor without City's prior written authorization. excepting that ,information which is a Public record. anti subject todisolosure pursuant to the C41M64. Public Records, Act) govehuneht Cod d Section: 62,50 et. seq.r Auditor, employees, agents,. or subcontraetnrs, shall 'not votuotarilyprovide 4e4arAtiots, letters of.support, testimony .Pt. depositions, response zto. interrogatories of other: project.. or cooperate; in any way. with a -party. who. may. be adverse to. City or whom: Auditor reasonably should'know maybAcad . vase in ,any subsequent. lifigatiom Auditor shall -ingur no; liability under. this Agreement for materials sUbm! . submittal by it, whi6h are I'mor released by City . 1. . . A its, officers,, Auditor shall also.., ina—ff no,'-Habifity fo 6 it at. gay or agents. rltatemoms,madv Y gay public. moed : ug, ;or f9r, . any -docum.putrelwed,by it for which prior written City quthqrizPtibp, was: obtained. .if Auditor or any of Its offiq0s;.empilqyeos, consultants; or subcofi(taqtbrs does voluntarily, provide information in violation of thisAgreement, City has, the. fight to, reimbursement and indemnity from Auditor for Puy damages caused by Auditor's cord4et --including attome5ds foes. I Auditor shall promptly notify City should Auditor,. its officers„ employees, Aputs or, f6eDdeuments, party r,Wdiog this.agreoment. adtho work perf?mpd.ho= retains the sight, but not tile.dqr� City r ohliggioo,. to represent Auditor and/ or to be present. 'At any dopctitionr hew , 4Z or similar proaceding..Alwitor agrees to cooperate fully with City and to,.provide City with the opportunity to:roviewa,aytespojisdtqdiscovery To,qqoots:provi44OXA,qditpr. However, City's righC toroviow. any such,, response: does not: imply or mean the right . by City to control, direct,., or rewrlto:said, response.. City warrants that Auditor will have fully met the requirements of this provision by obtaining City's written approval prior t iding. 460 cuts . jarati3O : p: providing testimony, Or %lqq 0 Consulting with City before respbndiog.to.4S4bpo'emoro(itirtorder; hithe .case. t) 4paitiong upon providing Notice to. City of same; or providing, C , ity. opportunity to review discovery FeSP01V I CS prior 441415ffllbft For purpposos of this section, a wrxttemt attliarization.'frotn. City shall include an email or "taxed" Idlef, 14. CONFLICT OF INTEREST CLAMS Auditot cov'06464 that it-OrWiltlY has no interests and shall not have interests, dirdc:Aor, indirect, which w.WU conflict In. Any maher'with perform4uft of services,spoeffied under this' Agreement. ;11. NON�DISMIMINATXON Auditor shall not discrirninatobecause of race, color, ereed;: religion, sex, marital, status, sexual orientation,.gender identity, gender expression,: gender, tfic(lical. -conditions, genetic. Page$of Or #2,79.63v-2. inforination, or military and. veteran status, age, natlonsl origi ancestry, at disability; as defined' and prohibited by applicable law, in the recruitmient, selection, teaching, training,utilization, proruotion termination or other employment related activities or any services;provided under this' Agreement, Auditor affirms. That it is an equal opportunity employer and. shall comply with all applicable federal;'state and local- laws and regulations. 12: EXCLU$I VIT:Y AN AMENDMENT This Agreement represents the complete and exclusive statemcot between the, City and Auditor amd supersedes anyand all otfiez agreetnerits, oral ox written, between the>parties. In the event of a conflict between the terms°of this Agreement.and. auy,attaoliments hereto, the -terms of this Agreement shall prevail: This Agreomentmay not be.modihed except by written inatrutnent signed by the Cityend by ati aathorize3:repraSoWtive ofAuditor.. The parties agree that any: Perms or conditions of any purchase otder or other instrument: that are inconsistent withy or imaddition to, the tocros and conditions: hereof; shall not hind or obligate Auditor or the 1:Y, Each: party to this ,Agreement acknowledges that no representations, inducements,. promises or agreements,:. orally or otherwise, have.beenmade:byany:party„or-anyone acting on behalf.of.any party, which is notonibodied heroin. 1$., ASSIGNMENT* fnasmach as: this A,groom ot: is intemded to secure' the specialized: services of A:uditor,. Auditor may not assign; tr4a*ri delegate, or subcontraet any interest herein Without: tho prior.: written consent of the City and any such assignment, transfer; delegation or subcontract without; theCity's prior written consent shall be: considereci:null ard:void. NzStliing in this RgYestdeiit:shall: be construed to limit the City's ability to have any of the services which are the: subject to this. Agreement performed' by Cliy personnel:or byother consultants retuincd by City. 1C TERMINATION It at any time during the term of'this . Agreemment, City determines that.Auaitor is not faithfully abiding by any term or condition contained heroin,. City may notify .Auditor in writing. of suckdefect or fk lure to,perform, Which notice• must give Auditor a fin tl'tft-daynotice of tinic. thereafter in which to perfd t said work or cure the defieiency. If Auditor has -,not petfotined'the- work or cured the deficiency within: the ten (W). days.,specified WA a notiop, such shallsconstitute to the: Auditor :to;said effect' Thereafter, neither.party shall os. ponsibilsties ar rights. under this. Agreement exeept„ h Auditor's surety shall tcmakin fall fdree and.c#dct, acid she any manner waived; by the -termination hereof In said:ev.: reasonable value of its. services performed from the beginni occurs up.: to. the day it received City's Notice of term ratio representing the City's damages froth such breach. City r pavruentuntil completion or confirmed 'abandonment of the shall #2796$v2. any and fill obligations of s.:extinguished,redueed,orin litor shall be :entitled to. the e period in which the breach nyy offset from such. payment. tlte'right to delay any such as, may be determined in. the frosts. to no event, however, Page,:6 of 9 25B-9 15. WAIVER ND waiver of breach, failure bf iny condition,, or any d&t, or remedy contained in or previsions 'ft, Agoemen d Mgned by f�. i Ujuro, right failure or.right, gr waiver of any granted by t'� the breach, the party waiving remed y shall b 4 in a ot or not similar, nor shall my waiver constitute a cvntinuntg;waiver untegs the writing, so aifm 16. JURISDICTION " V9MM Thi&A . ornia gredmetithqs been auddefiyeredin the State of CAlifand the validity, rotation, performancei and en torcementof an y o he. interpretation, of clauses: otthis .Agreementshall be: determined and govemed by the 14.Ws, f the State.qf P.aliftnia. 13 ,par.6 *rther 4grw; .. 9, ..Qth "" _ . that OrangeCoiftity,,Cdfilbmia, shill be the venue for any :46tion, or proceeding that tray b4brought 6k arise rise out of, in.mmec , WnWlth, or by reason: ofthis Agreement, 17. PROFESSIONAL LICENS96S Auditor ilitill, throughout the torm of this Agreftolit.,maintain A necessary li.cOmm permits, approvals, waivers, and exemptions necessary for the provisiotiof the. services hereunder and tcqWrWbY:the laws aod koguladdos of.the QnJt6d.SfaW,, the.sWe. Of California, the" City Of Santa Ana and 91 other govermental agencies: Auditor sh4li.no.dfy-the::City:!mM6diatdiY:69d:in writing :qf itsInibilityto obtain or ingintain such permits, licenses, approvals, waivers; and exemptions: Said blibility shall be Cause for tOrmlit4tio bftuffs A#eernO4 is. sonqt Any notiqo,,tend.or, d shill be in writing and shall first class or ordfi4d roal, t $00ion, Clerk of the City Council bity of Santa Ana 20.Civic CentdPlaza (M-30) Santa Ana, Ok 92702,1988 Fora 714- 647-6950, With courtesy .cop ies to: or ether [,.or sent by fax:ot- followin.9perSM: txecutiye Director, Fixiatice and Modgement 904 Services A cY City 064ma!Aaa 1 2OCMc.ContcrPlaza (M-l7) pursiggit, tq thisAgreement red in popq;x or mailed by Pagel of9 #27965v2 25B-1 0 P10, Box 1988 Santa,Ana, 04130mi4:9270Z F#x; 71:4-647-5414. To Auditer, White Nelson, Diehl Evans; W Certified Public:Accountants and Consultants Attn- Nitin Patel 2875:Micbelk Dn* Stlite 1,90 Ir"nei-CA, 02606w5165 F= 71449$�51.-81 A party may.change its, address by giving.notice In writing to the other party, Tficreater, any communication. . shot! boAdId.rossed. and transmitted to the new tiddresS. If sent by, hiaill 00niniumcgood shall bo effective or &erned: to have been. given, three (3) days after it has been deposited in the, Urutid. States mail, duly: registered or certified, with postage prepaid, and addressed "got forth above; If sent by fox-, WMmOhidation shall be.effective ordeemed .tit have beeft.Sivba twenty4but (24) hours -after the time Efetfortlt on the transmission, report issued by. the: transmitting facsimile mac , addressed as set forth. Above. For purposes. of calculating i6ese• time frame$, weekends, tfederAij d4fej C ounty or.'eity 6ii&ys: shaft.bo, coluded. 19. MIKELLANWOUS PROVISIONS a. Eaeh i atstbg its iigg$ure hatih bel6w.has, the mdersigned represents And warro power,, authority and right to bind. their reapdotivd.pas tes to each of the terms of this Agreement and shall fa6nmify City tally, including. reasonable costs. and gttprnpys'feo Apy'lNurl"or 4MA - ''. . event.. s, f6e. d gek to City W the 14t,such4400ft, or power is not., in fact, held by, the signatoryor is withdrawn. A 'nib AgNement is the. final and: complete agreement, And any prior or oontemporancous Agreements. for similar sorvi'm between the, parties is superseded by this ' -Agr6cmOxit, fh'ts. shall nct apply wircre the Parties are currently erigr ged andAuditor laprolding services not contemplated by this Agreement. Mj Exhibits referenced herein And•att * adhed herw:iUlbe 1ncoqorated::ds it Mly: set forth in the body of this Agreement, #27965,v,2 isipolrov4se follows,] P'4 8'of 9 25B-1 1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA Daisy Gomez KristineRidge Clerk of the Council City Manager APPROVED AS TO FORM. SONIA R. CARVALHO WHITE NELSON DIEHL EVANS LLP City Attorney Lisa &6-rck Nitin Patel Assistant City Attorney Engagement Partner RECOMMENDED FOR APPROVAL: Kathryn Do*ns, CPA Executive Director Finance and Management Services Agency #27965Q2 Page 9 of 9 25B-1 2 MOW A SCOPE Of SERVICES 4 RATES 25B-1 3 Jadwry 14,2020 ,Ms. Kathryn: Downs DitedtorOfFinanoe city of Santa 20 Civic Center.Plaza Shift Ana,. Ch,:92701 We. ate pleased that the 'City of Santa Ana .wouldli�,e. to extend our agmement to: provide 4udft'.Oo mices for theifiscal year: 2619.20 1 �with Art OPUOn for the fiscal year ib*i 1. W. hltoNelson NOW Evans LLP specializos in aj)dits of cities andhap. an extensive government: servidostaff, which. will enable us to continue to provide the same ItWU of`services WO hAVO provided In the past. four. years. The proposed *es shown in the enclosed attachment contain. a 7.6% discount frowthe fiscal year 2.01&10 £a" and haveno increase.: from fiscal year 20T9-20 to 2020m2 L I if you have questions, On the ppposed'fees; please contact me at (71,4).979-1300 or by ernaff at npat6l@wftdecpft.POm. Very truly yours, WHITE NELSON DIEHL EVANS, LLP Nitin P..Patel$ CPA Efigggement Parther 2976 Mkholle Ddve, Suitt 300 .1 Thdrt, nua 0.26.06 1 WNDECPA-ebm 1 7 M978-1$00 25B-14 CITY OF SANTA ANA P-110111AM1111 �Aial Our maxiinnum, fees f6r the two years onciftlS jun6,3Q, 2021 will be as fbilows: Fiscal Year D!satiAicm of Sewfoes 20U620 269041 City auditmallidin$ management .wo,au0it.commildea ldttm. $ 10.10001 $ 10,000 SInsic.Audkof Fedbral:Gwaft 39,720 3&720 AQMD audit of.thoXEP Ouality Improvement Punif jins, 3,475. 0ANN.Wmlt,.UvleW 995 896 Compliance Acylowphlic Cio,!s lhveslinai t Pollcy, 4;$sb -4,550 Preparation of the Santa Anw-HmWh9:AUthorfty!s Finao0fal.bats-Scliedule 050! 1,350 Preparation of the Clty's state conirolleei Repon 01600 $,.60D MoasureX,Agmed qp.bn Praidd4ro MOO 71660 Total A1l4xmfasNcMqxlMUm,Pdcw T.wo:Ag*cd-UponPr000dim6sAwfews, 19,040 tes for toe agreed -upon pr000durdswe estimead pd'subjodte. nogotiation;,oha Ae 8popa of.* c. 25B-1 5 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2020 TITLE: APPROVE AN AGREEMENT WITH SO CAL RIDES, LLC. FOR CARNIVAL SERVICES AT CITY EVENTS FOR AN AMOUNT PAYABLE TO THE CITY OF 25 PERCENT OF GROSS SALES (30 PERCENT FOR ADVANCE SALES) WITH FUNDS TO BE DEPOSITED IN THE GENERAL FUND /s/Kristine CITY MANAGER 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 RECOMMENDED ACTION Authorize the City Manager to execute an agreement with So Cal Rides, LLC for carnival services at City events for an amount payable to the City of 25 percent of gross sales (30 percent for advance sales) for the period March 20, 2020 to March 2, 2023 with funds to be deposited in the General Fund, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION On November 7, 2019, the City of Santa Ana issued Request for Proposal (RFP) Number 19-113 for various special event services. The RFP supports the Parks, Recreation, and Community Services Agency (PRCSA) efforts to bring together many elements needed to provide multiple city -produced events throughout the year. An evaluation committee consisting of representatives from PRCSA reviewed and rated the proposals according to the criteria listed in the RFP, which includes firm/team experience, references/relevant experience, manner for performing services and fees. The results of the RFP evaluation included the City receiving two proposals, one of which was non -responsive. The committee evaluated the one responsive proposal and determined the company is qualified to provide carnival services. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Strategic Plan Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #4 (support neighborhood vitality and livability). FISCAL IMPACT The Agreement includes So Cal Rides paying the City 25 percent of gross sales earned at each event and 30 percent of gross sales earned from advance purchases. Funds will be deposited in the following account for the specified years: 25C-1 Agreement with So Cal Rides, LLC for Carnival Services at City Events March 3, 2020 Page 2 Fiscal Accounting Fund Accounting Unit, Account Amount Year Unit -Account # Description Description FY 20-21 01113002-53331 General Fund PRCSA-City Events Estimate $5,000 -7,500 FY 21-22 01113002-53331 General Fund PRCSA-City Events Estimate $5,000 -7,500 FY 22-23 01113002-53331 General Fund PRCSA-City Events Estimate $5,000 -7,500 Lisa Rudloff Executive Director Parks, Recreation, and Community Services Agency Exhibit: 1. Agreement APPROVED AS TO FUNDS AND ACCOUNT: Kathryn Downs, CPA Executive Director Finance and Management Services Agency 25C-2 AGREEMENT BETWEEN THE CITY OF SANTA ANA AND SOCAL-RIDES, LLC. THIS AGREEMENT is hereby made and entered into this 3rd day of March, 2020, 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 SoCal-Rides, LLC a California Limited Liability Company ("Consultant"). RECITALS A. The City issued Request for Proposal ("RFP") 19-113 on November 7, 2019 for various services for City events. City's RFP is incorporated herein by reference as though fully set forth below. B. Consultant submitted a proposal in response to REP 19-113 and has been selected for award of the contract for carnival services B. 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 firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: SCOPE OF SERVICES Consultant shall provide carnival services for City events when requested by City as outlined in more detail in the scope of services from City's REP attached as Exhibit "A" and the portion of Consultant's proposal outlining the manner in which it will provide services attached as Exhibit `B." All Exhibits are incorporated by reference as though completely set forth herein. The specific services (i.e. amount and type of rides/games) to be provided to City for that event will be confirmed in writing by the parties prior to the event. 2. COMPENSATION The parties agree that Consultant will pay to City thirty percent (30%) of gross ticket sales for pre -sale and advance sale tickets for all City event(s) and twenty-five percent (25%) of gross ticket sales from the day(s) of the event. Consultant will provide an accounting to City of gross ticket sales for each event including advance or pre -sale tickets where applicable and provide payment by check or ACH within thirty (30) days after each event concludes. 3. TERM The term of this Agreement shall commence on the date written above and terminate on March 2, 2023, unless terminated earlier in accordance with Section 13, below. Pagel of 8 #21732v1 25C-3 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, ajoint 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. 5. 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 negligent operations in the performance of this Agreement, including, without limitation, acts involving vehicles. This insurance policy shall not have an exclusion for sexual molestation. 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, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. Page 2 of 8 #21732v1 25C-4 e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. (iv) Consultant shall supply City with fully executed additional insured endorsement. f If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to 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 defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Consultant, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. Page 3 of 8 #21732v1 25C-5 RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 8. 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 rightful 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. 9. 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 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: Page 4 of 8 #21732vt 25C-6 To City: City of Santa Ana City Clerk (M-30) 20 Civic Center Plaza P.O. Box 1988 Santa Ana, California 92702 With copy to: Executive Director of Parks, Recreation and Community Services City of Santa Ana 20 Civic Center Plaza (M-23) P.O. Box 1988 Santa Ana, California 92702 Fax (714) 571-4211 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: Mr. Chris Guadagno, Managing Member SoCal-Rides, LLC. 10511 Genoa Street Huntington Beach, California Fax (714) 379-5191 Email: eguadagno@socalrides.com A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by facsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant regarding the subject matter herein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the 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 Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, that terms or conditions hereof, shall not bind or obligate Consultant nor Page 5 of 8 #21732v1 25C-7 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 Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services that are the subject to this Agreement performed by City personnel or by other Consultants retained by City. 13. TERMINATION Except as otherwise specified herein, 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 the entire work product completed, as of such date, and in such case, such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes, as the City deems appropriate. b. Payment need not be made for work that fails to meet the standard of performance specified in the Recitals of this Agreement. 14. BACKGROUND CHECK REQUIREMENTS Consultant shall not assign any employee, agent, subcontractors or volunteer to provide services pursuant to this Agreement, if that employee, agent, subcontractors or volunteer is required to register as a sex offender under California Penal Code Section 290 et seq, has a conviction for any crime of moral turpitude, has a conviction for a violent felony as defined in California Penal Code Section 667.5(c), or has a conviction for a serious felony as defined in California Penal Code Section I I92.7(c). Disqualifying convictions include but are not limited to, violations of California Penal Code Sections 37, 128, 136.1 with Section 186.22, 187, 190- 190.4 and 192(a), 205, 206, 207-209.5, 211, 212, 212.5, 213, 214, 215, 218-219, 220, 236.l(b) or 236.1(c), 243.4, 261, 261.5, 273.5, 262, 264.1, 266, 266c, 266h, 266i, 266j, 267, 269, 272, 273a, 273ab, 273d, 285, 286, 288, 288a, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 290, 311.1, 311.2, 311.3, 311.4, 311.10, 311.11, 314, 347(a), 368, 417(b), 451(a),518 with 186.22, 647.6, 653f(c), 664 and 187, 667.5(c), 18745, 18750, or 18755, 12022.53, 11418(b)(1) or (b)(2); Business and Professions Code Section 729. Failure to comply with this Section shall be grounds for immediate termination of this Agreement. Psi,*c 6 oC 4 921732vt 25C-8 15. NON-DISCRIMINATION Provider shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided 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. 16. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 17. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United Sates, the State of California, the City of Santa Ana and all other governmental agencies including but not limited to permits from the California Department of Industrial Relations for the operation of carnival rides. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 18. 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. Page 7 of 8 #21732v1 25C-9 IN W11 MESS WFJFREQ�, tlic parties year first abov written, i ATTEST; DAISY GOME— Clerk of the Council APPROVED AS TO FORNI: SONIA R. CAR ALHO City Attorney j By: LAURAA.[R.OSSINI Senior Asslant City Attorney RECOMMENDED FOR. APPRI l r _ I LISA RUDLOFF�f Executive Direet r of Parks, Recreation and ((11t iimmunity Services ave executed ti�is AgreeinenEt7� ItBIT 7 CITY OF SAi` TA ANA ICRISTINE RIDGE City !Manager LLC, Member 1F217Jwvl I Page 8 of 8 25C-10 EXHIBIT A SCOPE OF SERVICES 25C-11 Appendix ATTACHMENT 1-H SCOPE OF WORK SERVICE: CARNIVAL OPERATOR The City of Santa Ana is interested in a carnival operator to provide mechanical rides and game booth services for the 2020 Fiestas Patrias Festival on September 12-13, 2020 in Santa Ana and other related events, as needed. Below is a sample listing from previous events. Major Rides o Ferris Wheel - Required o Tilt a Whirl o Sizzler o Gravitron o Round Up Kiddie Rides o Dinos o Fun House o Glass House o Super Slide o Berries o Lady Bugs o Wind Jammer o Superslide Game Booths (4) Ticket Booths (2) Food Trailer (1) — optional Office Trailer (1) Proposals by qualified vendors will include a large scale carnival to occupy a 54' x 521' space which must include a ferris wheel, major mechanical rides, kiddie mechanical rides, ticket booths, office trailer, staffing, carnival management/oversight, overnight security and cleaning service during and after the carnival (post event cleaning service to include power washing services). The proposal must include a 25% return to the City of gross generated revenue after the event. Vendor would be responsible to cover the cost of their own insurance coverage, sales tax, delivery/storage/transportation of equipment and parking* as well as all other required permits which may include Business Tax, Building and Planning, OC Fire, and OC Heath. It is the responsibility of the selected vendor to work directly with these corresponding departments and agencies to ensure all safety regulations are met, necessary inspections are conducted and permits are issued. *Vendor must coverparking for employees, subcontractors, and equipment vehicles before and after the event. The City will only cover parking for employees and subcontractors during Friday setup (9111120) and the event dates (9112- 9113120). City of Santa Ana RFP 19-113 2OL"(4011 2 EXHIBIT B PORTIONS OF CONSULTANT'S PROPOSAL 25C-13 a. Manner For Perform ine Services: SCR understands exactly what is expected from us to perform the work that needs to be done more so then any other company due to the fact that SCR and its staff have been the selected carnival for the last two years. SCR knows what time lines it will be under to get onto the street and Off of the street in a safely manner. SCR also understands what is involved and what will be expected from us to remove all said equipment. Ex. (remove equipment and clean up) SCR also is aware of what is expected from the different departments, such as city permits, fire, building and safety etc. SCR in order to set up in a timely manner would like to park all said equipment playing the event on Monday September the 7th,2020. SCR is willing to pay its share of parking fees if need be. SCR would like to start assembling the equipment on Thursday September 10`h 2020 at 11;00am. SCR will be willing to leave access for vehicles exiting existing buildings until Friday at such time city designates to do a full street closer. SCR would ask that if awarded such contract a meeting would be set up with all departments involved so that everyone is in agreement and understands all that is involved in setting up and removing a carnival in a timely and SAFE manner and what is expected from all departments and what is expected from SCR! 25C-14 Fee Prc inandal A r qMqnt, This Financial Agreement is to be made between So Cal Rides, LLC (hereinafter "SCR" and the Client listed as follows: City Of Santa Ana Parks, Recreation and Community Services Agency hereinafter "Client). SCR and Client are both collectively referred to herein as "parties". Client will receive 25% of the gross on site sales from rides, received during the celebration. At the completion of the celebration, on the closing night, all monies will be determinedand accounted for by SCR and Client. The sales proceeds will be distributed that evening, which will include part in cash or a check which ever Client and SCR determine. If Client desires to do Advance sales SCR is willing to give a higher percentage. Client is to receive 30% from all advance money sales and 25% of all ground sale money. ,. ; SCR is willing to have our marketing Department work closely with the Client and monitor all advance sales if so desired. SCR is also willing to have our marketing department work closely in setting up special promotions for said event if desired. 25C-15 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2020 TITLE: APPROVE AN AGREEMENT WITH CALIFORNIA BARRICADE RENTALS, INC. FOR TRAFFIC CONTROL EQUIPMENT AND SERVICES AT CITY EVENTS FOR AN ANNUAL AMOUNT NOT TO EXCEED $165,000, FOR A TOTAL AGREEMENT AMOUNT OF $495,292.89, TO BE FUNDED BY THE GENERAL FUND /s/Kristine CITY MANAGER 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 RECOMMENDED ACTION Authorize the City Manager to execute an agreement with California Barricade Rentals, Inc. for traffic control equipment and services at City events for an annual amount not to exceed $165,000 and a total agreement amount of $495,292.89, for the period of March 3, 2020 to March 2, 2023 to be funded by the General Fund, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION On November 7, 2019, the City of Santa Ana issued Request for Proposal (RFP) Number 19-113 for various special event services. The RFP supports the Parks, Recreation, and Community Services Agency (PRCSA) efforts to bring together many elements needed to provide multiple city -produced events throughout the year. An evaluation committee consisting of representatives from PRCSA reviewed and rated the one proposal received according to the criteria listed in the RFP, which includes firm/team experience, references/relevant experience, manner for performing services and fee. The committee evaluated the one responsive proposal and determined the company is qualified to provide traffic control equipment and services for City events. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Strategic Plan Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #4 (support neighborhood vitality and livability). 25D-1 Agreement with California Barricade Rentals, Inc. for Traffic Control Equipment and Rental Services March 3, 2020 Page 2 FISCAL IMPACT Funds are budgeted and available in the following account for the specified year: Fiscal Accounting Fund Accounting Unit, Account Amount Year Unit -Account Description Description FY 19-20 01113230- General Fund PRCSA-Recreation, $37,500 62300 Contractual Services -Professional FY 19-20 01105015- General Fund General Non -Departmental, $30,000 62300 (Census Contractual Services -Professional 2020 FY 19-20 01114405- General Fund Police Dept. -Traffic $10,000 62300 Contractual Services -Professional FY 19-20 05218018- Strategic Plan CDA-Strategic Plan, $5,292.89 62300 Fund Contractual Services -Professional Fiscal Year 19-20 Total $82,792.89 Funds will be budgeted and made available in the following account for the specified years: Fiscal Accounting Fund Accounting Unit, Account Amount Year Unit -Account Description Description FY 20-21 01113230- General Fund PRCSA-Recreation, $75,000 62300 Contractual Services -Professional FY 20-21 01105015- General Fund General Non -Departmental, $60,000 62300 Contractual Services -Professional FY 20-21 01114405- General Fund Police Dept. -Traffic $20,000 62300 Contractual Services -Professional FY 20-21 05218018- Strategic Plan CDA-Strategic Plan, $10,000 62300 Fund Contractual Services -Professional Fiscal Year 20-21 Total $165,000 Fiscal Accounting Fund Accounting Unit, Account Amount Year Unit -Account Description Description FY 21-22 01113230- General Fund PRCSA-Recreation, $75,000 62300 Contractual Services -Professional FY 21-22 01105015- General Fund General Non -Departmental, $60,000 62300 Contractual Services -Professional FY 21-22 01114405- General Fund Police Dept. -Traffic $20,000 62300 Contractual Services -Professional FY 21-22 05218018- Strategic Plan CDA-Strategic Plan, $10,000 62300 Fund Contractual Services -Professional Fiscal Year 21-22 Total $165,000 25D-2 Agreement with California Barricade Rentals, Inc. for Traffic Control Equipment and Rental Services March 3, 2020 Page 3 Fiscal Accounting Fund Accounting Unit, Account Amount Year Unit -Account Description Description FY 22-23 01113230- General Fund PRCSA-Recreation, $37,500 62300 Contractual Services -Professional FY 22-23 01105015- General Fund General Non -Departmental, $30,000 62300 Contractual Services -Professional FY 22-23 01114405- General Fund Police Dept. -Traffic $10,000 62300 Contractual Services -Professional FY 22-23 05218018- Strategic Plan CDA-Strategic Plan, $5,000 62300 Fund Contractual Services -Professional Fiscal Year 22-23 Total $82,500 Lisa Rudloff Executive Director Parks, Recreation, Services Agency APPROVED AS TO FUNDS AND ACCOUNTS: Kathryn Downs, CPA Executive Director and Community Finance and Management Services Agency David Valentin Chief of Police Santa Ana Police Department Exhibit: 1. Agreement Steven A. Mendoza Executive Director Community Development Agency 25D-3 AGREEMENT BETWEEN THE CITY OF SANTA ANA AND CALIFORNIA BARRICADE RENTALS, INC. THIS AGREEMENT is hereby made and entered into this 3rd day of March, 2020, 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 California Barricade Rentals, Inc., a California Corporation ("Consultant"). RECITALS A. The City issued Request for Proposal ("RFP') 19-113 on November 7, 2019 for various services for City events. City's RFP is incorporated herein by reference as though fully set forth below. B. Consultant submitted a proposal in response to RFP 19-113 and has been selected for award of the contract for traffic barricade equipment and services. B. 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 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 traffic barricade equipment and services as outlined in more detail in the scope of services from City's RFP attached as Exhibit "A" and the portion of Consultant's proposal outlining the manner in which it will provide services attached as Exhibit "B." All Exhibits are incorporated by reference as though completely set forth herein. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the fees and rates set forth in consultant's proposal submitted in response to City's RFP and Exhibit "C" of this Agreement. The total sum authorized to be spent under this Agreement shall not exceed $495,292.89 for the entire term of this Agreement. The annual not to exceed amount for this Agreement is $165,000.00. b. This Agreement authorizes payment of an outstanding invoice in the amount of $292.89 dated January 28, 2020 and attached hereto and marked as Exhibit "D." c. City will be invoiced by Consultant monthly. Payment will be made within forty-five (45) days of the date of the invoice. Page 1 of 8 #217320 25D-4 3. TERM The term of this Agreement shall commence on March 3, 2020 and terminate on March 2, 2023, unless terminated earlier in accordance with Section 13, below. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to its employees and shall be responsible for all applicable withholding taxes. 5. 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 negligent operations in the performance of this Agreement, including, without limitation, acts involving vehicles. This insurance policy shall not have an exclusion for sexual molestation. 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, 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. Page 2 of 8 #217320 25D-5 d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved 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) Consultant shall supply City with fully executed additional insured endorsement. I. 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 defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Consultant, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section I of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any Page 3 of 8 #217320 25D-6 legal proceeding. Notwithstanding the foregoing, to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 7. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 8. 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 rightful 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. 9. 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 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: Page 4 of 8 #217320 25D-7 To City: City of Santa Ana City Clerk (M-30) 20 Civic Center Plaza P.O. Box 1988 Santa Ana, California 92702 With copy to: Executive Director of Parks, Recreation and Community Services City of Santa Ana 20 Civic Center Plaza (M-23) P.O. Box 1988 Santa Ana, California 92702 Fax (714) 571-4211 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: Ms. Kellie Hurst, Vice President California Barricade Rentals, hic. 1550 East St. Gertrude Place Santa Ana, California 92705 Fax (714) 558-3821 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by facsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant 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 Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, that terms or conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, Page 5 of 8 #217320 25D-8 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 Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services that are the subject to this Agreement performed by City personnel or by other Consultants retained by City. 13. TERNIINATION Except as otherwise specified herein, 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 the entire work product completed, as of such date, and in such case, such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes, as the City deems appropriate. b. Payment need not be made for work that fails to meet the standard of performance specified in the Recitals of this Agreement. 14. NON-DISCRINIINATION Provider shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided 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. Page 6 of 8 #217320 25D-9 16, PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United 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 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 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: DAISY GOMEZ Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney tyou LCL h. i�� By: LAURA A. ROSSINI Senior Assistant City Attorney [Signatures continue on the next page] CITY OF SANTA ANA KRISTINE RIDGE City Manager Page 7 of 8 #21732v1 25D-10 RECOMMENDED FOR APPROVAL LISA RUDLOFF Executive Director of Parks, Recreation and Community Services Agency CALIFORNIA BARRICADE RENTALS, \C. Digitally signed by: Kettle Hurst Ke I I i e DM CN = Kettle Hurst email = lifomiabarAmde.com C Hurst �1r1Ie@g Ir�y.s O = California Barricade, Date: 2020,02.12 12:28:48 -08'00' By: Kellie Hurst Vice President Page 8 of 8 k2173.�.v1 25D-11 EXHIBIT A SCOPE OF SERVICES 25D-12 *AV NI-IIhaI Appendix ATTACHMENT 1-E SCOPE OF WORK SERVICE: TRAFFIC CONTROL EQUIPMENT The City is seeking a company with the capacity to provide traffic control equipment for various events. Below is a sample listing of equipment provided for previous large scale events. • 7-Arrow Boards • 73-Type I Barricades (Road Closed, Detour, Transition, Turn Only, etc...) • 29-Water Filled Barriers (72xl802) • Traffic Control Technicians • Water truck to fill K-Rails Traffic control plans will be specific for individual events and the contractor is expected to work with various city departments, particularly the Santa Ana Police department and Planning and Building Agency. City of Santa Ana RFP 19-113 25®113 EXHIBIT B MANNER OF PROVIDING SERVICES 25D-14 MANNER FOR PERFORMING SERVICES OUTLINE 1. Client initiates event a. Call or email comes in b. Plan is provided or requested 2. Vendor assesses required service a. Physical site review b. Review of plans or equipment list i. Design of plan if requested c. Engagement with client for additional information 3. Pre -event meeting a. Attend all pre -event meetings scheduled by client b. Engage in questions and receiving of directives 4. Finalization of exact scope a. Vendor and client agree, and have a clear understanding of the scope 5. Event specific proposal a. Vendor provides proposal b. Client accepts proposal i. Issuance of purchase order 6. Vendor engages with water delivery service a. Secure event date b. Communicate volume 7. Vendor's preparation of equipment a. Assess for adequate inventory b. Inspection for cleanliness and maximum reflectivity c. Load and secure equipment for transport to deliver, or pre -stage 8. Vendor pre -stages event (if needed) a. Drop equipment in strategic locations for expeditious set-up on event day 9. Event day a. Timely placement of delivered, or pre -staged equipment b. Drive through completed set up I. Adjust placement ii. Add more equipment if needed c. Notify client set-up is complete 10. Pick-up a. Mobilize technicians for timely pickup b. Dispatch adequate number of trucks c. Drive through event area to ensure all equipment is picked up 11. Vendor's issuance of invoice a. Review field documents for accuracy b. Issue accurate and timely invoice c. Address client questions if any 12. Post event meeting a. Attend wrap-up meeting post event b. Engage in feedback, and suggestions for future success c. Express appreciation to all who participated In the execution of the event 25D-1 5 Page 6 EXHIBIT C FEES AND COSTS 25D-16 *:�:111AIhaI FEEPROPOSAL Service: TRAFFIC CONTROL EQUIPMENT California Barricade, Inc. is a company with the capacity to provide traffic control equipment for various events. Below is our proposal based on the sample listing of equipment per the RFP. Discounted Extended Price Rental Quantity List Price Price Per Unit Per Day Per Day Arrow Boards 7 $65.00 $35.00 $245.00 Water Filled K-Rail 29 6.60 $3.30 $95.70 Type I Barricade with Sign 73 $1.25 $0.70 $51.10 Service Quantity List Price Price Per Extended Price Occurrence Water Truck Service (29 units) 1 $910.00 $900.00 $900.00 Per Hour Extended Price Labor " Quantity List Price Per Technician Per Hour Traffic Control Technician 15 n/a $85.00 $1,275.00 It is understood traffic control plans will be specific for individual events, and that we are expected to work with various city departments, particularlythe Santa Ana Police department and Planning and Building Agency. California Barricade has done so in the past with great success, and will continue to do so. 25D- 1 7 Pagel EXHIBIT D OUTSTANDING INVOICE 25D-18 I4:/:111AlIll al LlFOra IA e RR/CADE Bill To City of Santa Ana Parks, Recreation & Community Services Agency M-23 20 Civic Center Plaza P.O.Box 1988 Santa Ana, CA 92702 INVOICE Invoice # Date Terms 63111-A 1/28/2020 Net 45 Job Location 450 W. 4th St. Santa Ana Corner of 4th St. & Ross Customer Contact Customer Job # Purchase Order # CBR Job # Julie Castro-Cardena 29631 Sales Item Qty Rate Amount Water Filled K-Rail W20-2 Detour Ahead 36 x 36 Aluminum Sign 113-1 No Right Turn 24 x 24 Aluminum Sign 113-2 No Left Turn 24x24 Aluminum Sign M4-8a End Detour 2418 Aluminum Sign M4-10 (R) Detour Right 12x36 Aluminum Sign M4.10 (L) Detour Left 12x36 Aluminum Sign W20-3 C19 Road Closed Ahead 36 x 36 Aluminum Sign Type I Barricade w/ Flasher Type I Barricade 12 2 2 2 2 4 2 1 4 17 260.00 57.65 28.85 28.85 27.00 24.85 24.85 57.65 46.55 27.35 3,120.00T 115.30T 57.70T 57.70T 54.00T 99.40T 49.70T 57.65T 186.20T 464.95T Delivery 12/19 1 190.00 190.00 Allowances -4,554.00 -4,554.00 THANK YOU FOR YOUR BUSINESS. YOU ARE A VALUED CUSTOMER. Subtotal-$101.40 1550 E. Saint Gertrude Place Sales Tax (9.25%) $394.29 Total $292.89 Santa Ana, CA 92705-4613 (800) 327-8844 Toll Free (714) 558-8474 Local Payments/Credits $0.00 (714) 558-3821 Fax California State Contractors License #785733 Balance Due $292.89 25D-19 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2020 TITLE APPROVE AGREEMENTS WITH CALIFORNIA BARRICADE RENTALS, INC. AND STATEWIDE TRAFFIC SAFETY AND SIGNS, INC. FOR ON -CALL TRAFFIC CONTROL SERVICES AND EQUIPMENT RENTAL FOR A THREE YEAR PERIOD IN AN AMOUNT NOT TO EXCEED $300,000 /s/Kristine Ridge CITY MANAGER CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 11' Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For ,K•�►nl►tr».ic•� FILE NUMBER RECOMMENDED ACTION Authorize the City Manager to execute agreements with California Barricade Rentals, Inc. and Statewide Traffic Safety and Signs, Inc. to provide on -call traffic control services and equipment rental for a three-year period beginning March 3, 2020 and expiring on March 2, 2023, with a provision for one two-year extension exercisable by the City Manager and City Attorney, for a total aggregate amount not to exceed $300,000, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION On November 5, 2019, the Public Works Agency issued a Request for Proposal (RFP) for contractors to provide on -call traffic control services and equipment rental. The selected contractor(s) will supplement City staff by providing temporary and permanent traffic control services, and the necessary traffic control devices, personnel and related equipment. This work generally consists of work -area traffic control setup, job site flagging, lane closures, road closures, detour routes, and special event traffic control. The RFP was advertised on the City's online bid management and publication system, with bids due on November 26, 2019. Twenty contractors downloaded the project documents. Two proposals were received and evaluated by a selection committee based on criteria as outlined in the RFP. Listed below are the responding contractors and their ranking: Rank Firm Location 1 California Barricade Rentals, Inc. Santa Ana 2 Statewide Traffic Safety and Signs, Inc. Garden Grove In accordance with the RFP, staff recommends awarding contracts to California Barricade Rentals, Inc. and Statewide Traffic Safety and Signs, Inc. Both contractors demonstrated a high technical 25E-1 Approve Agreements for On -Call Traffic Control Services and Equipment Rental March 3, 2020 Page 2 competency and experience performing similar services. The proposals contained a clear path toward achieving City goals and objectives as required by the RFP. 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 There is no fiscal impact at this time. Prior to utilizing any of these on -call services, Public Works staff must receive Finance & Management Services Agency approval of funding and accounts to ensure that funds are available under the authorization and aggregate limit of these agreements. Upon successful completion of this fiscal review, a corresponding Notice to Proceed containing specific scope and maximum expenditure for the task order will be issued to a contractor. Funds are available for expenditure in the FY 2019-2020 Water Utility Water Production and Contract Services — Professional account (No. 06017640-62300). Nabil Saba, PE Acting Executive Director Public Works Agency NS/CB/RR 19 > > :ii��l � �LF� ril 1�J ► I �> `y9 ► I �LTKK�I�J ► � �91 Kathryn Downs, CPA Executive Director Finance and Management Services Agency Exhibits: 1. Agreement with California Barricade and Rentals, Inc. 2. Agreement with Statewide Traffic Safety and Signs, Inc. 25E-2 EXHIBIT 1 AGREEMENT TO PROVIDE ON -CALL TRAFFIC CONTROL SERVICES THIS AGREEMENT is made and entered into this 3rd day of March, 2020 by and between California Barricade Rentals, 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 November 5, 2019, the City issued Request for Proposal No. 19-117, by which it sought qualified contractors to provide on -call traffic control services for the City's 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. 19-117. 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 City's sole discretion, Contractor shall perform the services described in the scope of work that was included in REP No. 19-117 and that is attached as Exhibit A, and as further delineated in Contractor's proposal, which is attached as Exhibit B and incorporated in full. 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 identified in Exhibit C. Contractor is one of two contractors selected to provide services on an as -needed basis under REP No. 19-117. The total compensation for services provided by all contractors selected under RFP No. 19-117 shall not exceed the shared aggregate amount of $300,000 during the term of this agreement, including any extension periods. 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 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 March 2, 2023, unless terminated earlier in accordance with Section 17, below. The term of this Agreement may be extended for one 2-year period upon a writing executed by the City Manager and City Attorney. 4. PREVAILING WAGES Contractor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. Ifthe services being performed are part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 5. 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. 6. 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 Ag t!4 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. 7. 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 hnsurance. Contractor shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Contractor's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary 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 25Et 8 or reduced in coverage or changed in any other material aspect, by contractor, 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 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. 1►11 a 1►I y I ► Contractor agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, 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 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. 9. 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. 25 -6 10. 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 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. 11. 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. 12. 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. 13. 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) AW fI 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 To Contractor: California Barricade 1550 E. Saint Gertrude Place Santa Ana, CA 92705 Attn: Kellie Hurst, Vice President 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 timeframes, weekends, federal, state, County or City holidays shall be excluded. 14. 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. 15. 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 contractors retained by City. 25 -8 16. 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 similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 17. TERNIINATION 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. 18. NON-DISCRINIINATION 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. 19. 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. 20. PROEESSIONAL 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 25 t§ 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. 21. 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: Daisy Gomez Clerk of the Council APPROVED AS TO FORM SOMA R. CARVALHO City Attorney By: M. Funk Assistant City Attorney RECOMMENDED FOR APPROVAL Nabil Saba Acting Executive Director Public Works Agency CITY OF SANTA ANA Kristine Ridge City Manager CONTRACTOR Title: VI``i����/= Page 8 of 8 25E-10 EXHIBIT A Appendix ATTACHMENT1 SCOPE OF WORK CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR ON -CALL TRAFFIC CONTROL SERVICES RFP NO.: 19-117 Introduction / Background The City of Santa Ana intends to retain traffic control specialist contractor(s) on an as -needed or "on -call" basis. A Professional Services Agreement will be entered into with several of the qualified contractor(s) to provide professional traffic control services for a variety of projects in the City. In general, work consists of general traffic control services. Each project may vary and each will be based on task order assignment, the selected contractor(s) shall comply with all City, local, State and Federal traffic related regulations. On occasions, the selected contractor(s) will be asked to provide professional engineering traffic plans for specific task orders, based on an agreed -upon specific scope of services and fees Scope of Services The work consists of temporary and permanent traffic control services and the necessary traffic control devices, personnel and related equipment generally consisting of the following and not limited to: • Work area traffic control setup • Job site flagging • Lane closures • Road closures • Vehicle, bicycle and pedestrian detours • Special event and traffic control The City's Project Manager will notify the contractor(s) when traffic control services are needed. The contractor(s) must be able to respond within a 48 hour period for planned services and within 2-hours of an emergency task order. Note — Contractor(s) may be required to furnish material, equipment and supplies. Work may be performed after hours which may require specific equipment for night time work The Project manager or his/her(s) duly authorized representative will monitor the contractor(s) operations and on periodic basis to assure compliance with proper traffic control and safety procedures. The selected contractor(s) must have the expertise, experience, and demonstrated resources City of Sa�t� Fp 19-117 4al� �- 1 available to perform the work described in this RFP. Project Management, Equipment/Supplies: The contractor(s) services and materials shall be in accordance with the provisions, guidelines and specifications detailed here in and not limited to the latest editions of the following: Manual on Uniform Traffic Control Devices (MUTCD), Work Area Traffic Control Handbook (WATCH), American Association of State Highway and Transportation Officials (AASHTO), Caltrans, the Americans with Disabilities Act, the City of Santa Ana Municipal Code (SAMC), professional Standards established by the City, and or federal, state and local guidelines established in the project. All vehicles involved in the traffic control job order shall be clearly identified, and any vehicle participating in traffic control setups and takedowns must have all warning and flashing signs properly and fully functional including and not limited to: warning signs, flashing lights, arrow boards, and safety backup alarms. Traffic mounted attenuators will be required for traffic control performed on major arterial streets. The contractor(s) shall have project management control procedures in effect during the entire time work is being performed under the Agreement. This task shall include the following: • Project Management Plan- the consultant shall provide a detail management plan including information and coordination to ensure compliance and completion of the job order tasks • Quality Control/Quality Assurance (QA/QC) Plan • Project Schedule/Invoicing • Project Correspondence In case of conflict, ambiguities, discrepancies, errors, or omissions, the contractor(s) shall submit the matter to the City for clarification. The following services/items shall include, but are not be limited to: 1. If included in the on -call project scope, attend meetings with the City staff as required 2. The contractor(s) shall coordinate the work with the proper regulatory agencies and have their respective representatives on site if required. 3. Contractor shall monitor all traffic control setups to ensure proper functioning and or to repair damaged or missing traffic control. 4. The contractor(s) personnel shall be responsible and carry themselves in a professional manner to the general public and City Staff at all times while performing work for the City. The City reserves the right, at the sole discretion of the project manager, and may request the contractor(s) to remove any employee and or sub-contractor(s) for any reason deem detrimental to the City and the safety of the public. 5. The City reserves the rights to contract for and perform other or additional work on or near the work covered by these specifications. When separate contracts are let within the limits of any one project, each contractor shall conduct his work so as not to interfere with or hinder the progress or completion of the work being performed by other contractors. Contractors working on the same project shall cooperate with each other as directed. Each contractor involved shall City of SAt, T219-117 assume all liability, financial or otherwise, in connection with this contract and shall protect and save harmless the City from any and all damages or claims that may arise because of inconvenience, delays, or loss experienced by him because of the presence and operations of other contractors working within the limits of the same project. All information regarding the job order and or documentation related to the project and approved by the City, will then become property of the City. A more detailed scope of work will be provided when/if a specific project or Task Order proposal is requested from the contractor(s). All tasks orders shall include the staff title, hours, hourly rate and totals as related to the project. (See Fee Proposal Section). City Responsibilities: The City will provide information in its possession relevant to the preparation of the required information in the RFP. The City will provide only the staff assistance and the documentation specifically in referred to herein. • Furnish scope of work and provide general direction as needed for the assigned project • All plan check coordination within the City • Advertise, award, and administer of contract • Electronic files (sample plans & specifications, City of Santa Ana's CADD Standards) if needed Fee Proposal: In addition to Section IV.B.3 (Submittal Requirements: Fee Proposal) fee schedule shall be structured as follows: The fee proposal shall include the firm's standard hourly fee schedule, and/or project fee schedule where applicable and as outlined in this this documents. A list of all positions and hourly rates required to perform the services described herein. A more detailed scope of work will be provided when/if a specific proiect or Task Order proposal is requested from the contractor(s). Other Terms and Conditions: 1. The project will be implemented in compliance with the City of Santa Ana's policies, as well as Prevailing Wages and State/Federal Requirements. 2. The City reserves the right to amend this Request for Proposal by addendum prior to the final dates of submission. All reports, proposals, or other data or materials which are submitted shall become the sole property of the City of Santa Ana with the exception of the confidential Financial Capacity information and fee proposals. 4. All products used or developed in the execution of any contract resulting from this request will remain in the public domain at the completion of this project. City of SAt, T319-117 5. The City has an affirmative action program. The purpose of the affirmative action program is to encourage certified minority business enterprises and women business enterprises. All submitting firms must have established affirmative action programs approvable by the City. During the RFP stage, all firms will need to complete a "Certification of Non -Discrimination by Contractors" for each firm on their team. 6. Accessibility. The Contractor shall fully inform himself regarding any particularities and limitations of the space available for the work to be performed. The contractor(s) shall exercise due and particular caution to determine that all parts of his work are made quickly and easily accessible. 7. Cleanup during performance and upon completion of the work for this project contractor will remove all unused equipment of service, all excess or unsuitable material, trash, 8. Rubbish, and debris, and legally dispose of same, unless stated or directed otherwise by these specifications. Contractor shall leave the entire area clean in an acceptable condition as approved by the City. 9. Examination of Specification and Site. Contractor is expected to carefully examine the site of the proposed work and all proposal specifications, documents, and forms. He shall satisfy himself as to the character, quality, and quantities of work to be performed, materials to be furnished and the requirements of the proposed specifications. 10. Independent Contractor. In accepting this contract, Contractor covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services hereunder. Contractor further covenants that, in the performance of this contract, no subcontractor or person having such an interest shall be employed. Contractor certifies that to the best of his knowledge, no one who has or will have any financial interest under this contract is an officer or employee of City. It is expressly agreed by Contractor that in the performance of the services required under this contract, Contractor, and any of its subcontractors or employees, shall at times be considered independent contractors and not agents of City. 11. Protection of Public. Adequate warning devices, barricades, guards, flagmen or other necessary precautions shall be taken by the contractor to give advanced and reasonable protection, safety and warning to persons and vehicular traffic concerned in the area. 12. Unknown Obstructions. Should any unknown obstruction be encountered during the course of this contract the Contractor immediately bring it to the attention of the City. The contractor shall be responsible for the protection of all existing equipment, furniture, or utilities encountered within the work area. 13. Rejection of Work. Contractor agrees that the City has the right to make all final determinations as to whether the work has been satisfactorily completed. 14. Independent Contractor. In accepting this contract, Contractor covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services hereunder. Contractor further covenants that, in the performance of this contract, no subcontractor or person having such an interest shall be employed. Contractor certifies that to the best of his knowledge, no one who has or will have any financial interest under this contract is an officer City of Sat�t�ira�F�6i 19-117 or employee of City. It is expressly agreed by Contractor that in the performance of the services required under this contract, Contractor, and any of its subcontractors or employees, shall at times be considered independent contractors and not agents of City. 15. Subcontractors Contractor agrees to bind every subcontractor to the terms of the Agreement Documents as far as such terms are applicable to subcontractor's portion of The Work. Contractor shall be as fully responsible to the City for the acts and omissions of its subcontractors and of persons either directly or indirectly employed by its subcontractors, as Contractor is for acts and omissions of persons directly employed by Contractor. Nothing contained in these Agreement Documents shall create any contractual relationship between any subcontractor and the City. The City reserves the right to approve all subcontractors. The City's Approval of any subcontractor under this Agreement shall not in any way relieve Contractor of its obligations in the Agreement Documents. Prior to substituting any subcontractor listed in the Proposal Forms, Contractor must comply with the requirements of the Subletting and Subcontracting Fair Practices Act pursuant to California Public Contract Code section 4100 et seq. 16. Safety RequirementsNiolations • Safety at the Project site during performance of the work is of paramount concern to the City. Accordingly, the City will review violations recorded as serious or willful for federal or state OSHA regulations within the last five (5) years. Contractors must identify the number of OSHA violations on the CONTRACTOR'S INDUSTRIAL SAFETY RECORD form. Any serious or willful violation may render a proposal as non -responsive. We strongly encourage full disclosure, since failure to identify all violations on the CONTRACTOR'S INDUSTRIAL SAFETY RECORD form may result in rejection of the proposal as non -responsive or the contractor as non - responsible following a hearing A citation properly appealed through OSHA is not considered to be a violation until the matter is closed and considered final by OSHA. The City still expects this information to be disclosed by the contractor, with an explanation and documentation showing that the matter is properly under appeal with OSHA and not considered closed or final. Failure to be forthcoming with this information may result in rejection of the proposal as non -responsive. Notwithstanding the preceding, the City may waive this criterion in its sole and absolute discretion. Describe your safety measures plan to assure the City that all applicable OSHA regulations will be adhered to with the inclusion of an Injury and Illness Prevention Program. City of S M EXHIBIT B On -Call Traffic Control Services [aII M9191MIIIIFAVE101 FV Santa Ana Public Works Agency Respectfully submitted to: I reseq 9 u_�� coVF[NM[rvl ] ��i-p THE OOSU'FH EITV lou NOM wee Respectfully submitted by: %��4RR/CADS 25E-16 CALIFORNIA GARR/CADE zr VE November 25, 2019 Rudy Rosas Project Manager City of Santa Ana Santa Ana Public Works Agency 20 Civic Center Plaza Santa Ana, CA 92701 Re: RFP NO. 19-117 Request for Proposal — On Call Traffic Control Services Dear Mr. Rosas, 1550 E. Saint Gertrude Place Santa Ana, California 92705 Toll Free (800)327.8844 Phone (714)558-8474 Fax (714)558-3821 It is with thanks and appreciation for this opportunity that we present our proposal for ON -CALL TRAFFIC CONTROL SERVICES for review and consideration. We are confident that you and your team will find our proposal to be thorough, and competitive. For contractual matters I will be the point -of -contact. As the Vice President of California Barricade, Inc., I am a duly authorized officer of the firm and can bind and commit the firm to the contractual obligations of this contract. Furthermore, we have no concerns with the stipulations of the Agreement, and concur will all provisions. Our relationship with the City of Santa Ana, and the departments within, has been long and mutually beneficial. We are hopeful that our history serving the City, and the expertise we bring, will be considered and valued. Please let us know if we can provide anything further. Thank you again, and we look forward to hearing from you. Sincerely, kl" Kellie Hurst Vice President UNDERSTANDING OF NEED California Barricade, Inc. has vast experience in meeting the traffic control requirements for the City of Santa Ana. As an approved vendor since the early 1990's, we have expanded substantially the level of service and commitment to the City. We have, and will continue to provide excellent service and response to both City employees, and outside organizations that plan events within city limits. Experts in Our Field California Barricade, Inc. has been in business as a C-31 Work Zone Traffic Control service provider since 1984, and employs only ATSSA Certified Traffic Control Supervisors, Technicians, and flaggers. We have a command of MUTCD, WATCH, AASHTO, Caltrans standard plans, and the SAMC. We possess the ability to design and read traffic control plans. The ongoing intensive training and refreshing that our field personnel receive is the highest level available in our industry. Commitment to Safety The safety culture at California Barricade, Inc. is vibrant and engaging. Every employee is committed to everyone they work with, on and off the job site, going home safe every day. Considerable time and resources are invested in training, awareness, and communication. Daily tailgate talks, and monthly safety meetings equip all employees with the tools needed to do their job safely. Customer Service Excellence The City of Santa Ana has enjoyed, and will continue to enjoy access to all California Barricade, Inc. support personnel. Every employee is committed to a positive and productive relationship with City personnel. Mark Hurst President Kellie Hurst Vice President/Contracts David Tangitau Operations Manager Owen Vaea Safety Supervisor Cassandra Strachan Quotes/Scheduling Julie Escobar Billing/ Insurance Timely Proposal Processing Immediately upon request, our team of qualified employees will properly assess the required field operations, and prepare a proposal according to the needs of the City. Typical turn -around time for a repeat event is 1-2 business days. For a new event, a site visit may be required, and the proposal may take 2-4 days. Every effort will be made to provide proposals within the timeframe communicated by the City. Pre -event Meeting Attendance California Barricade, Inc. has faithfully attended, and fully participated in pre -event meetings, and will continue to do so. We will use those opportunities to build relationships, better understand the scope of the events, and the needs of those involved in the planning. This allows us to enhance our level of service to properly respond to concerns about safety, and the goal to insure systematic events. Professional Engagement with All Departments Currently, California Barricade, Inc. has a very positive working relationship with all involved departments of the City. We are committed to continuing to serve well, the Public Works, Police, Parks and Recreation, and the Traffic Engineering departments. Representatives from any City department can be assured that the level of response and commitment by California Barricade, Inc. will be unparalleled. Event Related Traffic Control Plans Outside organizations who hold events within the City may require traffic control plans. California Barricade, Inc. provides plan design per regulations outlined in the WATCH Manual or MUTCD. Plans will be drawn specific to the scope of work provided by the City. Oversite by the City's Traffic Engineering Department is welcomed. 25E-18 Event Related Traffic Control Once the scope of work has been determined, and plans and permits are in place, our experienced traffic control technicians will begin the process analyzing the plans for proper execution. Execution may vary by event, and as much as possible, traffic control devises will be pre -staged for rapid placement when event begins. Technicians will dispatch with all necessary information, plans, vehicles and equipment necessary to meet or exceed the requirements for a field operation. Job Related Response Time California Barricade, Inc. is located within the City of Santa Ana, as are some of our technicians. This gives us the ability to mobilize and respond at any time the city requires. While it is not typical the City would require our services on an emergency basis, they certainly could, and be met with a rapid 1-2 hour response. Quality Assurance Every task performed in support of the City, and outside organizations will be done with an emphasis on professionalism, safety, quality, excellence, and timeliness. Procedures are in place that assure the City any request that is made will be addressed immediately, and accurately. Timely and Accurate Billing We will continue our commitment to provide timely and accurate invoices to either the city or outside organizations. Invoices will directly correlate to the proposal, and may include any service or equipment adjustments made in the field, and approved by the client. Wrap -Up Meeting Attendance When invited, California Barricade, Inc. will faithfully attend, and fully participate in post -event wrap-up meetings. We will use those opportunities to better understand the impact of our service at an event, and make any adjustments needed. We will share anything learned that will insure traffic/crowd control for future events be as safe and efficient as possible. 25E-19 FIRM &TEAM EXPERIENCE ORGANIZATIONAL CHART California Barricade, Inc. is a California Subchapter S Corporation and has been in business since 1984 providing work zone traffic control services and equipment rentals and sales. We service a variety of industries including, but not limited to: state and local governments, municipalities, paving, construction, environmental, pipeline, and entertainment companies. We have held our C-31 class contractor's license (785733) uninterrupted since this class was instituted in the year 2000. At that time, California Barricade, Inc. was grandfathered in when we were recognized as one of the few leading experts in the field. A C-31 license is classified as a "work zone traffic control contractor". California Barricade, Inc. employs highly trained ATSSA certified flaggers, traffic control supervisors, and traffic control technicians. They undergo training on a continuous basis. Their training and expertise gives them a working knowledge of how to accurately perform in diverse traffic situations per specifications outlined in traffic control plans, Caltrans Standard Plans, Manual on Uniform Traffic Control Devices, California Joint Utility Traffic Control Manual, and the WATCH Manual. Employees of California Barricade, Inc. hold certifications in the following safety programs • ATSSA Certified Traffic Control Supervisor ATSSA Certified Traffic Control Technician • ATSSA Certified Flagger Loss Prevention System API Worksafe • Passport Safety Program OSHA 10 Hour Occupational Safety & Health OSHA 40 Hour HAZWOPER NSC Defensive Driving 25E-20 AqfGrkRR1CADE Key Personnel Mark Hurst President Operations O (714) 558-8474 M (714) 679-5856 David Tangitau Operations Manager Certified Traffic Control Supervisor M (714)721-7761 Owen Vaea Safety Supervisor Certified Traffic Control Supervisor M (714)497-9725 Kellie Hurst Vice President Contracts I Insurance I Safety O (714)558-8474 M (714)679-5857 Julie Escobar Administrative Assistant Accounts Payable Accounts Receivable O (714)558-8474 Cassandra Strachan Operations Support Customer Service Estimating O (714)558-8474 Steven Aguilar Certified Traffic Control Supervisor, Certified Flagger (714) 380-1164 Roger Caneda Traffic Control Technician, Certified Flagger (714) 715-2399 Alejandro Cortez Traffic Control Technician, Certified Flagger (714) 679-5859 Jose Gonzalez Certified Traffic Control Technician, Certified Flagger (714) 679-5861 Alex Maliga Certified Traffic Control Supervisor, Certified Flagger (714) 497-9725 David Navarro Traffic Control Technician, Certified Flagger (714) 679-7673 John Ngu Traffic Control Technician, Certified Flagger Gilberto Panameno Certified Traffic Control Technician, Certified Flagger (714) 679-5863 Ernesto Rivera Traffic Control Technician, Certified Flagger (714) 785-2405 Andrew Rodriguez Certified Traffic Control Technician, Certified Flagger (714) 679-6293 Edward Semaia Traffic Control Technician, Certified Flagger (714) 721-7828 Jeff Sin Traffic Control Technician, Certified Flagger (714) 721-7817 Amanake Vaea Traffic Control Technician, Certified Flagger (714) 721-7828 25E-21 RELEVANT PROJECT EXPERIENCE & REFERENCES Client Name City of Santa Ana Contact Name Bill McGovern Phone/Email (714) 647-5840 WMcGovern@santa-ana.org Project Dates Ongoing since 1998 Project Description Event related traffic control services and crowd control; work zone traffic control services for non-event activities. Client Name Orange County Marathon Contact Name Jodi Hoose, Book That Event, LLC Phone/Email (949) 407-9993 jodi@bookthatevent.com Project Dates Ongoing since 2016 Project Description Course delineation, and implementation of traffic control for marathon related street closures. Client Name Irvine Ranch Water District Contact Name Scott Beltran Phone/Email (949) 453-5717 beltran@irwd.com Project Dates Ongoing since 1998 Project Description Scheduled and emergency response work zone traffic control services for collections, construction, and maintenance departments. Client Name Orange County Water District Contact Name Ben Lockhart Phone/Email (714) 378-3293 blockhart@ocwd.com Project Dates Ongoing since 2009 Project Description Scheduled work zone traffic control services. Client Name Ocean Blue Environmental Services, Inc. Contact Name Ed Acosta Phone/Email (562) 429-8612 fasteddie85000@aol.com Project Dates Ongoing since 2010 Project Description Emergency response work zone traffic control services. 25E-22 Appendix ATTACHMENT 3-1: NON -COLLUSION AFFIDAVIT CERTIFICATIONS NON -COLLUSION AFFIDAVIT (Title 23 United States Code Section 112 and Public Contract Code Section 7106) To the CITY OF SANTA ANA DEPARTMENT OF PUBLIC WORKS In accordance with Title 23 United States Code Section 112 and Public Contract Code 7106 the BIDDER declares that the bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that the BIDDER has not directly or indirectly induced or solicited any other BIDDER to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived or agreed with any BIDDER or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the BIDDER has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the BIDDER or any BIDDER, or to fix any overhead, profit, or cost element of the bid price, or of that of any other BIDDER, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all statements contained in the bid are true; and, further, that the BIDDER has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid. Note: The above Non -collusion Affidavit is part of the Proposal. Signing this Proposal on the signature portion thereof shall also constitute signature of this Non -collusion Affidavit. BIDDERS are cautioned that making a false certification may subject the certifier to criminal prosecution. Signed State of California County of Orange Subscribed and sworn to (or Kellie Hurst proved before me. li%l 1 ..11� L_ i,MEN affirmed) before me on this 25 day of NOvembe � 201.9 by to me on the basis of satisfactory evidence to be the person(s) who appeared APRIL L. EDBERG COMM. #2214784 z X Notary Public - California c = Los Angeles Couty Comm. Ez fires Se . n18, 20121+ Notary Public Seal City of Santa Ana RFP 19-117 fgn- 3 Appendix ATTACHMENT 3-2: NON -LOBBYING CERTIFICATION CERTIFICATIONS The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that: I. No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. 2. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence any officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal contract, grant loan, loan or cooperative agreement, the undersigned shall complete and submit a "Disclosure of Lobbying Activities". This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U. S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such sub recipients shall certify and disclose accordingly. Firm California Barricade, Inc. Signed and Printed Name: Title Vice President Date November 25, 2019 Kellie Hurst City of Santa Ana RFP 19-117 235g°t-'24 Appendix ATTACHMENT 3-3: NON-DISCRIMINATION CERTIFICATION CERTIFICATIONS The undersigned consultant or corporate officer, during the performance of this contract, certifies as follows: The Consultant shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Consultant shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without, regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. 2. The Consultant shall, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. The Consultant shall send to each labor union or representative of workers with which he/she has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Consultant's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 4. The Consultant shall comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. 5. The Consultant shall furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his/her books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation, to ascertain compliance with such rules, regulations, and orders. 6. In the event of the Consultant's non-compliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, the contract may be canceled, terminated, or suspended in whole or in part and the Consultant may be declared ineligible for further Government contracts or federally assisted construction contracts .in accordance with procedures authorized in Execution Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulations, or order of the Secretary of Labor, or as otherwise provided by law. 7. The Consultant shall include the, portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted City of Santa Ana RFP 19-117 &EA-25 by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section. 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontract or purchase order as the administering agency may direct as means of enforcing such provisions, including sanctions for noncompliance; provided, however, that in the event the Consultant becomes involved in, or is threatened with, litigation with a sub -consultant or vendor as a result of such direction by the administering agency, the Consultant may request that the United States enter into such litigation to protect the interests of the United States. 8. Pursuant to California Labor Code Section 1735, as added by Chapter 643 Stats. 1939, and as amended, No discrimination shall be made in the employment of persons upon public works because of race, religious creed, color, national origin, ancestry, physical handicaps, mental condition, marital status, or sex of such persons, except as provided in Section 1420, and any consultant of public works violating this Section is subject to all the penalties imposed for a violation of the Chapter. Signed: A� Kellie Hurst Title: Vice President Firm: California Barricade, Inc. Date: November 25, 2019 City of Santa Ana RFP 19-117 2V€°="26 Appendix ATTACHMENT 4 INDUSTRIAL SAFETY RECORD (FORM) CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR ON -CALL TRAFFIC CONTROL SERVICES RFP NO.: 19-117 (To be Completed and Submitted with Contractor's Proposal) Number of OSHA Violations within the last 5 years (must state zero if none): 0 Serious 0 Willful o Repeat 0 Other 0 Unclass 0 Total California Barricade, Inc. Firm Name (Print) Signature Kellie Hurst Vice President Name and Title (Print) November 25, 2019 Date City of Santa Ana RFP 19-117 2'8EA27 i:4 � � � #04 � � � �♦ 1�) \« U o k £ \\� k \ % &\ / \ \]§ §\ \ !07 C— �\ »j\ §) je§ % - oc f m =o / \\\ / to M � = \�� 25E- § ) \ ) \k\ \E« ®\/ § ~ �}( § � - $ \v ! $ 2% ƒ§\7 � �(\ )±:g / i2 \) )c ' [ a § zo \ \ o § § ® / )� co \ / § / 4 Contractor Information Legal Entity Name CALIFORNIA BARRICADE RENTALS, INC. Legal Entity Type Carparefan Status Active Registration Number 1000017487 Registration effective date 6/30/2019 Registration expiration date 6/29/2020 Mailing Address 1550 E SAINT GERTRUDE PLACE SANTA ANA 927D5 CA Unit_._ Physical Address 1550 E SAINT GERTRUDE PLACE SANTA ANA 92705 CA Unit_ Email Address Trade Name/DBA CALIFORNIA BARRICADE, INC. License Number(s) CSLB735733 Legal Entity Information Corporation Number: C2035262 Federal Employment Identification Number: President Name: MARK HURST Vice President Name: KELLIE HURST Treasurer Name: KELLIE HURST Secretary Name: KELLIE HURST CEO Name: KELLIE HURST Agent of Service Name: NANCY DOWD Agent of Service Mailing Address: 9921 CARMEL MOUNTAIN ROAD STE. 382 SAN DIEGO 92129 CA United States of America Workers Compensation Do you lease employees No through Professional Employer Organization (PEO)?: Please provide your current workers compensation insurance information below: PEO PEO PEO PEO Information Name Phone Email Registration History Effective Date Expiration Date 6/11/2018 6/29/2019 5/8/2017 6/29/2018 6/15/2016 6/29/2017 9/22/2015 6/29/2016 3/30/2015 6/29/2015 6/30/2019 6/29/2020 Insured by Carrier Policy Holder Name:CALIFORNIA BARRICADE RENTALS, INC.Insurance Carrier: 25E42"ion date:6/30I701RExniration Date: .... _., _.._..r.... _..... STATE COMPENSATION INSURANCE FUN DPolicy Number:906360814_..--r_..... 6/30/2019 25E-30 CITY OF SANTA ANA BUSINESS TAX SECTION (M-15) 20 CIVIC CENTER PLAZA, FIRST FLOOR, P.O. BOX 1964, SANTAANA, CA 92702 (714) 647-5447 4 CITY OF SANTAANA BUSINESS LICENSE TAX RECEIPT BUSINESS TAX NUMBER: 168398 TAX PERIOD: 4/1/2019-3131/2020 BUSINESS NAME: CALIF BARRICADE RENTALS INC AMOUNT PAID: $1,827.00 BUSINESS ADDRESS: 1550 E ST GERTRUDE PL SANTAANA CA 92705-5310 DATE PAID: 02113/2019 OWNER NAME: HURST,MIARK L. -PRES THIS IS NOT A BILL RECEIVED FEB 19 2019 ATTACHED BELOW IS YOUR CITY OF SANTA ANA BUSINESS LICENSE TAX RECEIPT PLEASE DETACH AND POST IN A CONSPICUOUS LOCATION (SEE REVERSE SIDE OF BUSINESS LICENSE TAX RECEIPT FOR POSTING REQUIREMENTS) CITY OF SANTA ANA BUSINESS LICENSE TAX RECEIPT This business license tax account is void upon sale or transfer of a business Every business is responsible for the annual renewal of their business license tax account It is the responsibility of the applicant/licensee to ensure that the business complies with all applicable City codes, City zoning ordinances and all Local, State and Federal Laws. Contact the Business License Tax Office at (714) 647-5447 prior to any of the following changes: Name change Location Change ., Ownership or representative change Business activity change The business license tax receipt must be displayed at the place of business. See reverse side for posting requirements. Sec. V-18. - No required permits waived. The business license issued pursuant to the provisions of this Chapter [Santa Ana Municipal Code (SAMC) Chapter 211 constitutes a receipt for the license fee paid and shall have no other legal effect. A business license is a requirement, not a permit, to transact and carry on any business activity within the city. The business license tax receipt is evidence only of the fact that such tax has been paid. Neither the payment of the tax nor the possession of the business tax receipt authorizes, permits or allows the doing of any act which the person paying or holding the same would not otherwise be entitled to do; and any permit, license, variance or other instrument of approval or evidence that any conditions exist as required by any other Section of this Code [SAMC] or by any statute or code provisions of the state must first be obtained or complied with before the doing of any act or thing for which it is required. (Ord. No. NS-1922, § 1, 7-20-87) The person, firm or corporation named below has been issued this business license tax receipt pursuant to the provisions of the City Business License Tax Code (SAMC Chapter 21). Issuance of this receipt for the business license lax paid shall have no other legal effect (SAMC Sec. 21-18) and is not an endorsement, nor certification of compliance with other ordinances or laws. It is the responsibility of the applicantilicensee to ensure that the business Is operated in compliance with the laws, ordinances and regulations that are now or may hereafter be in force by the United States Government, State of California, and the City of Santa Ana pertaining to such business. In the event it is determined that the applicantilicensee fraudulently applied for or renewed this business license tax account, the account may be suspended or revoked. This business license tax account is nontransferable. Please note that it is your responsibility to renew and update this license annually. Aoft� CITY OF SANTA ANA -TREASURY M-15 20 CIVIC CENTER PLAZA -PO BOX 1964 SANTA ANA, CALIFORNIA 92702 PHONE (714) 6475447 CALIF BARRICADE RENTALS INC 1550 E ST GERTRUDE PL SANTA ANA, CA 92705.5310 THIS LICENSE MUST BE DISPLAYED AT THE PLACE OF BUSINESS BUSINESS TAX NO. 168398 TAX PERIOD: 41112019.313112020 BUSINESS TYPE: EQUIPMENT SALES B RENTALS BUSINESS ADDRESS: 1550 E ST GERTRUDE PL SANTA ANA, CA 92705 BUSINESS NAME: CALIF BARRICADE RENTALS INC OWNERIREP: HURST,MARK L -PRES EXPIRATION DATE: 0313112020 EXHIBIT C SCOPE OF SERVICES AND COMPENSATION GARRICADE M-F Saturday Sunday Hourly Hourly Hourly 1 technician with traffic control vehicle and traffic control devices" for the scope of work. The same hourly price $120.00 $140.00 $160.00 applies to each additional technician. 4 hour minimum per technician. Overtime after 8 hours— per technician $140.00 $140.00 $160.00 Overtime after 12hours —per technician $160.00 $160.00 $160.00 W. I Attenuator vehicle (oer oa¢e A1-2 of RFP) 1 5375.00 1 Service Descriptions: Work area traffic control set-up, job site flagging, lane closures, road closures, detours, and special events. Traffic control devices include cones, signs and stands. Pedestrian barricades, water filled barriers & water, light towers, and message boards are priced separately if needed. Prices will change according to increases or decreases on the prevailing wage determination. A 'not to exceed' amount is directly related to the number of occurrences required by the City and was not included within the RFP. Respectfully Submitted By: /� 11/25/2019 1:7:11 10 AGREEMENT TO PROVIDE ON -CALL TRAFFIC CONTROL SERVICES THIS AGREEMENT is made and entered into this 3rd day of March, 2020 by and between Statewide Traffic Safety and Signs, 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 November 5, 2019, the City issued Request for Proposal No. 19-117, by which it sought qualified contractors to provide on -call traffic control services for the City's 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. 19-117. 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 City's sole discretion, Contractor shall perform the services described in the scope of work that was included in RFP No. 19-1 l7 and that is attached as Exhibit A, and as further delineated in Contractor's proposal, which is attached as Exhibit B and incorporated in full. 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 identified in Exhibit C. Contractor is one of two contractors selected to provide services on an as -needed basis under RFP No. 19-117. The total compensation for services provided by all contractors selected under RFP No. 19-117 shall not exceed the shared aggregate amount of $300,000 during the term of this agreement, including any extension periods. 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 P elofs 25-33 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 March 2, 2023, unless terminated earlier in accordance with Section 17, below. The term of this Agreement may be extended for one 2-year period upon a writing executed by the City Manager and City Attorney. 4. PREVAILING WAGES Contractor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the services being performed are part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 5. 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. 6. 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 Pa e2of8 25 -34 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. 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 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. Page 3 of & 25E-35 (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 contractor, 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 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. 8. INDEMNIFICATION Contractor agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, 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 subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section I 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, 4. 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. Page 4 of 8 25E-36 10. 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 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. f f WEEK9LI]Lt y 1-13 BRIVEVIfmj 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. 12. 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. 13. 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 Page 5 of 8 25E-37 20 Civic Center Plaza (M-30) P.O. Box 1989 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 To Contractor: Statewide Traffic Safety and Signs 1000 Main Street, Suite 100 Irvine, CA 92614 Attn: Don Nicholas, CEO 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 timeframes, weekends, federal, state, County or City holidays shall be excluded. 14. 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. 15. 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 Page 6 of & 25E-38 Agreement performed by City personnel or by other contractors retained by City. 16. 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 similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 17. 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. 18. 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. 19. 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. 20. PROFESSIONAL LICENSES Contractor shall, throughout the term of this Agreement, maintain all necessary licenses, Pa e7of9 25 -39 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. 21. 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: Daisy Gomez Clerk of the Council APPROVED AS TO FORM SONIA R. CARVALHO City Attorney By; 7A,. -f... ,& hn M.'Funk Assistant City Attorney RECOMMENDED FOR APPROVAL Nabil Saba Acting Executive Director Public Works Agency CITY OF SANTA ANA Kristine Ridge City Manager CONTRACTOR Name: DON NICHOLAS Title: CEO I'age R of R 25E-40 EXHIBIT A Appendix ATTACHMENT SCOPE OF WORK CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR ON -CALL TRAFFIC CONTROL SERVICES RFP NO.: 14-117 Introduction I Background The City of Santa Ana intends to retain traffic control specialist contractor(s) on an as -needed or "on -call" basis. A Professional Services Agreement will be entered into with several of the qualified contractor(s) to provide professional traffic control services for a variety of projects in the City. In general, work consists of general traffic control services. Each project may vary and each will be based on task order assignment, the selected contractor(s) shall comply with all City, local, State and Federal traffic related regulations. On occasions, the selected contractor(s) will be asked to provide professional engineering traffic plans for specific task orders, based on an agreed -upon specific scope of services and fees Scope of Services The work consists of temporary and permanent traffic control services and the necessary traffic control devices, personnel and related equipment generally consisting of the following and not limited to: • Work area traffic control setup • Job site flagging • Lane closures • Road closures • Vehicle, bicycle and pedestrian detours • Special event and traffic control The City's Project Manager will notify the contractor(s) when traffic control services are needed. The contractor(s) must be able to respond within a 48 hour period for planned services and within 2-hours of an emergency task order. Note — Contractor(s) may be required to furnish material, equipment and supplies. Work may be performed after hours which may require specific equipment for night time work The Project manager or his/her(s) duly authorized representative will monitor the contractor(s) operations and on periodic basis to assure compliance with proper traffic control and safety procedures. The selected contractor(s) must have the expertise, experience, and demonstrated resources City of Santa Ana RFP 19-117 ZW41 available to perform the work described in this RFP. Project Management. Eouiument(Sunnlfes: The contractor(s) services and materials shall be in accordance with the provisions, guidelines and specifications detailed here in and not limited to the latest editions of the following: Manual on Uniform Traffic Control Devices (MUTCD), Work Area Traffic Control Handbook (WATCH), American Association of State Highway and Transportation Officials (AASHTO), Caltrans, the Americans with Disabilities Act, the City of Santa Ana Municipal Code (SAMC), professional Standards established by the City, and or federal, state and local guidelines established in the project. All vehicles involved in the traffic control job order shall be clearly identified, and any vehicle participating in traffic control setups and takedowns must have all warning and flashing signs properly and fully functional including and not limited to: warning signs, flashing lights, arrow boards, and safety backup alarms. Traffic mounted attenuators will be required for traffic control performed on major arterial streets. The contractor(s) shall have project management control procedures in effect during the entire time work is being performed under the Agreement. This task shall include the following: • Project Management Plan- the consultant shall provide a detail management plan including information and coordination to ensure compliance and completion of the job order tasks • Quality Control/Quality Assurance (QA/QC) Plan • Project Schedule/Invoicing • Project Correspondence In case of conflict, ambiguities, discrepancies, errors, or omissions, the contractor(s) shall submit the matter to the City for clarification. The following services/items shall include, but are not be limited to: 1. If included in the on -call project scope, attend meetings with the City staff as required. 2. The contractor(s) shall coordinate the work with the proper regulatory agencies and have their respective representatives on site if required. 3. Contractor shall monitor 0 traffic control setups to ensure proper functioning and or to repair damaged or missing traffic control. 4. The contractor(s) personnel shall be responsible and carry themselves in a professional manner to the general public and City Staff at all times while performing work for the City. The City reserves the right, at the sole discretion of the project manager, and may request the contractor(s) to remove any employee and or sub-contractor(s) for any reason deem detrimental to the City and the safety of the public. 5. The City reserves the rights to contract for and perform other or additional work on or near the work covered by these specifications. When separate contracts are let within the limits of any one project, each contractor shall conduct his work so as not to interfere with or hinder the progress or completion of the work being performed by other contractors. Contractors working on the same project shall cooperate with each other as directed. Each contractor involved shall City of Santa Ana RFP 19-117 42 assume all liability, financial or otherwise, in connection with this contract and shall protect and save harmless the City from any and all damages or claims that may arise because of inconvenience, delays, or loss experienced by him because of the presence and operations of other contractors working within the limits of the same project. All information regarding the job order and or documentation related to the project and approved by the City, will then become property of the City. A more detailed scope of work will be provided when/if a specific project or Task Order proposal is requested from the contractor(s). All tasks orders shall include the staff title, hours, hourly rate and totals as related to the project. (See Fee Proposal Section). City Responsibilities: The City will provide information in its possession relevant to the preparation of the required information in the RFP, The City will provide only the staff assistance and the docuumentation specifically in referred to herein. • Furnish scope of work and provide general direction as needed for the assigned project • All plan check coordination within the City • Advertise, award, and administer of contract • Electronic files (sample plans & specifications, City of Santa Ana's CADD Standards) if needed Fee Proposal: In addition to Section IV.13.3 (Submittal Requirements: Fee Proposal) fee schedule shall be structured as follows: The fee proposal shall include the firm's standard hourly fee schedule and/or proieet fee schedule where applicable and as outlined in this this documents. A list of all positions and hourly rates required to Perform the services described herein. A more detailed scope of work will be provided when/if a specific Proiect or Task Order proposal is requested from the contractor(sl. Other Terms and Conditions: 1. The project will be implemented in compliance with the City of Santa Ana's policies, as well as Prevailing Wages and State/Federal Requirements. 2. The City reserves the right to amend this Request for Proposal by addendum prior to the final dates of submission. 3. All reports, proposals, or other data or materials which are submitted shall become the sole property of the City of Santa Ana with the exception of the confidential Financial Capacity information and fee proposals. 4. All products used or developed in the execution of any contract resulting from this request will remain in the public domain at the completion of this project. City of Santa Ana RFP 19-117 2MA143 S. The City has an affirmative action program. The purpose of the affirmative action program is to encourage certified minority business enterprises and women business enterprises. All submitting firms must have established affirmative action programs approvable by the City. During the RFP stage, all firms will need to complete a "Certification of Non -Discrimination by Contractors" for each firm on their team. 6. Accessibility. The Contractor shall fully inform himself regarding any particularities and limitations of the space available for the work to be performed. The contractor(s) shall exercise due and particular caution to determine that all parts of his work are made quickly and easily accessible. 7. Cleanup during performance and upon completion of the work for this project contractor will remove all unused equipment of service, all excess or unsuitable material, trash, 8. Rubbish, and debris, and legally dispose of same, unless stated or directed otherwise by these specifications. Contractor shall leave the entire area clean in an acceptable condition as approved by the City. 9. Examination of Specification and Site. Contractor is expected to carefully examine the site of the proposed work and all proposal specifications, documents, and forms. He shall satisfy himself as to the character, quality, and quantities of work to be performed, materials to be furnished and the requirements of the proposed specifications. 10. Independent Contractor. In accepting this contract, Contractor covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services hereunder, Contractor further covenants that, in the performance of this contract, no subcontractor or person having such an interest shall be employed. Contractor certifies that to the best of his knowledge, no one who has or will have any financial interest under this contract is an officer or employee of City. It is expressly agreed by Contractor that in the performance of the services required under this contract, Contractor, and any of its subcontractors or employees, shall at times be considered independent contractors and not agents of City. 11. Protection of Public. Adequate warning devices, barricades, guards, flagmen or other necessary precautions shall be taken by the contractor to give advanced and reasonable protection, safety and warning to persons and vehicular traffic concerned in the area. 12. Unknown Obstructions. Should any unknown obstruction be encountered during the course of this contract the Contractor immediately bring it to the attention of the City. The contractor shall be responsible for the protection of all existing equipment, furniture, or utilities encountered within the work area. 13. Rejection of Work. Contractor agrees that the City has the right to make all final determinations as to whether the work has been satisfactorily completed. 14. Independent Contractor. In accepting this contract, Contractor covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services hereunder. Contractor further covenants that, in the performance of this contract, no subcontractor or person having such an interest shall be employed. Contractor certifies that to the best of his knowledge, no one who has or will have any financial interest under this contract is an officer MIND, or employee of City. It is expressly agreed by Contractor that in the performance of the services required under this contract, Contractor, and any of its subcontractors or employees, shall at times be considered independent contractors and not agents of City. 15. Subcontractors Contractor agrees to bind every subcontractor to the terms of the Agreement Documents as far as such terms are applicable to subcontractor's portion of The Work. Contractor shall be as fully responsible to the City for the acts and omissions of its subcontractors and of persons either directly or indirectly employed by its subcontractors, as Contractor is for acts and omissions of persons directly employed by Contractor. Nothing contained in these Agreement Documents shall create any contractual relationship between any subcontractor and the City. The City reserves the right to approve all subcontractors. The City's Approval of any subcontractor under this Agreement shall not in any way relieve Contractor of its obligations in the Agreement Documents. Prior to substituting any subcontractor listed in the Proposal Fors, Contractor must comply with the requirements of the Subletting and Subcontracting Fair Practices Act pursuant to California Public Contract Code section 4100 et seq. 16. Safety Requirements/Violations • Safety at the Project site during performance of the work is of paramount concern to the City. Accordingly, the City will review violations recorded as serious or willful for federal or state OSHA regulations within the last five (5) years. Contractors must identify the number of OSHA violations on the CONTRACTOR'S INDUSTRIAL SAFETY RECORD form. Any serious or willful violation may render a proposal as non -responsive. We strongly encourage full disclosure, since failure to identify all violations on the CONTRACTOR'S INDUSTRIAL SAFETY RECORD for may result in rejection of the proposal as non -responsive or the contractor as non - responsible following a hearing A citation properly appealed through OSHA is not considered to be a violation until the matter is closed and considered final by OSHA. The City still expects this information to be disclosed by the contractor, with an explanation and documentation showing that the matter is properly under appeal with OSHA and not considered closed or final. Failure to be forthcoming with this information may result in rejection of the proposal as non -responsive. Notwithstanding the preceding, the City may waive this criterion in its sole and absolute discretion. • Describe your safety measures plan to assure the City that all applicable OSHA regulations will be adhered to with the inclusion of an Injury and Illness Prevention Program. 19-117 EXHIBIT B mu TnaFFrc SAFETY a aroNs wwmstatewddesafelv,com CA CONTRACTOR LICENSE 9975518 -CLASS A, C-31, C-32 & C-611D-42 DIR PW 01000001109 STATEMENT OF QUALIFICATIONS (SOQ) 25E-46 ail l:J� TRAMC SAFETY A SIGNS ro:�wtii.st�arcuicfeste�edi cuaz; CA CONTRACTOR LICEN5E #975518 - CLASS A, C-31, C-32 & C-61/D-42 DIR PW #1000001109 Cover Letter November 26, 2019 Mr. Rudy Rosas Santa Ana Public Works Agency City of Santa Ana, California 20 Civic Center Plaza Santa Ana, CA 92701 Subject: RFP No. 19-117 On -Call Traffic Control Services Dear Mr. Rosas, Statewide Traffic Safety and Signs, Inc. (STSSI) has attached our proposal for the City of Santa Ana's RFP No. 19-117: On -Call Traffic Control Services. We acknowledge receipt of all addenda issued before the bid date of this RFP. As CEO of STSSI, I have the legal authority to contractually bind the company. Our CFO, Marty Breen, also has the legal authority to contractually bind the company STSSI Contact and Location Services the City of Santa Ana: Kory Fivecoet, Branch Manager 13261 Garden Grove Blvd. Garden Grove, CA 92843 Phone: (714) 468-1919 Email: kfvecaat,t,stssi.com; serrices;stssi cam We are committed to providing the best possible service to the City of Santa Ana and are confident we can offer value-added services to effectively and efficiently complete tasks assigned to us under this contract. Thank you for the opportunity to provide our Traffic Control Services to the City of Santa Ana. Statewide Traffic Safety so Signs, Inc. Don Nicholas CEO 522 Lindon Lane Nipomo, CA 93445 ctnicholas sz, stssi.com (805) 92950-5070 25E-47 LAWrc Arrwa www. statewidesafety. com CA CONTRACTOR LICENSE #975518 -CLASS A, C-31, C-32 & C-61tD-42 DIR PW 41000001109 Contract Agreement Statement No Concurrence or concerns with the provisions in Appendix 2 — Agreement at this time. 25E-48 !! r TRAFFIC SAFETY A SIQNS ru 11.'stalewidesa4-tv.com CA CONTRACTOR LICENSE #975519 - CLASS A. C-31, C-32 & C-611D-42 DIR PW #1000001109 Firm and Team Experience Statewide Traffic Safety and Signs Inc. (STSSI) was established as a business in 1987. Since then, STSSI has positioned itself as an industry leader in traffic control in California, with 11 offices located throughout the state, with 1 office in Nevada to provide outstanding service to our customers wherever the need arises. STSSI provides rental services and sales of traffic control products, as well as providing services ranging from traffic plans, permits, sign fabrication, and traffic closures on surface streets, highways, and major freeways. Services Construction Zone Traffic Permit Process Flagging Control K-Rail Installation Permanent Sign Installation Traffic Plans Crash Cushion Installation Construction Sign Installation Freeway and Road Closures Special Events Products K-Rail — Concrete, Plastic, Changeable Message Signs- Barrier Systems Water -Filled Full-Size/Mini Delineators, Cones, Light Towers Crash Cushions Barricades, Safety Products Solar Arrow Boards Construction Area Signs and Crowd Control Barricades Attenuator Trucks Fence Panels Warning & Airport Flags The Sign Division provides signage of all types: Architectural — InteriorlExtenor Building Face Lettering Building Signs OSHA Magnetics for Vehicles Decals and Logos Special Traffic Control Signs Channel Letters ADAIBraille Fleet Graphics Regulatory and Warning Banners and Stencils Traffic Planning Our traffic plans are prepared by knowledgeable professional staff to scale and based upon the requirements set forth In the current California Manual on Uniform Traffic Control Devices (M.U.T.C.D.) and in accordance with the requirements of the local agency. If required, STSSI uses the service of a registered P.E. Civil Engineer to additionally review and stamp our plans. We also have available the services of a Certified Traffic Engineer who will prepare and stamp temporary traffic signal plans. Professional CAD drawn plans to scale; Site surveying Our representatives will meet with you to determine you work zone, time, and safety requirements and develop a traffic plan that fits your needs. We can develop pre -hid traffic plan sets or develop traffic plan sets from existing construction plans. Permit Services Our Permit Services include: Plan submittals are sent directly to all agencies; We handle all approvals, revisions, paperwork and fees. Our staff attends agency meetings to coordinate traffic control, design and approval. We obtain all V party signatures (if required) for approval of submitted plans for Fire and Safety Agencies. STSSI places customer service, as its highest priority and we pride ourselves on our quick response to all customer requests. We also offer EMERGENCY RESPONSE which includes coordinating with State, City and Local Agencies for implementation of traffic control following MAJOR INCIDENTS, such as: earthquakes, mudslides, fires, floods and terrorist attacks. 25E-49 STrna�rc sar�rr � sx;tnta - www.slulewidesakIy, earn CA CONTRACTOR LICENSE 4975518 -CLASS A, C-31, C-32 & C-6IfD-42 DIR PW #1000001109 Project Team (Resumes attached to this Statement of Qualifications): - Kory Fivecoat (Branch Manager) Manages STSSI operations in our Garden Grove, California branch which services Los Angeles and Orange Counties of Califomia. Projects, and personnel involved, under his management range from construction area signs, traffic design, traffic control, traffic detours, temporary and permanent signage, crash attenuation, and work zone safety. Kory Fivecoat will be one of the STSSI representatives to conduct the presentation, if invited for an interview - Mike Razo (Dispatcher/Project Manager) Dispatched Project Manager for STSSI Garden Grove, California which services Los Angeles and Orange Counties of California. Mike dispatches and coordinates labor, material and equipment for projects relating to construction area signs, traffic design, traffic control, traffic detours, temporary and permanent signage, crash attenuation, and work zone safety. 25E-50 REA r AFF saw s►o�ls wwlw.statewidesafeiy, com CA CONTRACTOR LICENSE 4975518 - CLASS A, C-31, C-32 & C-6ILD-42 DIR PW #1000001109 Understanding of deed Statewide Traffic Safety and Signs, Inc. understands the safety of City of Santa Ana's crews is a top priority for the City. We are committed to providing a safe work zone for all personnel involved and, with our experience and expertise, we will provide the highest standard of traffic control services to the City. STSSI personnel will carry themselves in a professional manner Our 24hour on -call services wilt allow us to respond when notified by the City's Project Manager within 48 hours, for planned services, as well as within 2 hours, for emergency task orders. Our Garden Grove branch is located minutes from all locations within the limits of the City of Santa Ana. We have shown on the map to the right where our branch is located in relation to Stat( 1nO T,4Nd f.h. and S,Fs t� "a the City of Santa Ana. Our proximity to possible work locations under this contract will insure a prompt and efficient response to traffic control requests from the City. Material and equipment required for traffic control work under this contract will be staged on trucks, ready to be dispatched with traffic control crews when task orders are initiated by the City's Project Manager. We understand that after hours work may require additional equipment and have this equipment on standby as well. STSSI vehicles will be clearly identified and fully equipped with all the necessary warning and flashing signs to fulfill the task order. Traffic Mounted attenuators will be used on major arterial streets As part of the contract requirements, STSSI will attend meetings with the City Staff as required. We have extensive experience coordinate with regulatory agencies and will involve the respective agencies representatives on site, if necessary. If the situation arises where unrelated work is concurrently be performed on or near the work covered by this contract, STSSI will cooperate and coordinate as directed by the City. Our management and crews will monitor all traffic control setups to ensure proper functioning and repair damaged or missing traffic control as necessary. In order to provide our services at a professional level, STSSI has project management control procedures in place, that include project management plans, QA/QC plans, project schedule/invoicing procedures„ and project correspondence procedures. 25E-51 Nrr TRAFFIC SAFETY & SWNS W 11'11. St nre w'ides afBI v. vo m CA CONTRACTOR LICLNSE #975519 -CLASS A. C-31, C-32 & C-611D-42 DIR PW #I000001109 Relevant Project Experience / References List of projects Statewide Traffic Safety and Signs has current contracts for and has completed within last 5 years. This list includes significant work directly for public agencies and subcontract work in connection with public contracts. Project description: On -Call Traffic Control Services (STSSI Job# 2T7102) Year completed: Current Contract Client name: City of Newport Beach Contact persona Anthony Nguyen Phone number: (949) 644-3080 Project description: On -Call Traffic Control Services (STSSI Job# 2T7064) Year completed: Current Contract Client name: County of Orange DPW Contact person: Ray Vega Phone number. (714) 651-2180 Project description: On -Call Traffic Control — Fugro Project with Caltrans (STSSI Job# 2T8030) Year completed: 2018 — Current Contract Client name: Fugro USA Land Inc. Contact persona Mathew Pollard Phone number. (213) 768-3500 Project description: Traffic Control — Valley Rinaldi & Valley Toluca, Reconductoring I-5 & 1-710 (STSSI Job# 2T9037) Year completed 2019 Client name. Los Angeles, Department of Water & Power Contact person: Keith McCabe Phone number (213) 367-4789 Project description: Woolsey Hill Fire Debris Removal Project (STSSI Job# 2T9017) Year completed. 2019 Client name. Environmental Chemical Corp. (Owner: CA Offices of Emergency Services) Contact person: Barbara Growney Phone number: (201) 953-2790 Additional project experience and agency references can be provided upon request. 25E-52 71tAFF1C SAFETY & SKaN5 www.stalell-idesa&lv.com CA CONTRACTOR LICENSE 0975518 - CLASS A, C-31, C-32 & C-61/D-42 D1R PW #1000001109 E. RESUMES OF KEY PERSONNEL PROPOSED FOR THIS CONTRACT {Complete one Section E for each key person.) Branch Manager 11 lb. FIRM NAMEANU LOCATION (Cllyend Stale) Statewide Traffic Safety and Signs, Inc. 16. EDUCATION (DEGREE AND SPECIALIZATION) 17. CURRENT PROFESSIONAL REGISTRATION (STATEAND DISCIPLINE) A.S. Business Management I N/A (2) YEAR COMPLETED BrarlvI7 Manager - Garden Grove, CA PROFESSIONAL SERVICES CONSTRUCTION(Ifapplicable) NIA Ongoing I a. (3) BRIEF DESCRIPTION (Brfefscope, size, cost etc.) AND SPECIFIC ROLE ® Check itproject performed with current turn Manages STSSI operations in Garden Grove, California which services Los Angeles and Orange Counties of California. Projects under my management range from construction area signs, traffic design, traffic control, traffic detours, temporary and permanent signage, crash attenuation, and work zone safety. (2) YEAR COMPLETED • •• PROFESSIONAL SERVICES CONSTRUCTION Ofapplicable) 11111EWA Ongoing b (3) BRIEF DESCRIPTION (Snefscope. size. cast etc.) AND SPECIFIC ROLE ® Check Hproject performed with cadent firm Branch Manager, Garden Grove On -Call Traffic Control Contract • (2) YEAR COMPLETED • • • F • PROFESSIONAL SERVICES CONSTRUCTION (if applicable) WA Ongoing c (3) BRIEF DESCRIPTION (19defscops, size. cast, etc.) AND SPECIFIC ROLE ® Check it project perm med wdh current Ilan Branch Manager, Garden Grove On -Call Traffic Control Contract (2) YEAR COMPLETED -. - • . , . • s • EPROEESS1�01NALSERVICES CONSTRUCTION (Itappriceble) NIA 2016 (3) BRIEF DESCRIPTION tedefscope, size, cost etc.) AND SPECIFIC ROLE ® Check k project perrormed with current firm a. Branch Manager, Garden Grove/Riverside, CA Work included managed traffic control, construction area signs, crash arrays, temporary and permanent signage, overhead signs and structures, and rentals & sales of traffic control and safety equipment. Project widened the 1-405 through the Sepulveda pass from 1-10 to US Route 101, and overall construction cost was >$1 billion. Statewide portion of work was rou hl $55 million. (2) YEAR COMPLETED 1, - • =11PROFESSIONAL SERVICES rONSTRUCTION freppllcable) NIA 2017 (3) BRIEF DESCRIPTION (Bnafscope, size, cost, etc.) AND SPECIFIC ROLE ® Check ifproject performed with currentfirm e Branch Manager, Garden Grove/Riverside, CA Work includes permanent roadside signs, POEM'S (permanent concrete barrier markers), and Class 1 Delineators. Overall construction valued at - $318 million; Statewide subcontracted for - $119K, 25E-53 �4fiETY jai Sfto11ii5 www.statewidesafet1.corn CA CONTRACTOR LICENSE 9975519 —CLASS A, C-31, C-32 & C-61/13-42 DIR PW #1000001109 E. RESUMES OF KEY PERSONNEL PROPOSED FOR THIS CONTRACT (Complete one Section E for each key person.) Traffic Safetv and 3. ROLE IN THIS CONTRACT Dispatcher/ Project Manager 1g.RELEVANT N/A 27 1 7 (1) TITLE AND LOCATION (Ciry ad 3tatej OIL— (2) YEAR COMPLETED Dispatcherl Project PROFESSIONAL SERVICES CONSTRUCTION(Ifapphcable) NIA Ongoing a. (3)BRIEF DESCRIPFION(Bnefscnpe, size, cost ek:JAND SPECIFIC ROLE ® Cherx If praiect performed with current firm Dispatcher Project Manager for STSSI Garden Grave, California which services Los Angeles and Orange Counties of California. Dispatch and coordinate labor, material and equipment for projects relating to construction area signs, traffic design, traffic control, traffic detours, temporary and permanent signage, crash attenuation, and work zone safety. ' - (2) YEAR COMPLETED EPROFES-5170NA"ERVICOSI CONSTRUCTION flfappacabre) NIA On oing b (3) BRIEF DESCRIPTION (enafacope, size, cast etc)ANDSPECIFIC ROLE ® Check r project perrormetl with mrrrorn firm Dispatcher / Project Manager, Garden Grove On -Call Traffic Control Contract (2) YEAR COMPLETED e 1 e PROFESSIONAL SERVICES CONSTRUCTION (Happlicable) N/A Ongoing a (3) BRIEF DESCRIPTION (enefscnpe, srae, cost, ste.) AND SPECIFIC ROLE ® Check if protect performed with current firm Dispatcher / Project Manager, Garden Grove On -Call Traffic Control Contract (2) YEAR COMPLETED r - . PROFESSIONAL SERVICES CONSTRUCTION (Ifapprcabie) NIA 2016 (3) BRIEF DESCRIPTION (anefscope, size, cost etc.) AND SPECIFIC ROLE Check 0 Projed Performed with current firm d. Dispatcher / Project Manager, Garden Grove/Riverside, CA Work included managed traffic control, Construction area signs, crash arrays, temporary and permanent signage, overhead signs and structures, and rentals & sales of traffic control and safety equipment. Project widened the I-405 through the Sepulveda pass from 1-10 to US Route 1D1, and overall construction cost was 41 billion. Statewide ortion of work was rou hl $55 million. (2) YEAR COMPLETED r • _ ' _ e PROFESSIONAL SERVICES ONSTRUCTION (Ifspplicable) e • e - e . NIA 2017 e (3) BRIEF DESCRIPTION (aAefscope, size, cost etc) AND SPECIFIC ROLE ® Check if Project performed with camel firm Dispatcher/ Project Manager, Garden Grove/Riverside, CA Work includes permanent roadside signs, PCBM's (permanent concrete barrier markers), and Class 1 Delineators. Overall construction valued at- $318 million; Statewide subcontracted for - $119K. 25E-54 �i � !•itif � /✓tilt �lr Iy r1��WIL' .0 DIR PW REG#1000001109 EXP.6/30/2020 Proposal/Quote Statewide - Garden Grove License # 975518 13261 Garden Grove Blvd. Garden Grove, CA 92843 Ph {714) 468-1919 Fax (562) 272-6857 EXHIBIT C BID DATE: 11/26/19 CONTRACT INFO ON -CALL TRAFFIC CONTROL SERVICES RFP NO.: 19-117 PROPOSAL:119958 ESTIMATOR Kellen Blohm CLIENT: EST PROJECT: ESTIMATING DEPARTMENT ON -CALL TRAFFIC CONTROL SERVICES RFP NO.: 19-117 SANTA ANA, CA ITEM # DESCRIPTION QUANTITY PRICE AMOUNT Proposal General Notes: THIS PROPOSAL AND ATTACHED PROVISIONS MUST BECOME A BINDING PART OF ANY SUBCONTRACT TRAFFIC CONTROL SERVICES SPECIFICATIONS: 1 TECH, 1 TC TRUCK, 1 FLASHING ARROW BOARD -Includes TC equipment for (1) lane closure 1 TC TECH 1 TC TRUCK -See attached rate sheet for equipment rental rates. OVERTIME DOUBLETIME SATURDAY closures SUNDAYI HOLIDAY closures +++ALL RATES LISTED ABOVE ARE PREVAILING WAGE +++ +++ALL RATES LISTED ABOVE ARE PORTAL-TO-PORTAL +++ $130.00/HR $95.00/HR $20.00/HR $125.0018-12 HRSiMAN $150.00/HR over 12 HRIMAN $125.00/HR/MAN $150.00/HRIMAN - For more extensive closures or for a more detailed breakdown of rates, additional pricing or quotes can be made available upon request on a case -by -case basis. - Each Traffic Tech must be provided a 30 minute meal period. Missed meal periods will be billed at $60.00 per Traffic Tech. NO RETENTION HELD FOR TRAFFIC CONTROL. TRAFFIC CONTROL PLAN SPECIFICATIONS: WITH ENGINEER STAMP $900.00/PER PAGE WITHOUT ENGINEER STAMP $500.00/PER PAGE DOES NOT INCLUDE TEMPORARY STRIPING OR K-RAIL 25E-55 TBaFFiCMM SKU # I CtL2f Santa Ana - RFP NG.:19-117 Dail Week1 4week Towable & Truck Equipment RT30090 FAS Arrow Board 50.00 160.00 400,00 RT40056 S Monitorin Trailer Radar Trailer 60.00 220.00 550.00 RT40067 Seed Feedback Sin Radar Trailer "CALTRANS" 125.00 400.D0 MOM RT20050 CMS (Changeable Message Sin 2DO.00 500.00 1200.00 RE60145 L' htTower (luersurdrage 80.00 260.00 650.00 NO SKU Balloon Light with Generator 50.00 160.OD 400.00 RT60501 True( Mounted Attenuator 20 miles $.75 perwe 8fiff 425.00 1375.00 3400.00 NO SKU TMA Trailer 225.00 725.00 1800.00 NO SKU Automated Flaqqer Assistance Device AFAR 'ROSA' 300.00 1 1000.00 2500.00 RT50500 Portable Sipal-Set of 2 800.00 1 2200.00 5500.00 Construction sl nslstandsle ul ent- muTcocompffent RT01159 28' Cones, 101b base, reflective sleeves da /n' hf use 0,65 NIA WA RT02512 Delineator postMth base 390 N, 8 or 121b base 0.65 N/A NIA RT02540 Delineator bases only (specify 8 or 121b 0.25 N/A NIA RT02523 Traffic Drum with Base 3.00 NIA NIA R803200 Small Aluminum SIGN 36° or less 2.00 NIA NIA RS03100 Los Aluminum SIGN 36" - 60- 3,00 NIA NIA RS03300 X Large Aluminum SIGN 60' or la r 5.00 NIA N/A RT03900 Tpe I barricade woocilmetal 1 "NO PARKING° ' ns 0.50 WA NW RT03147 To II barricade wookllmetal fl.75 WA NIA RT03113 T III barricade woodlmelal 2.75 NIA NIA RT03709 T e III "Crash Worthy' Barricade--4'xl0' 7.00 WA NIA RT04076 BanicadeLight 0.35 WA N/A RS10992 MESH Roll -up signs DAY use on[ 2.00 WA WA RS1D991 REFLECTIVE Roll -up signs Day or night use 4.00 NIA NIA RWO8227 Warning lags 0.25 NIA NIA Barricades and Barriers RJO2013 Crowd Control Barrier Bike Rack or Parade 5.00 20,00 50.00 RT07558 K-rail water filled 5.00 MOD 50.00 RT07689 RT07591 K-rail Concrete 10' and 20' 4 week minimum Call Cali Cab RT07688 K-rail Lifter 90.00 250-00 650.00 RT07494 Absorb 350 Crash Array 2 element 55.00 MUD 460.00 RT07520 Absorb 350 Crash Array5 element 75.00 240.00 600,00 RT07521 Absorb 350 Crash Array 9 eiemerd BUD 320.00 800,00 RT07073/RT07075 Absorb 350 Addiffonal Elements 5,00 20.D0 50,00 RT03131 Airporl Barricades 6.00 18.00 45.00 RT04077 Adrport Barricade Lights 380 Solar 0.50 N/A WA RT06016116119 Crash Barrels with lid f9N14wgow4w= 5.00 20.00 50.O0 RT06017 Crash cushion IlFdnq clam 25.00 100.00 250.00 Misc. RE10053 12' Beacon Head, vnth battery 20.00 70.00 175,00 RE10064 SOLAR Beacon Head w/baftery 45.00 120.00 300.00 RT08059 Rumble Strips Set of 12 T-13 Sat u p 175.00 520.DO 1300.00 RM08002 Grace Striper Cleanin Fee $75 165.00 MOM 1200.00 RM08399 Graco EcoQuip Vapor Blaster 275.00 900.00 2300.00 Arcata Bakersfield ` Fairfield Fresno Riverside ' Las Vegas 707-625-6927 6614345324 707-864-0952 559-291-0500 951-213-3708 702-318-7035 Garden Grove " Nipomo ' Poway . Redding Sacramento F San Jose 714-468-1919 806-929.5070 858-579-7292 530-222-8023 916462.4855 408,993-9770 25E-56 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2020 TITLE: APPROVE AN AGREEMENT WITH HCI SYSTEMS, INC. IN THE AMOUNT OF $245,422 TO REPLACE A FIRE PANEL AT THE POLICE DEPARTMENT JAIL FACILITY, ESTIMATED DELIVERY COST $255,422 (SPECIFICATION NO. 19-116) (GENERAL FUND) CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 11' Reading ❑ Ordinance on 2n° Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO /s/Kristine Ridge FILE NUMBER CITY MANAGER RECOMMENDED ACTION 1. Authorize the City Manager to execute an agreement with HCI Systems, Inc. for the purchase and installation of an Edwards EST-3 fire alarm panel at the Santa Ana Jail, for the term beginning March 4, 2020 and expiring on December 31, 2020, with a provision for a one-year extension exercisable by the City Manager and City Attorney, in an amount not to exceed $245,422 which includes a contingency of $10,000, subject to non -substantive changes approved by the City Manager and the City Attorney. 2. Approve the Project Cost Analysis for a total estimated construction delivery cost of $255,422, which includes $235,422 for purchase and installation and a $10,000 project contingency, and $10,000 for contract administration, inspection and testing. DISCUSSION The Santa Ana Jail facility's current fire alarm system is the original fire detection system that was installed when the building was constructed in 1997. The existing Edwards IRC-3 fire panels have reached the end of their useful life and are scheduled for replacement. In order to bring the system current and ensure continued compliance with the Orange County Fire Authority, an upgrade to the system is necessary. The fire alarm panels will be upgraded to the manufacturer's latest version of Edwards EST-3 fire panels. There are a total of eight panels being replaced. This is the first of three phases to bring the Jail fire monitoring system current. The Jail's fire alarm initiating devices and audio/visual devices will be upgraded in FY 2020-21 and FY 2021-22, respectively. On October 31, 2019, PWA issued a Request for Proposals (RFP) for fire alarm system control panel replacement at the Santa Ana Jail facility. The RFP was advertised on the City's PlanetBids website. Twenty-four vendors were notified and 21 vendors downloaded the proposal files. HCI Systems, Inc. was the only firm that submitted a proposal. City staff evaluated the proposal based 25F-1 Approve Agreement with HCI Systems, Inc. March 3, 2020 Page 2 on the criteria as outlined in the RFP, and found HCI Systems, Inc. was responsive to the RFP, including experience working at other secured facilities of similar nature. Staff entered into negotiations with HCI Systems, Inc. and they reduced their total proposal by $46,969, which is a 17% reduction of their initial proposal (Exhibit 1). 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). FISCAL IMPACT The estimated total delivery cost of the project is $255,422, which includes the contract, contract administration, inspection, testing, and contract contingency. The funding is budgeted and available for expenditure in Fiscal Year 2019-20. The following table summarizes the estimated expenditures: Fiscal Year Accounting Unit- Fund Description Accounting Unit, Account Amount Account # Description General Fund $255,422 FY 2019-20 01114403-62300 Police Building & Facility, Contract March -June Department Services -Professional Total $255,422 Nabil Saba, PE Acting Executive Director Public Works Agency David Valentin Chief of Police Santa Ana Police Department NS/TC/GL Exhibit: 1. Agreement APPROVED AS TO FUNDS AND ACCOUNTS: Kathryn Downs, CPA Executive Director Finance and Management Services Agency 25F-2 EXHIBIT 1 AGREEMENT TO PROVIDE AND INSTALL FIRE ALARM PANELS AT SANTA ANA JAIL THIS AGREEMENT is made and entered into this 4th day of March, 2020 by and between HCI Systems, 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 October 31, 2019, the City issued Request for Proposal No. 19-116, by which it sought a contractor to provide and install upgraded fire alarm panels at the Santa Ana Jail. B. Contractor submitted a responsive proposal that was 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. 19-116. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional contracting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Contractor shall perform the services that were described in the scope of work that was included in RFP No. 19-116 and that is attached as Exhibit A, and as further delineated in Contractor's proposal, which is attached as Exhibit B and incorporated in full. 2. COMPENSATION a. City agrees to pay, and Contractor agrees to accept as total payment for its services under this Agreement, the rates and charges identified in Exhibit B. The total sum to be expended under the term of this Agreement, including any extension periods, shall not exceed $245,422. This sum is comprised of (1) the base amount of $235,422 and (2) a contingency of $10,000 for additional services at the City's sole discretion. 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 and Scope of Work, which may reasonably be expected by City. Z5FJ 3. TERM This Agreement shall commence on the date first written above and terminate on December 31, 2020, unless terminated earlier in accordance with Section 18, below. The term of this Agreement may be extended for up to one 1-year period upon a writing executed by the City Manager and City Attorney. 4. PREVAILING WAGES Contractor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the services being performed are part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 5. 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 mariner 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. 6. 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. Page 2 of 9 25F-4 7. 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 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. Workers' Compensation Insurance. In accordance with the California Labor Code, Contractor, if Contractor has any employees, is required to be insured against liability for workers' compensation or to undertake self-insurance. Prior to cormnencing 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 Contractor, without thirty (30) days prior written notice to the City. (iv) Contractor shall supply City with a fully executed additional insured endorsement. Page 3 of 9 25F-5 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 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. 8. INDEMNIFICATION Contractor agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, 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 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. 9. 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. 10. 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 Page 4 of 9 25F-6 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 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. 11. 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. 12. 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. 13. BACKGROUND CHECK REQUIREMENTS Contractor shall not assign any employee, agent, subcontractor or volunteer to provide services pursuant to this Agreement, if that employee, agent, subcontractor or volunteer is required to register as a sex offender under California Penal Code Section 290 et seq., has a conviction for any crime of moral turpitude, has a conviction for a violent felony as defined in California Penal Code Section 667.5(c), or has a conviction for a serious felony as defined in California Penal Code Section 1192.7(c). Disqualifying convictions include but are not limited to, violations of California Penal Code Sections 37, 128, 136.1 with Section 186.22, 187, 190-190.4 and 192(a), 205, 206, 207-209.5, 211, 212, 212.5, 213, 214, 215, 218-219, 220, 236.1(b) or 236.1(c), 243.4, 261, 261.5, 273.5, 262, 264.1, 266, 266c, 266h, 266i, 266j, 267, 269, 272, 273a, 273ab, 273d, 285, 286, 288, 288a, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 290, 311.1, 311.2, 311.3, 311.4, 311.10, 311.11, 314, 347(a), 368, 417(b), 451(a), 518 with 186.22, 647.6, 653f(c), 664 and 187, 667.5( c), 18745,18750, or 18755, 12022.53, 11418(b)( 1) or (b)(2); Business and Professions Code Section 729. Failure to comply with this Section shall be grounds for immediate termination of this Agreement. The Santa Ana Police Department reserves the right to run a records check and/or Page 5 of 9 25F-7 Live Scan on Contractor's employees working in its facilities. 14. 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 Executive Director Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-21) P.O. Box 1988 Santa Ana, CA 92702 To Contractor: HCI Systems, Inc. 1354 South Parkside Place Ontario, CA 91761 Attn: Dario Canizalez, CFO 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 timeframes, weekends, federal, state, County or City holidays shall be excluded. 15. 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 Page 6 of 9 25F-8 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. 16. 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 Contractors retained by City. 17. 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 similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 18. 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. 19. 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. Page 7 of 9 25F-9 20. 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. 21. 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. 22. 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 fast above written. ATTEST: CITY OF SANTA ANA Daisy Gomez Clerk of the Council APPROVED AS TO FORM SONIA R. CARVALHO City Attorney By: 16 M. Funk Assistant City Attorney Kristine Ridge City Manager CONTRACTOR 02/05/2020 Name: Dario Caniza ez Title: CFO Page 8 of 9 25F-10 RECOMMENDED FOR APPROVAL Nabil Saba Acting Executive Director Public Works Agency Page 9 of 9 25F-11 EXHIBIT A a' ATTACHMENT 1-SCOPE OF WORK 1. GENERAL SCOPE OF WORK The Contractor shall furnish all supervision, labor, equipment, materials and supplies to furnish and install a replacement/upgrade to the fire alarm system control panel at the Santa Ana Jail facility. Contractor shall remove eight (8) existing Edwards IRC-3 addressable Network panel(s), components and install now EST3 panel(s), connect to the existing Fireworks System at the Police Department Building and install at the Jail Facility Control Center a FireWorks System Touch Screen for Monitoring, while maintaining flrll operation at all time prior to switching over to maintain an operable system at all times. The existing Edwards IRC-3 panels that will be removed will be turned over to City staff. Existing sequence of operations will be maintained along with system labeling. All existing field devices to remain as -is. The following work shall be performed and completed: • Furnish and Install eight (8) IRC-3 panels located in the following communication rooms: o Basement o IsQ Floor 0 2nd Floor 0 3m East+ West 0 4m East+ West 0 5"' Floor Maintenance Area • Contractor is responsible for any rental equipment required to access detectors. • Furnish and install new control panels. • Provide technician labor to perform programming of the new devices and new EST3 Panel(s). • Provide technician labor to perform System Commissioning along with one (1) Re test and one (1) final acceptance testing with AHJ (Authority Having Jurisdiction). • Contractor to include a three (3) Year Warranty on the New EST3 Panel(s) and components. The warranty will begin upon final acceptance from the City. • Onsite training of the FireWorks System. • Plans and permits shall be included and are the responsibility of the contractor. Contractor shall produce engineered shop drawings, bill of materials and provide submittal packages for plan cheek to the AHJ and Project Manager, Gabriela P. Lomeli. All drawings to be produced in PDF format with as•builts. 2. BIDDER MINIMUM QUALIFICATIONS 1) Bidder must be an Edwards EST Authorized Distributor. 2) Bidders must have, at the time of bid submittal and for the duration of the contract, a valid, current B (General Building) OR C7 (Low Voltage Systems) OR C10 (Electrical) license issued by the California Contractors License Board (CSLB), for the type of work performed. 3) Bidders shall also ensure that any subcontractors also possess, at the time of bid submittal and for the duration of the contract, at least one of the licenses listed above, for the work they will perform for this contract. 25F-12 AGREEMENT TO PROVIDE AND INSTALL FIRE ALARM PANELS AT SANTA ANA JAIL THIS AGREEMENT is made and entered into this 4th day of March, 2020 by and between HCI Systems, 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 October 31, 2019, the City issued Request for Proposal No. 19-116, by which it sought a contractor to provide and install upgraded fire alarm panels at the Santa Ana Jail. B. Contractor submitted a responsive proposal that was 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. 19-116. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional contracting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Contractor shall perform the services that were described in the scope of work that was included in RFP No. 19-116 and that is attached as Exhibit A, and as further delineated in Contractor's proposal, which is attached as Exhibit B and incorporated in full. 2. COMPENSATION a. City agrees to pay, and Contractor agrees to accept as total payment for its services under this Agreement, the rates and charges identified in Exhibit B. The total sum to be expended under the term of this Agreement, including any extension periods, shall not exceed $245,422. This sum is comprised of (1) the base amount of $235,422 and (2) a contingency of $10,000 for additional services at the City's sole discretion. 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 and Scope of Work, which may reasonably be expected by City. 3. TERM Page 1 of 9 25F-13 APPENDIX ATTACHMENT I --SCOPE OF WORK Bidder shall obtain, pay for and maintain, in good standing, all necessary licenses and permits to accomplish the work. Bidders will be considered non -responsive unless proper licensing requirements are met. An invalid license will result in rejection of the bid. Positive verification of a valid license issued by CSLB will be performed by the City of Santa Ana. A minimum of three (3) references, including municipality name and address, contact name, and phone number, for municipal customers receiving similar services are required and must be submitted with each bid. References must be located in Los Angeles County, Orange County, or Inland Empire. These references shall be used in the evaluation of this bid to determine award, 3. CHARGES Man-hours paid under this contract shall be only for productive hours at the job site. Time spent for transportation of workers, material acquisition, handling and delivery, or for movement of contractor owned or rental equipment is not chargeable directly but is overheard and shall be included in the rate bid for basic labor. 4. CLEAN UP The contractor shall be responsible for removing all debris from the site and cleaning affected areas after performing the work. Contractors shall keep the site free of debris and unstable material resulting from their work at all times and, upon completion, leaves all affected areas as they were prior to beginning work. 5. PROTECTION OF PROPERTY The contractor shall perform work in such a manner that does not damage property. In the event damage occurs to property by reason of any repairs of installation performed under this contract, the contractor shall replace or repair the same at no cost to the City. If damage caused by the contractors must be repairei or replaced by the City, the cost of such work shall be deducted from any outstanding balance due to the contractor. 6. GUARANTY All work performed and all material and equipment firrnished under this contract shall be free from defects and shall remain so for a period of at least one (1) year from the date of acceptance. The full cost of maintenance, labor and materials required to correct any defect during this one year period shall be included in the submittal bid. All work performed by contractor shall be to professional standards, complying with the requirements of the applicable editions of State and Local building codes. The contractor shall complywith the applicable health and safety requirement of Cal/OSHA, State of California Construction Safety Orders, and the recommendations of the manufacturer of the product applied in the work, 7. POST CONTRACT MAINTENANCE 1) Complete maintenance and repair service for the fire alarm system shall be available from a factory trained authorized representative of the manufacturer of the major equipment for a period of three (3) years after expiration of the guaranty. 25F-14 APPENDIX ATTACHMENT 1— SCOPE & WORK 2) As part of the bid/proposal, include a quote for a maintenance contract to provide all maintenance, tests, and repairs described below. Include also a quote for unscheduled maintenance/repairs, including hourly rates for technicians trained on this equipment, and response travel costs for each year of the maintenance period. Submittals that do not identify all post contract maintenance costs will not be accepted. Rates and costs shall be valid for the period of three (3) years after expiration of the guaranty. 3) Maintenance and testing shall be on a semi-annual basis or as required by the AHJ. A preventative maintenance schedule shall be provided by the contractor describing the protocol for preventative maintenance. The schedule shall include: a. Systematic examination, adjustment and cleaning of all detectors, manual fire alarm stations, control panels, power supplies, replays, waterflow switches and all accessories of the fire alarm system. b. Each circuit in the fire alarm system shall be tested semiannually. c. Each smoke detector shall be tested in accordance with the requirements of NFPA 72. 25F-15 EXHIBIT B 4 `18 RCI s Ontario o Burbank 9 San Diego a Irvine 9 Fresno o Sacramento 9 Hayward ���%iii►►► Systems Inc. Telephone: (877) 331-2084 Fax: (909) 628-7774 DIRN: 1000000046 CA Contractor Lie: 905493 Project: Santa Ana PD Fire Alarm Upgrade (Jail) Phase I 60 Civic Center Plaza Santa Ana, CA. 92701 RFP 19-116 PROPOSAL FOR FIRE ALARM SYSTEM REVISION #1 CUSTOMER 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 January 8, 2020 Dario Canizalez dcanizalezna hcisystems.net Cell: (714) 932-8914 Office: (909)781-6262,205 Fax: (909)-628-7774 Dario Canizalez CFO 25F-16 HCI. Ontario * Burbank 9 San Diego * Irvine 9 Fresno 9 Sacramento 9 Hayward ���iii►►► Systems Inc. Telephone: (877) 331-2084 Fax: (909) 628-7774 DIRK: 1000000046 CA Contractor Lie: 905493 Project: Santa Ana PD Fire Alarm Upgrade (Jail) Phase I 60 Civic Center Plaza Santa Ana, CA. 92701 Date: January 8, 2020 FIRE ALARM PROPOSAL HCI proposes to install a complete system(s) as described below. This proposal is based on: JOB WALK ONLY Dated Drawings Section Through: N/A Spec Section Through: Addendum A SCOPE OF WORK HCI proposes to upgrade the existing EST IRC fire alarm panels to the new EST-3, state of the art addressable fire panels. HCI will replace these on a one to one basis. HCI will not perform any upgrades to the intiating devices or visual alarms as part of this project. These to be done at a future time. This Proposal is based upon the provided points list and photo's provided by Santa Ana PD. This proposal excludes plan check, permit and inspection fees. HCI shall furnish asbuild drawings for the new panels being installed. This proposal excludes plan check, permit and inspection fees per your request. HCI shall furnish asbuild drawings for the new panels being installed and equipment provided in this proposal only. HCI proposes to furnish and install the fire alarm system with conduit, wire and boxes should any need to be provided. This proposal is based on a clean work flow with limited interuptions as well as easy access with the help of a Santa Ana PD escort. This proposal includes all HCI employees to be working on site will us the City required Live Scan fingerprinting services at the cost to HCI. This proposal includes prevailing page labor rates per specification. Applicable taxes and freight are included. This proposal includes a Cellular & POTS dialer (DACT) for connection to a 24 hour off -site monitoring facility. Programming shall be provided at an additional cost if the owner selects to utilize a monitoring service other than that provided by HCI. This proposal will provide for the new panels to communicate with the old panels so the need for firewatch will be limited as discussed on the bid walk dated 11/14/19. HCI will not provide firewatch for this project. This to be provided by the City of Santa Ana and is excluded from this proposal. Painting, patching, access hatches, fire caulking, fire stopping, underground raceway, trenching, X-Ray and coring are excluded unless specifically listed below. 25F-17 . ` Ontario • Burbank •San Diego • Irvine * Fresno ®Sacramento a Hayward tt__��►► _..,Systems Inc. Telephone:(877) 331-2084 Fax: (909) 628-7774 b t & 1000000046 CA Contractor Lic: 905493 Project: Santa Ana PD Fire Alarm Upgrade (Jail) Phase I 60 Civic Center Plaza Santa Ana, CA. 92701 This proposal is contingent upon the owner providing HCI with a copy of the current fire alarm control panel operating software on a computer diskette at no additional cost. If this requirement cannot be met, additional cost shall apply. HCI will provide a performance bond as required in the RFP 19-116 This proposal includes three (1) year warranty that includes parts and labor for all parts provided in this proposal as well as additional two (2) years for the parts provide in this proposal. This does not include wiring as the existing wiring will be used for this project. This proposal is valid for (120) days from the date referenced on this document. This proposal includes demo of existing devices and cabling no longer required for future connections only. This proposal excludes parking fees. Asbestos containment and abatement are excluded. The following is a list of system components to be furnished by HCI based on the bid documents and the items listed below: FIRE ALARM SYSTEM OTV. DESCRIPTION 8 FIRE ALARM CONTROL PANEL W/BATTERIES (EST3) 1 PRINTER, 120VAC 1 CELLULAR DIALER 2 MONITOR MODULE, DUAL POINT (PANEL MT) 8 SIGNAL SYNC MODULE (POWER SUPPLY) 12 CONTROL RELAY (UIO MOUNT) 24 SIGNAL MODULE, SINGLE (UIO MOUNT) 12 INTERFACE RELAY, 10AMP RATING Q 120VAC 6 MCC BOARD 1 FIREWORKS WORKSTATION 8 40 WATT ZONED AMPLIFIER 17 SYSTEM SENSOR LOOP CONTROLLER 10 BATTERIES (12v 24AH) 6 BATTERIES (1 2v 40AH) LOT INSTALLATION DRAWINGS & SUBMITTALS LOT CUSTOMER TRAINING TOTAL PROPOSAL COST: $ 235,422.00 25F-18 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2020 TITLE: APPROVE LEGAL SERVICES AGREEMENT WITH RUTAN & TUCKER LLP FOR LAND USE AND CALIFORNIA ENVIRONMENTAL QUALITY ACT LITIGATION SERVICES IN AN AMOUNT NOT TO EXCEED $150,000 /s/Kristine Ridge CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1sl Reading ❑ Ordinance on god Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager to execute an agreement for legal services with the law firm of Rutan & Tucker, LLP ("Rutan") for land use and California Environmental Quality Act ("CEQA") litigation services, effective March 3, 2020 until March 2, 2023, with a provision for a one-year extension exercisable by the City Manager and City Attorney in an amount not to exceed $150,000, subject to non -substantive changes approved by the City Manager and the City Attorney. DISCUSSION Rutan is a preeminent law firm specializing in land use, entitlements, litigation, corporate and tax services, government and regulatory work, employment, and real estate services. Rutan has offices in Orange County, Palo Alto, and San Francisco, California. Pursuant to this legal services agreement, Rutan would be retained to defend the City of Santa Ana and Santa Ana City Council in the recently filed writ of mandate alleging failure to comply with CEQA pertaining to the approval of the development project at 2525 North Main Street in Santa Ana. Because Rutan provides a variety of services to public and private clients throughout Orange County, the firm may need a conflict waiver which is not unusual for regional law firms with expertise in CEQA and municipal law. As is the City's past practice, the City Manager will sign conflict waivers, if needed. The Development Agreement and applicable resolutions require the developer to defend and indemnify the City in the event of litigation regarding the project. Accordingly, the developer will be responsible for depositing funds with the City for payment of the legal services provided for pursuant to this agreement (Exhibit 1). STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement and Sustainability, Objective 3 (facilitate diverse housing opportunities and support efforts to preserve and improve the livability of Santa Ana neighborhoods). 25G-1 Agreement for Legal Services with Rutan & Tucker, LLP March 3, 2020 Page 2 FISCAL IMPACT Developerwill be responsible for depositing funds with the City in the Planning and Building Agency Revenue, Expense Reimbursement account number 05316002-57000 for the cost of the Special counsel legal services under this agreement. Legal fees paid to the law firm will be paid out of the Planning and Building Agency Services, Contract Services -Professional account 05316021-62300 for the development project located at 2525 North Main Street. Sonia R. Carvalho City Attorney Minh Thai Executive Director Planning & Building Agency APPROVED AS TO FUNDS AND ACCOUNTS: Kathryn Downs, CPA Executive Director Finance and Management Services Agency Exhibit: 1. Agreement for Legal Services with Rutan & Tucker, LLP 25G-2 LEGAL SERVICES AGREEMENT WITH RUTAN & TUCKER, LLP This AGREEMENT, made and entered into this 3rd day of March, 2020, by and between Rutan & Tucker LLP ("Attorneys"), and the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the constitution and laws of the State of California ("City"). Collectively City and Attorneys are also referred to as "the Parties." RECITALS A. The City of Santa Ana and the City Attorney desires to employ Attorneys to assist the in- house attorneys for the City ("City Attorney") in the provision of legal services to the City, Borland use and/or litigation regarding compliance with the California Environmental Quality Act ("CEQA") and related matters by a firm with specialized expertise. B. Attorneys represent that they are licensed to practice law in the State of California, have special experience and knowledge providing administrative, advisory and litigation services concerning personnel, labor and employment matters, and desire to undertake said services. 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. RETENTION OF ATTORNEYS On an as -needed basis, and at the sole discretion of the City, City hereby agrees to and does retain Attorneys, for the compensation hereinafter specified, to assist the City Attorney with advisory matters and litigation filed against the City related solely to that certain petition for writ of mandate filed in Orange County Superior Court captioned Santa Ana Citizens. for Responsible Development v. City of Santa Ana (OCSC No. 30-2019-01119794). Attorneys accept said retention and agree to perform, in a timely and efficient manner, all such services as may be requested by the City Attorney. Attorneys shall confirm their acceptance of work requested by City in writing by e-mail or letter. 2. COMPENSATION FOR SERVICES RENDERED a. City agrees to compensate Attorneys, and Attorneys agree to accept from City, as and for payment in full for all services for the foregoing services, all attorneys will bill their time at $375/hour and time will be billed in 1/10th of an hour increments. b. The total sum to be expended under this Agreement, shall not exceed one hundred and fifty thousand dollars ($150,000), including any extension periods. C. City agrees to reimburse Attorneys for out-of-pocket expenses, including but not limited to, transcription, mileage, copying costs, service of process, and mail services authorized by the City Attorney in connection with the performance of duties under this Agreement. In-house printing, copying, and reproduction charges will be reimbursed at the rate of 20 cents per page. Automobile travel will be reimbursed at the standard mileage rate in effect at the time of billing by the Internal Revenue Service. Any costs in excess of $5,000 require City Attorney approval prior to incurring the expense. All expenses must have supporting documentation submitted with the invoice. N29212v4 2 5 G -3 3. METHOD OF PAYMENT Attorneys shall submit a monthly statement specifying the services performed, dates and number of hours, and an itemization of expenses related thereto with supporting documentation (i.e. receipts, invoices, copy of check, etc.). City acknowledges that the fees incurred for work performed by Attorneys on its behalf are due and owing within 30 days of the work being performed. At Attorneys' discretion, they may choose to defer payment. Notwithstanding this, City agrees that it shall tender payment within 30 days of written demand by Attorneys for payment. Unless expressly stated thereon, monthly statements generated by Attorneys shall not constitute written demand, but shall simply be a written reflection of work performed and fees incurred. 4. CONTROL OF LEGAL MATTERS Attorneys agree that each and every matter or proceeding in which they undertake to assist the City Attorney, as aforesaid, shall be and remain under, and subject to the control and direction of said City Attorney at all stages, and that they shall at all times keep the City Attorney informed of all matters pertaining thereto. City will keep Attorneys informed of all significant developments in matters relating to any representation undertaken by Attorneys. Attorneys further agree, if and when their retention hereunder is terminated by City, as hereinafter specified, they shall return to City Attorney any and all files then in their possession concerning each and every matter or proceeding in which they represented the City pursuant to this Agreement. REPORTING REQUIREMENTS a. Attorneys agree to keep the City Attorney, and any other person(s) designated by the City Attorney, informed of significant events in the Actions, including but not limited to trial/hearing date, party deposition dates, filing of motions for summary judgment or other significant motions, hearing date for motion for summary judgment or other significant motions, settlement conference date, and mediation date. b. For litigated matters, Attorneys also agree to provide the following reports: 1) 45 day initial evaluation of case and budget; 2) Periodic status updates 3) Updates on significant occurrences. C. For advisory matters, Attorneys shall provide periodic status updates not less than every 30 days and more often if, in the Attorney's professional experience it is necessary. 6. TERM The term of this Agreement shall commence on the date first written above and terminate on March 2, 2023, unless terminated earlier pursuant to Section 15 below. The term of this Agreement may be extended for up to one (1) year upon a writing executed by both parties, including the City Manager and the City Attorney. 7. INDEPENDENT CONTRACTORS It is mutually agreed by and between the parties that, in the performance of their covenants hereunder, Attorneys are and shall be independent contractors, and not officers or employees of City. #29212A 2 5 G -4 8. INSURANCE Prior to undertaking performance of work under this Agreement, Attorneys shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Attorneys shall provide to the City Attorney proof of Professional Liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim, and maintain such insurance throughout the term of this Agreement. b. If Attorneys 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. 9. INDEMNIFICATION Attorneys agree to and shall indemnify and hold harmless the City, its officers, agents, employees, and representatives from liability for personal injury, damages, restitution, judicial or equitable relief to the extent caused by Attorneys' negligent or wrongful performance or conduct related to this Agreement. 10. CONFIDENTIALITY All information and documents shared with Attorneys as well as all work performed by Attorneys in connection with this Agreement should be treated as strictly confidential. Moreover, all communications between Attorneys and City shall be treated as protected by the attorney -client privilege and the attorney work product doctrine. Accordingly, information received by Attorneys from City should be kept in a secure place, and no information about this work may be disclosed to any third party without City's prior written approval. Attorneys shall provide materials directly to the City Attorney, Sonia Carvalho, or selected members of her office, as directed by the City Attorney. All such information and any written product in connection with Attorneys` retention under this Agreement, shall be marked as "PRIVILEGED AND CONFIDENTIAL / ATTORNEY -WORK PRODUCT" and shall be the property of the City Attorney's Office, and shall be returned/provided to the Office of the City Attorney with all copies upon the request of the City Attorney. 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 Attorneys, disclosed in a publicly available source; (c) is in rightful possession of the Attorneys without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Attorneys without reference to information disclosed by the City. 11. CONFLICT OF INTEREST CLAUSE a. Attorney cannot, without appropriate consents, represent any party if there is a conflict of interest with any of Attorney's other clients. In order to avoid conflicts of interest among clients, Attorney maintains an index of relevant names. In connection with this matter, Attorney has searched its index for the following names: (i) the City of Santa Ana and the City Council of the City of Santa Ana as client(s), (ii) Santa Ana Citizens for Responsible Development as an adverse party, and (iii) AC 2525 Main, LLC and the Discovery Science Center of Orange County as co-defendants. Please advise us, at or before the time you return the signed copy of this letter, if you know of any other individuals or entities which may be involved in this matter. In #292120 2 5 G -5 addition, please inform us at once if you learn in the future of other persons or entities who may be involved so we can make a conflict of interest search with respect to them. b. Conflicts Waiver. In undertaking this representation, Attorney's objective is to represent City to the best of its ability without forfeiting the continuing representation of Attorney's general clients. One purpose of this agreement, therefore, is to avoid Attorney's disqualification from representing clients which it represents on a more general basis or which it regularly represents in particular matters or controversies. Given the limited nature of Attorney's representation of the City in this matter, there are certain conditions to the engagement which Attorney would like to explain to the City and to which Attorney would like to secure the City's approval and consent. Attorney is a large law firm which has represented, and continues to represent, many different corporate and individual clients with various interests in numerous industries. It is possible that, during the time Attorney is representing the City's interests in this matter, the City may become involved in transactions and/or disputes in which the City's interests are adverse to those of one of Attorney's present or future clients. C. In addition, as discussed, the following is a list of active matters where in Attorney (though not necessarily the specific counsel who will represent the City in this matter) represents clients who are currently adverse to the City, both in non -litigation and litigation matters (the "Active Adverse Matters"): (i) City of Laguna Woods: Any and all current and future (to be filed) litigation concerning homeless issues including but not limited to case Nos. USDC Case. No. 8:18- cv00155 and SAVC 20-00069-DOC-KES and any future litigation brought by the City of Santa Ana against the City of Laguna Woods. (ii) Main Place Shopping Town LLC: Current and future entitlement efforts related to the Main Place Mall. (iii) Shea Properties: Current and future entitlement efforts related to various properties located in the City of Santa Ana. (iv) City of Laguna Beach: Any and all current and future (to be filed) litigation concerning homeless issues including but not limited to case Nos. USDC Case. No. 8:18- cv00155 and SAVC 20-00069-DOC-KES and any future litigation brought by the City of Santa Ana against the City of Laguna Beach. (v) Net Development Cc: Current and future entitlement efforts related to various properties located in the City of Santa Ana. (vi) St Anton Partners: Current and future entitlement efforts related to various properties located in the City of Santa Ana. (vii) City of Irvine: Any and all current and future (to be filed) litigation concerning homeless issues including but not limited to case Nos. USDC Case. No. 8:18-cv00155 and SAVC 20-00069-DOC-KES and any future litigation brought by the City of Santa Ana against the City of Irvine. #29212"4 25G-6 (viii) City of Dana Point: Any and all current and future (to be filed) litigation concerning homeless issues including but not limited to case Nos. USDC Case. No. 8:18- cv00155 and SAVC 20-00069-DOC-KES and any future litigation brought by the City of Santa Ana against the City of Dana Point. (ix) Michael Harrah/Caribou Industries/One Broadway Plaza: Current and future entitlement efforts related to various properties located in the City of Santa Ana. (x) Jamboree Housing Corporation: Current and future entitlement efforts related to various properties located in the City of Santa Ana. Therefore, as a specific condition to Attorney undertaking the City's representation, the City understands and agrees that Attorney may continue to represent the above -referenced clients in the Active Adverse Matters and/or may undertake in the future to represent existing or new clients in any matter that is not substantially related to our work for the City even if the interests of such clients in those other matters are directly adverse to the City's interests. Attorney agrees, however, that City's prospective consent to conflicting representation contained in the preceding sentence shall not apply in any instance where, as a result of Attorney's representation of City, Attorney has obtained proprietary or other confidential information of a nonpublic nature, that, if known to such other client, could be used in any such other matter by such client to the City's material disadvantage. City agrees to execute any other documents deemed reasonably necessary by Attorneys' clients to further effectuate City's waiver of such conflicts of interests. 12. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by facsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the Council City of Santa Ana 20 Civic Center Plaza (M-30) Santa Ana, California 92702-1988 Facsimile (714) 647-6956 With a Copy to: City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) I914310-Ton Santa Ana, California 92702 Facsimile (714) 647-6515 To Attorneys: Attention -John A. Ramirez, Esq. Rutan & Tucker LLP 611 Anton Boulevard, 14th Floor Costa Mesa, California 92626 Facsimile (714) 641-5100 #292120 n 5 ^ -7 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, 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. 13. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Attorneys, 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 Attorneys. 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 Attorneys 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 parties, which are not embodied herein. 14. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Attorneys, Attorneys 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 of this Agreement performed by City personnel or by other Attorneys retained by City. 15. TERMINATION This Agreement may be terminated by City at any time. In such event, Attorneys shall be entitled to receive and the City shall pay Attorneys compensation for all services performed by Attorneys prior to receipt of such notice of termination. Asa condition of such payment, Attorneys shall deliver to the City all files and records generated under this Agreement as of such date. Attorneys may terminate this agreement, subject to their obligation to provide written reasonable notice of at least thirty (30) days to arrange alternative representation. In such case, City agrees to secure new counsel as quickly as possible and to cooperate fully in the substitution of the new counsel as counsel of record in in the Actions. 16. DISCRIMINATION Attorneys shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender, gender expression, age, national origin, ancestry, military and veteran status, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other #29212A 25G-8 employment related activities. Attorneys affirm 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. BINDING ARBITRATION By signing this agreement, the Parties agree that if any dispute arises out of or relating to this Agreement, our relationship, or the services performed by us (including but not limited to any disputes regarding fees and expenses and any failure by City to pay such fees and expenses in accordance with this Agreement, claims of professional negligence, breach of contract or fiduciary duty, fraud or any claim based upon a statute), such dispute shall be resolved by submission to final and binding arbitration in Orange County, California, before a retired judge or justice of the California Superior Court of a higher court. The Parties agree that by agreeing to binding arbitration, they are waiving any right to a jury trial on any such dispute. If the Parties are unable to agree upon a retired judge or justice, each party will name one retired judge or justice and the two named persons will select a neutral judge or justice who will act as the sole arbitrator. Should the City elect to have any fee dispute arbitrated pursuant to non -binding arbitration under statutory or case law (including your rights to request mandatory fee arbitration under the rules of the Orange County Bar Association), then such non -binding arbitration shall determine only the issue of the amount of fees properly charged to the City. Any other claims or disputes between the Parties, including claims for professional negligence, shall remain subject to binding arbitration pursuant to this agreement. In the event of such an arbitration, the Parties shall be entitled to take discovery in accordance with the provisions of the California Code of Civil Procedure, but either party may request that the arbitrator limit the amount and scope of such discovery, and in determining whether to do so, the arbitrator shall balance the need for the discovery against the Parties' mutual desire to resolve disputes expeditiously and inexpensively. 19. MISCELLANEOUS PROVISIONS 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. 20. COUNTERPARTS; SIGNATURES This Agreement may be executed in counterparts, secured via facsimile transmission or otherwise, each of which shall be deemed to be an original. Photocopies of any executed counterpart shall have the same force and effect as an original. City further acknowledges that it has read and received a copy the full text Section 6148 of the California Business and Professions Code prior to signing this Agreement. 21. NO GUARANTEES City understands and acknowledges that there are certain risks and uncertainties in the pursuit of any matter for which Attorneys have been retained, that law is not an exact science, that Attorneys have made no representations or guarantees of success regarding the conclusion of any particular matter, and that all expressions relative thereto are matters of #29212v4 2 5 G -9 Attorneys' opinion only. In other words, Attorneys make no representations or guarantees of success regarding any matter. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ATTEST: DAISY PEREZ, CMC Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney BylQJJd w'�_� Laura A. Rossini Senior Assistant City Attorney RECOMMENDED FOR APPROVAL: S�TLt- � jPA —Cit�ONIA R. CARVALHO `Vy Attorney CITY OF SANTA ANA KRISTINE RIDGE City Manager RUTAN & TUCKER LLP an Name: Title: #29212v4 25G-10 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2020 TITLE: APPROVE A SOLE SOURCE PURCHASE ORDER TO THE NATIONAL FITNESS CAMPAIGN, LLC (NFC) FOR THE PURCHASE OF A NFC FITNESS COURT AT DELHI AND ROSITA PARKS FOR AN AMOUNT NOT TO EXCEED $218,130 TO BE FUNDED BY THE GENERAL FUND /s/Kristine Ridge CITY MANAGER CLERK OF COUNCIL USE ONLY: F-ITUNT1.07iirs, ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ ,K•�►nl►tri�.ic•� FILE NUMBER RECOMMENDED ACTION Authorize the City Manager to execute a sole source purchase order to the National Fitness Campaign, LLC (NFC) for a NFC Fitness Court at Delhi and Rosita Parks for an amount not to exceed $218,130, funded by the General Fund, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION On February 4, 2019, the City of Santa Ana submitted a grant application to the National Fitness Campaign, LLC (NFC) to build five fitness courts at Jerome Park, El Salvador Park, Delhi Park, Rosita Park, and Civic Center Plaza of the Flags. On March 15, 2019, the City of Santa Ana received five $30,000 grants from NFC to participate as a Model City in the 2019 National Fitness Campaign. Approval of the multi -site application was based on the City of Santa Ana's commitment to free health and fitness options and development of stakeholder consensus. On June 4, 2019, the City Council adopted a resolution accepting the 2019 NFC grant of $30,000 per sight and agreeing to endeavor to provide $90,000 per site to fund the remaining purchase price of the equipment plus the cost of installation at five City sites (Jerome Park, Delhi Park, El Salvador Park, Memorial Park, and Rosita Park). The Fitness Court is a 32' x 35' outdoor bodyweight circuit training system that supports 28 simultaneous users on 30 separate pieces of equipment that are grouped into seven stations. The 7-movement, 7-minute system provides a full -body workout to people of all ability levels. The integrated system includes a sports floor to simulate the indoor gym exercise and steel bodyweight training wall provides users with many exercise combinations. 29A-1 Approve Sole Source Purchase Order for Purchase of NFC Fitness Court March 3, 2019 Page 2 The Fitness Court is supported by "National Campaign Resources." This is a digital ecosystem that includes a mobile app, the Campaign's social media support team, promotional materials, and programming to assist public agencies in building support for fit living in community spaces. No other vendor, distributor or organization sells this system. The fitness court must be acquired from the National Fitness Campaign, LLC. The City held a ribbon cutting ceremony for the first outdoor fitness court installation at Jerome Park on December 14, 2019. The next fitness court installations are scheduled for Delhi and Rosita Parks by the end of the current fiscal year. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Strategic Plan Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #6 (focus projects and programs on improving the health and wellness of all residents). FISCAL IMPACT The total cost for the Fitness Court with the $60,000 grant included is $218,130 (Exhibit 1). Funds are budgeted and available in the following account and fiscal year: Fiscal Accounting Fund Accounting Unit, Amount Year Unit -Account # Description Account Description FY 19- 01113250- General Fund PRCSA-Park Facilities $218,130 20 66220 Im rovements Other Than Building APPROVED AS TO FUNDS AND ACCOUNT: Lisa Rudloff Kathryn Downs, CPA Executive Director Executive Director Parks, Recreation, and Community Finance and Management Services Agency Services Agency Exhibit: 1. Quote 29A-2 A ur.nm A NATIONAL FITNESS CAMPAIGN E%C�4R1 QUOTE City of Santa Ana 20 Civic Center Plaza Parks, Recreation and Community Services Agency, M23 SANTA ANA CA 92701 USA Description Fitness Court and National Campaign Resources - Includes Official Installation Kit 2020 National Grant Funding Award Date National Fitness Feb 6, 2020 Campaign LLC Expiry For all questions Aug 4, 2020 regarding this quote, contact: info@nfchq.com Quote Number Q U-0411 Quantity Unit Price Tax Amount USD 2.00 128,000.00 9.25% 256,000.00 2.00 (30,000.00) 9.25% (60,000.00) Freight, Packing and Insurance for shipment 2.00 2,000.00 Tax 4,000.00 Exem pt Terms 1.PAYMENTTERMS Subtotal TOTAL CALIFORNIA9.25% 200,000.00 18,130.00 TOTAL USD 218,130.00 Purchaser will pay Seller 100% of the Purchase Price within 30 days of the Delivery Date. Purchaser is responsible for payment of shipping costs, including packing, insurance and freight. These payment terms will apply unless other approved payment terms have been agreed to by both parties. 2. TAX EXEMPTION Registered Office: PO Box 2367, San Francisco, CA, 94126, USA. 29A-3 This quoted total is based upon Purchaser's tax exempt status, for which verifying documentation must be provided to Seller. If Purchaser is not tax exempt, sales tax will be applied before Purchase Price is to be considered final or binding. Registered Office: PO Box 2367, San Francisco, CA, 94126, USA. 29A-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2020 TITLE: ADOPT A RESOLUTION DECLARING CITY - OWNED PROPERTY AT 203-205 W. CIVIC CENTER DRIVE (YMCA BUILDING) AS SURPLUS LAND AND DIRECTING THE CITY MANAGER TO COMPLY WITH REQUIREMENTS OF GOVERNMENT CODE 54220 FOR SALE OF SURPLUS LAND /s/Kristine CITY MANAGER CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 11' Reading ❑ Ordinance on 2" ° Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO I�I���l�1�l:3ga RECOMMENDED ACTION Adopt a resolution declaring City -owned property located at 203-205 W Civic Center Drive as surplus land and direct the City Manager to comply with the requirements of Government Code 54220 et seq. for the sale of surplus land. DISCUSSION The City owns real property located at 203-205 W Civic Center Drive, commonly known as the YMCA building. A map that details its exact location is attached (Exhibit 2)The YMCA building was purchased by the City in 1992. The building has been vacant since that time and has been in serious disrepair due to age and vandalism. Recent efforts have been taken to remediate several outstanding issues, such as asbestos clean-up and the placement of security cameras at the site. Over the years, the City has made several attempts to solicit proposals for the site, but the substantial City subsidy required by developers and end users has been an issue. To bring the building up to current City codes, there would be an anticipated investment of up to $5 million dollars for seismic retrofit, fire suppression, electrical/plumbing to current code, and other structural improvements. SURPLUS LANDS ACT The Surplus Land Act requires all local agencies to prioritize affordable housing, as well as parks and open space, when disposing of surplus land. New legislation, which took effect on January 1, 2020, requires that before a local agency take any action to dispose of land, the land must be declared either "surplus land" or "exempt surplus land," as supported by written findings. Furthermore, although the City has its own Disposition Policy, section 54221(b)(1) of the California Government Code requires that the land be declared "surplus land" or "exempt surplus land", before a local agency may take any action to dispose of it consistent with an agency's policies or procedures. 55A-1 203-205 W Civic Center Drive (YMCA Building) Surplus Land Resolution March 3, 2020 Page 2 Upon the City's determination that the YMCA property is surplus land, the procedures set forth in Government Code Section 54220 et seq. must be followed. Those procedures require the City to offer the sale or lease of surplus land to certain public entities for a period of 60 days, as follows: 1. For the purpose of developing low- and moderate -income housing, a written notice of availability of the surplus land shall be sent to any "local public entity" as defined in Health and Safety Code Section 50079 within whose jurisdiction the surplus land is located and to "Housing Sponsors" that have notified the California Department of Housing and Community Development ("HCD") of their interest in surplus land. Local public entities to be notified include the City of Santa Ana Housing Authority. 2. For open -space purposes, a written notice of availability of the surplus land shall be sent to the City of Santa Ana Parks and Recreation Agency, the County of Orange OC Parks, the State Resources Agency or any agency that may succeed to its powers. 3. For the purpose of use by a school district for school facilities construction or open -space purposes, a written notice of availability of the surplus land shall be sent to the Santa Ana Unified School District. If the City receives a letter of interest from any of the above entities, then the City would enter into good faith negotiations concerning the price and terms of the sale with that entity for a period of 90 days. If the price or terms cannot be agreed upon after 90 days (or if no entity gives notice of interest), the City may sell the surplus land without further regard to the surplus land procedures. Any agreement memorializing the terms of a proposed sale of the YMCA site would be brought to the City Council for future consideration. IMPACTS ON CURRENT PROJECTS In February 2018, the City released a Request for Qualifications and Development Concepts for the renovation and reuse of the former YMCA Building. The RFP was sent directly to over 100 developers, including over 15 affordable housing developers, and was posted on the City's PlanetBids system for all interested parties to bid on. Four proposals were received in April 2018 for this solicitation. At the September 3, 2019 City Council meeting, the City Council authorized the negotiation of a Disposition and Development Agreement (DDA) for the renovation and reuse of the YMCA land. The new Assembly Bill revises Government Code Section 54234, to state "if a local agency, as of September 30, 2019, had entered into an exclusive negotiating agreement or legally binding agreement to dispose of land, the new provisions of the Act imposed by AB 1486 will not apply to the transaction provided the land is sold by December 31, 2022." Because the City is still in negotiations and has not entered into a formal agreement for the YMCA land, it must comply with the new provisions in the Surplus Lands Act by adopting a resolution (Exhibit 1) declaring the land surplus and again making it available to the entities listed above. If the price or terms cannot be agreed upon in a good faith negotiation period, the land may be 55A-2 203-205 W Civic Center Drive (YMCA Building) Surplus Land Resolution March 3, 2020 Page 3 disposed of without further regard to surplus land procedures. This would enable the City to continue its negotiations with Caribou Industries. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City 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 fiscal impact associated with this action. Steven A. Mendoza Executive Director Community Development Agency Exhibit: 1. Resolution 2. Map of property 55A-3 RESOLUTION NO. 2020- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA DECLARING CITY -OWNED PROPERTY LOCATED AT 203-205 W. CIVIC CENTER DRIVE, AS SURPLUS LAND AND DIRECTING THE CITY MANAGER TO FOLLOW THE PROCEDURES SET FORTH IN THE SURPLUS LAND ACT, CALIFORNIA GOVERNMENT CODE SECTION 54220, ET SEQ., AS AMENDED ON JANUARY 1, 2020, FOR THE SALE OF SURPLUS LAND 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. City of Santa Ana (the "City") owns the real property commonly known as the YMCA (the 'Property") located at 203-205 W. Civic Center Drive, consisting of 27,331 square feet (0.63 acres), including a vacant 44,468 square foot building that was constructed in 1921, APN# 005- 184-25, zoned SP3, and listed on the National Register of Historic Places in 1993 and to the Santa Ana Register of Historic Properties in 2001 (Landmark designation); and B. The Property was constructed in 1921 and was operated as a YMCA until its closing in 1989; and C. The Property was acquired by the City of Santa Ana in 1992. D. The Property has remained vacant since the closure of the YMCA and has been in serious disrepair due to age and vandalism over time; and E. Over the years, the City has made several attempts to market/entertain proposals for the site, but the substantial City subsidy required by developers and end users has been an issue. To bring the building up to current City codes, there would be an anticipated investment of up to $5 million dollars for seismic retrofit, fire suppression, electrical/plumbing to current code, and other structural improvements; and F. The sale proceeds and property tax generated may provide funding to enhance City services, and the future development of the Property Resolution No. 2020-XXX Page 1 of 3 55A-4 would eliminate blight and promote neighborhood livability and sustainability. Section 2. The City Council hereby finds and declares that the Property is no longer necessary for the City's use and is therefore surplus land as defined in California Government Code section 54221, based on the true and correct written findings found in Section 1, incorporated herein by this reference. Section 3. The City Council hereby authorizes the City Manager to send written notices of availability of the Property for sale, to negotiate the terms of a proposed sale of the Property with an interested public entity or, if none, another interested party, and to otherwise follow the procedures of the Surplus Land Act, California Government Code section 54220, et seq., as amended on January 1, 2020, as applicable to a proposed sale of the Property. Section 4. Any proposed agreement for the sale of the Property shall be subject to the approval of the City Council. Section 5. The sale of the Property as surplus is exempt from environmental review under the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines section 15312 (Surplus Government Property Sales). However, if development was proposed on the Property by a subsequent buyer, then that development would be reviewed under CEQA. 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 , 2020. APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Ryan . id-g�ie Assistant City Attorney Resolution No. 2020-XXX Page 2 of 3 Miguel A. Pulido Mayor 55A-5 AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, DAISY GOMEZ, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2020-XXX to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana Resolution No. 2020-XXX Page 3 of 3 y EXHIBIT 2 ATTACHMENT 2 MAP OF PROPERTY YMCA-203-205 West Civic Center Drive The site is a 27,331 square foot (approximately 0.63 acres) rectangular parcel on the North side of Civic Center Drive between Broadway and Sycamore Street (Assessor's map below). 0.866 AC. a s y p c n A IM 46 is° O O R 7 — E i II7' S JACOB ROSS e At C 04ENT SPI G '$ w 1 !� A y I 0.637 AC. A [ ? I4 v E r, s59.u" LCIVIC CENTER DRIVE CftfIIR+CJf S TREE T 55A-7 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2020 TITLE ADOPT A RESOLUTION APPROVING A ONE-YEAR EXTENSION OF THE VARIANCE NO. 2017-09 AND TENTATIVE TRACT MAP NO. 2017-03 FOR THE TOM'S TRUCKS DEVELOPMENT TO BE LOCATED AT 1008 EAST FOURTH STREET /s/Kristine Ridge CITY MANAGER CLERK OF COUNCIL USE ONLY: _••e• ❑ As Recommended ❑ As Amended ❑ Ordinance on 1 s' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ rK•�rnutn�.ic. FILE NUMBER RECOMMENDED ACTION Adopt a resolution approving a one-year extension of Variance No. 2017-09 and Tentative Tract Map No. 2017-03 to February 20, 2021. DISCUSSION On February 20, 2018, the City Council affirmed the Planning Commission's decision to approve a variance and tentative tract map for the Tom's Truck residential development, which will consist of 33 townhome units and 84 single-family units at 1008 East Fourth Street. Specifically, the variance was to allow a reduction in parking and in the maximum allowable building ratios for a single-family development within the Transit Zoning Code boundaries, while the tentative map was to allow the subdivision of the site into an 84-unit small lot subdivision. Due to lengthy and unexpected soil remediation efforts needed on the premises, the applicant has been unable to move forward with the permitting for the residential development. Pursuant to City of Santa Ana Municipal Code Section 41-647, where construction does not commence, these types of entitlements expire after two (2) years unless the applicant applies for, and the City Council approves, an extension. The applicant submitted an extension request to the Planning Division on January 29, 2020, prior to the expiration of the entitlements. Upon completion of the remediation efforts, the applicant will be working with a housing developer and the necessary team of experts, including an architect and project manager, to prepare construction plans for submittal into Building plan check. The applicant expects to submit into Building plan check by the end of the year and start construction early next year. Since the applicant is planning to move forward with the project, the Planning Division recommends that the entitlements for the development be extended by a period of one year to February 20, 2021. 55B-1 Extension of Variance No. 2017-09 and Tentative Tract Map No. 2017-03 1008 East Fourth Street March 3, 2020 Page 2 ENVIRONMENTAL REVIEW In accordance with the California Environmental Quality Act (CEQA), the approval of the time extension is exempt from CEQA per Section 15061 (b)(3). This determination has been made as it has been determined that the proposed action will not cause a significant effect on the environment. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #3 - Economic Development, Objective #2 (create new opportunities for business/job growth and encourage private development through new General Plan and Zoning Ordinance policies), and Objective #4 (continue to pursue objectives that shape downtown Santa Ana into a thriving, culturally diverse, shopping, dining, and entertainment destination). FISCAL IMPACT There is no fiscal impact associated with this action. Minh Thai Executive Director Planning and Building Agency VF:vf vtreports\Toms Trucks extension. cc Exhibit: 1. Resolution 55B-2 LS 3.3.20 RESOLUTION NO. 2020-xx A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA FOR A ONE YEAR EXTENSION OF VARIANCE NO. 2017-09 AND TENTATIVE TRACT MAP NO. 2017-03 FOR THE TOM'S TRUCKS RESIDENTIAL DEVELOPMENT TO BE LOCATED AT 1008 EAST FOURTH 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. In February 2018, the City Council affirmed the Planning Commission's recommendation to approve Variance No. 2017-09 and Tentative Tract Map No. 2017-03 to allow the development of the 133-unit Tom's Trucks residential project at 1008 East Fourth Street. B. Due to the need to complete unanticipated soil remediation on the premises, the applicant has been unable to move forward with the development and is requesting an extension for the variance and tentative map. It is the Planning Division's policy to recommend no more than one year extensions, mainly in an effort to encourage the construction of previously approved projects. C. Upon completion of the remediation efforts, the applicant will be working with a housing developer and the necessary team of experts, including an architect and project manager, to prepare construction plans for submittal into Building plan check. The applicant expects to submit into Building plan check by the end of the year and start construction early next year. D. Pursuant to City of Santa Ana Municipal Code Section 41-647, where construction does not commence, these types of entitlements expire after two (2) years unless the applicant applies for, and the City Council approves, an extension. E. The extension request came before the City Council on March 3, 2020. F. In accordance with the California Environmental Quality Act (CEQA) and the CEQA Guidelines, the extension for this project is exempt pursuant to Section 15061(b)(3). This determination has been made as it has been determined that the proposed action does not have the potential to cause a significant effect on the environment. 55B-3 Resolution No. 2020-xx Page 1 of 3 Section 2. Variance No. 2017-09 and Tentative Tract Map No. 2017-03 are each hereby extended for a period of one (1) year from the date of the original City Council approval to February of 2021. This decision is based upon the evidence submitted, which includes, but is not limited to, the Request for Council Action dated March 3, 2020, and exhibits attached thereto, and any public testimony, all of which are incorporated herein by this reference. Section 3. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this _ day of March, 2020. APPROVED AS TO FORM: Sonia R. Carvalho City Attorney ByA Lisa Storck Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN NOT PRESENT: Councilmembers Councilmembers Miguel A. Pulido Mayor Resolution No. 2020-xx Page2of 355 B-4 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, DAISY GOMEZ, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2020- to be the original resolution adopted by the City Council of the City of Santa Ana on 2020. Date: Clerk of the Council City of Santa Ana Resolution No. 2020-xx 55B-5 Page 3 of 3 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2020 TITLE: APPROVE THE FISCAL YEAR 2020-2022 COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM FOR A TOTAL AMOUNT OF $7,560,549 /s/Kristine Ridge CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s' Reading ❑ Ordinance on 2i1 Reading ❑ Implementing Resolution ❑ Set Public Hearing For ,K•�►nl►tr».ic•� FILE NUMBER Approve the proposed Fiscal Year 2020-2021 Community Development Block Grant Program in the estimated amount of $7,560,549, subject to adjustment upon notification of the Grant Year 2020 and 2021 award from the United States Department of Housing and Urban Development. The estimated amount of $7,560,549 includes $5,701,154 from the Grant Year 2020 allocation, re -allocation of prior year program funds in the amount of $1,004,222, and $855,173 from 2021 Grant Year allocation for public services from the United States Department of Housing and Urban Development. 2. Direct the City Attorney to finalize and authorize the City Manager to execute memorandums of understanding with various city departments awarded funds as part of the approved Community Development Block Grant Program for a term beginning July 1, 2020 through June 30, 2021, subject to non -substantive changes approved by the City Manager and City Attorney. 3. Direct the City Attorney to finalize and authorize the City Manager to execute agreements with non-profit organizations awarded funds as part of the approved Community Development Block Grant Program for a two-year term beginning July 1, 2020 through June 30, 2022, subject to non -substantive changes approved by the City Manager and City Attorney. Funding for Public Services approved for FY 2020-2021 will be renewed at the same award amount for 2021-2022 subject to review of the non-profit organization's performance. 60A-1 Fiscal Year 2020 — 2022 CDBG Program March 3, 2020 Page 2 City Department 2020-2021 Award Community Development Agency -Administration of the CDBG Program. Proposed $1,080,230 funding amount calculated based on 20% administrative cap less Fair Housing amount Orange County Fair Housing Council Inc. —Provides fair housing education, landlord tenant counseling and enforcement services to combat housing discrimination and city $60,000 administrative support for the residents of the City of Santa Ana. A commitment to further fair housing is a requirement of CDBG funding_ Code Enforcement — Community Preservation Services $800,000 Economic Development - Funds are used to make award grants of up to $5,000 to $72 926 eligible microenterprise businesses in the City_ Library Services - Library Renovation $700,000 Parks, Recreation, and Community Services Agency $1,400,000 Planning and Building Agency — Neighborhood Sponsored Improvements to address property maintenance and life safety violations, which contribute to the visual blight and general $50,000 decline of an area_ Housi ng — To address rehabilitation of single-family and multi -family housing as well as a $1,687,047 homebu er down payment assistance program TOTAL $5,850,203 Public Service Organizations 2020-2022 Award AIDS Services Foundation of OC dba Radiant Health Centers — HIV Care Services $60,000 America on Track — Brighter Futures for Children of Prisoners $60,000 Boys & Girls Club of Santa Ana — College Bound $75,000 Community Action Partnerships of OC — Economic Empowerment, Your Money Your Goals $60,000 Community Health Initiative Orange County - Provides outreach, education, enrollment, and case management services to vulnerable populations $60,000 Community Legal Aid SoCal - Provides free, holistic legal assistance to survivors of domestic violence $75,000 Community SeniorSery — Lunch Cafe $60,000 Community SeniorSery — Home Delivery Meals $60,000 Delhi Center/Public Law Center - Family Economic Success Initiative Program $80,000 Delhi Center - Teens Engaged in Learning and Leadership Program $75,000 Girl's Inc. of Orange County — Literacy Lab $77,500 Human Options — Assisting Domestic Violence Victims $60,000 Lutheran Social Services of So. Cal. — Victims intervention Program $60,000 Nati's House (dba Neutral Ground) - Gang Prevention $60,000 Nati's House (dba Neutral Ground)— Summer Night Lights $60,000 60A-2 Fiscal Year 2020 — 2022 CDBG Program March 3, 2020 Page 3 OC Children's Therapeutic Arts Center — CARR Neighborhood crime Prevention and Intervention $60,000 OC Children's Therapeutic Arts Center — WILLARD Neighborhood crime Prevention and Intervention $60,000 Public Law Center - Affordable Housing & Homelessness Prevention Program $80,000 Pure Game — STAR Sports $60,000 Relampago del Cielo — Folklonco Dance Instruction $84,650 Taller San Jose Hope Builders — Business Applications $60,000 The Cambodian Family — Plan Ahead Youth Program $68,196 WISEPIace — Steps to Independence $90,000 Women's Journey Foundation — Next Generation, Emotional Intelligence Through the Arts $85,000 Young Men's Christian Association of OC — Financial Assistance Program $80,000 TOTAL $1,710,346 Info Tho —Ali, mn it In rhn m no m_ Rornmrrw d-d Arfin C nA-,- FEBRUARY 18, 2020 CITY COUNCIL MEETING UPDATE Following City Council direction, staff have reallocated our limited CDBG funds to maximize the arts and cultural programming in the city. Specifically, staff are now recommending to reduce funding for Relampago Del Cielo and Women's Journey Foundation by $30,000 each and reallocate those funds to Nati's House - Summer Night Lights for a total new award of $60,000. Staff communicated with both organizations and both understand that City Council wants to maximize the impact of these limited funds for arts and cultural programming in the city. In regards to the funding request for Second Chance Orange County, staff will be recommending to the Community Redevelopment and Housing Commission to fund their organization with $30,000 annually in Emergency Solutions Grant funds renewable for up to a five-year period. COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION RECOMMENDATION At its Regular Meeting on January 22, 2020, the Community Redevelopment and Housing Commission (CRHC) recommended approval of the nonprofit public services for the Fiscal Year 2020-2022 Community Development Block Grant Program to the City Council by a vote of 5:0 (Garcia absent). DISCUSSION The City of Santa Ana receives an annual allocation of Community Development Block Grant (CDBG) Program funds from the United States Department of Housing and Urban Developmeni (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 affordable housing, street improvements, park and public facilities improvements, economic development, code enforcement, and public services. The City's CDBG expected allocation for Grant Year (GY) 2020, Fiscal Year (FY) 2020-2021, is $5,701,154. 60A-3 Fiscal Year 2020 — 2022 CDBG Program March 3, 2020 Page 4 The proposed FY 2020-2021 CDBG Program and Funding Plan consists of the (CRHC) funding recommendations for nonprofit public service programs and staff's funding recommendations for Administration and Planning, Code Enforcement, Economic Development, City Capital Improvements, and Housing. The CDBG Program and Funding Plan can be summarized in two general categories: 1) Capital Projects/CDBG Program Funding Plan; and 2) Public Services. A summary of the process and allocation for the FY 2020-2021 CDBG Program is provided below for both general categories. Capital Projects/CDBG Program Funding Plan The FY 2020-2021 CDBG Program Funding Plan includes the funding allocations for administration, fair housing, code enforcement in low- to moderate- income areas of the city to address health and safety violations, economic development to provide small business grants, nonprofit public services, city capital improvement projects and multi -family rehabilitation loans as described in the CDBG FY 2020-2021 Program Funding Plan (Exhibit 1). The CDBG allowable cap of 20 percent for administration and fair housing services is estimated to be $1,140,230 for FY 2020-2021. Administration is necessary for staffing, compliance, reporting, fiscal management, and monitoring of the entire program. Fair housing is necessary due to CDBG requirements that the City affirmatively further fair housing. Three new city capital improvement projects are recommended for funding, which include the following: 1) $1.4 million for Park and Library improvents in CDBG eligible areas. 2) $700,000 for renovation of the Santa Ana Main Library with new windows throughout the building. The project will involve the demolition of existing windows, and the purchase and installation of new windows and weatherproofing. 3) $50,000 for Neighborhood -Sponsored Improvements to assist residential areas most affected by gang graffiti and vandalism by installation of virtually maintenance free commercial grade artificial ivy. The proposed programs and projects have been determined to be of highest priority and need by the Executive Directors of the Parks, Recreation and Community Services Agency, Public Works Agency, Planning and Building Agency and Community Development Agency, following the City's internal application process and the competitive public service allocation process described below. Public Services A maximum of 15 percent of CDBG funding, plus anticipated program income not to exceed 15% for FY 2020-2022 ($1,710,346), may be used for public services. For FY 2020-2022, the City is providing the entire estimated public service allocation to nonprofit organizations for programs with an emphasis on crime prevention, intervention, and/or suppression for children, youth, and families, economic development, tenant services assistance and programs, health services, and senior services (Exhibit 2). Following approval by the City Council on October 15, 2019, the City solicited applications from nonprofit organizations from November 4, 2019 to December 16, 2019. Marketing of the CDBG application process and nonprofit outreach efforts included a press release, use of social media via the City's Facebook page, a -mails to a nonprofit organization distribution list, mailings to nonprofits, e-mails to the City's Constant Contact distribution list, and a dedicated CDBG webpage on the City's website. 60A-4 Fiscal Year 2020 — 2022 CDBG Program March 3, 2020 Page 5 A total of 32 applications were received from 27 nonprofit organizations (four non -profits submitted two applications and one nonprofit submitted three applications). The applications were submitted to the Community Redevelopment and Housing Commission (CRHC) Ad Hoc Committee for review and rating based on the following criteria: COMMUNITY NEEDS 1. Did organization identify nature of • Applicant identifies the nature of the program and the program and demonstrated demonstrated need for targeted group. = 10 Pts. community need for target • Applicant doesn't identify the nature of the program and did population group (i.e. youth, not demonstrated need for targeted group. = 5 Pts. seniors, disabled) Q.8, 12, 14, 15 • Applicant only identifies State or National data = 0 Pts. 10 Points 2. Did applicant meet a specific City • Applicant met a specific city strategic plan goal and strategic plan goal and strategy strategy and was correlation to proposed program was and stated correlation to clea r= 10 Pts. proposed program? Q. 10 • Applicant met a specific city strategic plan goal and 10 Points strategy but did not clearly state the correlation to proposed program = 5 Pts. • Applicant did not meet any plan goal or strategy = 0 Pts. CAPACITY TO PROVIDE PUBLIC SERVICES 3. Did the organization provide a Organization provided summary and staff listing of all admin summary and listing of the and program to fully execute proposed program = 20 Pts. admin and program Organization did not provide both summary and staff listing staff? Q. 20 and Staff Listing of all admin and program staff = 10 Pts. 20 Points Organization provided summary and staff listing of all admin and program staff but does not have the capacity to fully execute proposed program = 5 Pts. • Organization did not provide summary and staff listing of all Admin and program = 0 Pts. EXPERIENCE 4. Years of experience providing 5 or more years of experience providing proposed program = the proposed program? Q. 9 10 Pts. 10 Points 2-4 years of experience providing proposed program = 5 Pts. • 1 year of experience providing proposed program = 3 Pts. • 0 years of experience providing proposed program = 0 Pts. 5. Does the applicant have Applicant has experience administering CDBG and Federal experience administering Grant programs = 10 Pts. CDBG and/or any other Applicant only has experience administering CDBG Federal Grants? Q.19 programs = 5 Pts. 10 Points Applicant has no experience administering CDBG and/or Federal Grant programs = 0 Pts. 60A-5 Fiscal Year 2020 — 2022 CDBG Program March 3, 2020 Page 6 6. Did organization meet prior • Applicant met 90% annual goals and expended all grant year's performance and funds 3 of 3 years = 10 Pts. expenditure goals. (Staff • Applicant met 90% annual goals and/or expended all grant spreadsheet) funds for 2 of 3 years = 5Pts. 10 Points • Applicant met 90% annual goals and/or expended all grant funds for 1 of 3 years = 3 Pts. • Applicant did not meet annual goal and/or expended all grant funds for 3 years = 0 Pts. EFFECTIVE & EFFICIENT USE OF FUNDS 7. Are the majority of • 100% to 80% of program participants are City residents = 10 unduplicated participants from Pts. Santa Ana? Q.1 • 79.9% to 60% of program participants are City residents = 5 (Q1 a/Q1=%) Pts. 10 Points • 59.9% to 30% of program participants are City residents = 0 Pts. 8. Did the organization describe the Measurable performance outcomes with qualitatively and measurable performance quantitatively tracking = 10 Pts. outcomes and how outcomes will Measurable performance outcomes but no qualitatively and be qualitatively and quantitatively quantitatively tracking = 5 Pts. tracked? Q.17, 18 No measurable performance outcomes and qualitatively and 10 Points quantitatively tracking = 0 Pts. 9. Does the organization have Organization partners and/or collaborates with 3 or more active partnerships and/or community organizations = 10 Pts. collaborations in order to Organization partners and/or collaborates with 2 community effectively and efficiently carry organizations = 5 Pts. out proposed program? Q.16 Organization partners and/or collaborates with 1 community 10 Points organization = 1 Pts. • Organization partners and/or collaborates with 0 community organization = 0 Pts. Representatives from each organization were invited to present their proposed public service programs for funding consideration at two CRHC public hearings, on January 7, 2020 and January 9, 2020, held from 3:00 PM to 7:00 PM on both days. The CRHC Ad Hoc Committee finalized the application review and recommendations on January 15, 2020, and the funding recommendations are summarized in Exhibit 2. The recommended funding amounts for the non-profit organizations for a two-year contract period equals $1,710,346 from July 1, 2020 to June 30, 2022, with the exclusion of the Orange County Fair Housing Council Inc., which is funded out of program administration, as in previous years, and is not subject to the 15% public service cap. A brief summary of all 32 applications are shown in Exhibit 3. The CRHC, acting with assistance from City staff, made substantial improvements to the CDBG review process this year for our non-profit allocation in order to strengthen the process. Specifically, the commission formed an Ad Hoc Committee to revise the nonprofit CDBG application and scoring criteria matrix. Then, the Ad Hoc Committee and full commission adopted the following three improvements: Fiscal Year 2020 — 2022 CDBG Program March 3, 2020 Page 7 1. Adoption of a two-year non-profit CDBG application cycle. This improvement creates more certainty for the City's non-profit partners in regards to their funding. 2. Approval to have an Ad Hoc Committee review and score the non-profit CDBG applications on behalf of the commission and make funding recommendations to the entire commission which will then be recommended by the commission to the City Council. 3. Directed staff to facilitate a study session of the City's funding priorities and strategic plan goals after the Five -Year Consolidated Plan is completed. Once the City receives the actual CDBG allocations for FY 2020-2021 and FY 2021-2022 from HUD, the approved CDBG public service allocation will be increased or decreased in proportion to the actual grant allocation. Should the increase in funding be enough to fund additional nonprofits at the minimum funding level, funds will be allocated to the next highest scoring organization(s). Any remainder will be distributed to already high performing organizations in proportion to their actual grant allocation. Next Steps: If the FY 2020-2021 CDBG Program Funding Plan is approved, staff will prepare and execute memorandums of understanding with various City departments (Exhibit 4) for the period of July 1, 2020 through June 30, 2021 and agreements with nonprofit organizations (Exhibit 5 and 6) for the period of July 1, 2020 through June 30, 2022. All of the projects and programs are eligible for CDBG funding and are in alignment with the City's Five -Year Consolidated Plan, Strategic Plan and Capital Improvement Program. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's effort to meet the following Goals, Objectives, and Strategies: Goal #1 - Community Safety, Objective #6 (enhance Public Safety integration, communications and community outreach), Strategy F (The Santa Ana Police Department will collaborate with the Orange County Probation Department, Orange County Healthcare Agency caseworkers, business community, and associated non-profit organizations to assist in re-entry of recently released offenders into the community); Goal #2 - Youth, Education, Recreation, Objective #2 (expand youth programing), Strategy A (focus resources on quality youth engagement, civic awareness, enrichment and education programs (i.e. youth camping trips) and expand after -school programs during out -of -school hours at the library and community centers, and Strategy B (expand the youth sports program so that youth recreational opportunities are established year-round); Objective #4 (partner with groups and organizations to promote education, senior services, job training and development for all Santa Ana residents), Strategy A (partner with The California Endowment, Santa Ana College, Chapman University, UCI, CSUF, and other institutions of higher education to design career pathway programs that support priority workforce industries (Retail, healthcare, manufacturing, renewable energies) that results in faster reemployment of Santa Ana's residents; 60A-7 Fiscal Year 2020 — 2022 CDBG Program March 3, 2020 Page 8 Goal #3 - Economic Development, Objective #5 (leverage private investment that results in tax base expansion and job creation citywide), Strategy C (develop a knowledge base to foster economic development by actively partnering with non-profit organizations); Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #4 (support neighborhood vitality and livability), Strategy D (implement new Neighborhood Improvement Initiatives focusing on residential areas that have been adversely affected by disinvestment and decline. Program and services from a variety of resources will be utilized to achieve positive and sustainable improvements), and Objective #6 (focus projects and programs on improving the health and wellness of all residents), Strategy C (integrate a variety of health and wellness programs into existing programming at each of the city's community/recreation centers (e.g. Develop equitable health access points)). FISCAL IMPACT Funds will be budgeted and available in the Community Development Block Grant account (nos. 13518780, 13518782, and 13518783) upon execution of a grant agreement between the City and HUD and adoption of the FY 2020-21 annual budget. It is anticipated that the CDBG allocation will be expended as follows: Fiscal Year Grant Accounting Unit- Fund Accounting Unit, Amount Year Account # Description Account Description Community FY 2020-21 2020 13518780-various Development CDBG Administration $1,140,230 Block Grant Community FY 2020-21 2020 13518782-various Development CDBG Housing 1,687,047 Block Grant Community FY 2020-21 2020 13518783-various Development CDBG Programs 2,873,877 Block Grant 2015- Community FY 2020-21 2018 13518783-various Development CDBG Programs 1,004,222 Block Grant Total for FY 20-21 $6,705,376 If the City Council approves the two-year agreements with the non-profit organizations per Recommended Action 3, upon the execution of a grant agreement between the City and HUD and the adoption of the FY 2021-22 annual budget, funds will be available and expended as follows: Fiscal Year Grant Accounting Fund Accounting Unit, Amount Year Unit -Account # Description Account Description Community FY 2021-22 2021 13518783-various Development CDBG Programs $ 855,173 Block Grant Total for FY 21-22 $ 855,173 Total for FY 20-22 1 $7,560,549 .1 m Fiscal Year 2020 — 2022 CDBG Program March 3, 2020 Page 9 APPROVED AS TO FUNDS AND ACCOUNTS: Steven A. Mendoza Kathryn Downs, CPA Executive Director Executive Director Community Development Agency Finance and Management Services Agency Exhibits: 1. CDBG Program Funding Plan and Program Summaries 2. CRHC Nonprofit Funding Recommendations 3. Summary of Nonprofit Applications 4. City Agency Memorandum of Understanding Template 5. CDBG and Nonprofit Agreement Template 6. Santa Ana Work Center and Nonprofit Memorandum of Understanding Template 60A-9 EXHIBIT 1 PROGRAM ADMINISTRATION & PLANNING Administration and Planning Fair Housing CODE ENFORCEMENT Community Preservation Code Enforcement Community Preservation Legal Services ECONOMIC DEVELOPMENT Nov, Business Start -Up NONPROFIT PUBLIC SERVICES`(Fy2o.2i & 21.22) AIDS Services Fdn OC dba Radiant Health Centers America on Track Boys & Gids Club of Santa Ana Charitable Ventures of OC (Summer Night Lights) Community Action Partnership of Orange County Community Healtit Initiative Orange County Community Legal Aid Wal (Domestic Violence Prevention Project) Community SenlDlSew Inc. (Lunch Cafe) Community SemorSery Inc. (Home Delivered Meals) Court Appointed Special Advocates (CASA) Delhi Center/PLC (Family Economic Success Initiative) Delhi Center (Teens Engaged in Learning and Leadership) Delhi CentedALBI Heritage Museum of Orange County (Borrowing Barn) Heritage Museum of Orange County(Museums Inspiring Change) Gids Inc of Orange County(Umracy Lab) Human Options Lutheran Social Services of So, Cal. Naps House (dba Neutral Ground) SNL Nati's House (dba Neutral Ground) Gang Prevention OC Children's Therapeutic Ads Center (CARR) OC Children's Therapeutic Ads Center (Willard) Orange County United Way Public Law Center (Consumer) Public Law Center (Housing) Pure Game Relampago del Cielo Santa Ana Xtreme Second Chance Orange County Taller San Jose Hope Builders The Cambodian Family WISEPiace APPROVED FY 19-20 REQUESTED FY 20-21 RECOMMENDED FY 20-21 $ 1,140,230 $ 1,146,230 $ 1,140,230 1,080.230 1,080,230 1,080,230 60.000 66,000 60,000 $ 790,664 $ 800,000 $ 800,000 765,664 775,000 775,000 25,000 25,000 25,000 $ 72,926 $ 72,926 $ 72,926 72,926 72,926 72,926 $ 872,543 $ 1,926,886 ' $ 1,710,346 - 148,500 60,000 45,000 75,000 60,000 40,000 75,000 75,000 30,000 - - 30,000 37,500 60,000 30,000 50,000 B0,000 38,000 44,036 75,000 - 48,000 60,000 - 48,000 60,000 30,000 - - 93,205 149,183 80,000 68,461 73,085 75,000 61,557 62.537 - 31,320 34,516 - - 30,000 - - 60,000 77,500 - 38.299 60,000 30.000 75,000 60.000 60,000 60,000 60,000 - 75,000 60,000 - 50,000 60,000 70.000 75,000 60.000 66,000 30,000 30.000 50,000 BQ000 - 33,000 60,000 - 69,300 8050 33.000 - 50,000 60,000 - 30,000 75,000 60,000 45.000 75,000 68,196 - 45.000 90,000 Women's Journey Foundation - 74,430 85,000 Young Man's Christian Association of Orange County 30,0D0 37,500 80,000 CITY CAPITAL IMPROVEMENTS $ 3,635,323 $ 10,671,150 $ 2,150,000 Library(FY 20-21 Library Renovation) 1,435,000 5,226,500 700,000 Residential Street and Intrastructural Improvements 2.150.323 3,994,650 - Park Improvements 1,400,000 1,400,000 Neighborhood Sponsored Improvements 50,000 50,000 50,000 HOUSING $ 635,000 $ 1,681,207 IS 1,687,047 Single Family Rehab -City 300,000 - Multi Family Rehab 175,000 1.681,207 1,687,047 Homebuyer Down Payment Assistance 160,000 - TOTAL $ 7,146,686 $ 16,298,399 $ 7,560,549 CDBG ALLOCATION 2020-2021 $ 5,701,154 $ 5,701,154 $ 5,701,154 CDBG ANTICIPATED PROGRAM INCOME $ 275,039 $ - CDBG RE -ALLOCATION -AVAILABLE $ 1,170,493 $ 1,004,222 CDBG ALLOCATION 2021-2022 (15% Public Services) $ 1,170,493 $ 855,173 SURPLUS/(DEFICIT) $ - $ (10.597.245) $ - ADMINISTRATION CAP 20%OF ALLOCATION $ 1.140,230 $ 1,140.230 $ 1,140,231 ADMINISTRATION PROPOSED $ 1.140,230 $ 1,146.230 $ 1,140,231 SURPLUS/(DEFICIT) $ (0) $ (6,000) $ (0) PUBLIC SERVICE CAP 16% OF ALLOCATION PLUS PROGRAM INCOME NOT TO EXCEED 15% $ 872,543 $ 855.173 $ 855,173 PUBLIC SERVICE PROPOSED $ 872.543 $ 855.173 $ 855,173 SURPLUS/(DEFICIT) $ - $ - $ - 60A-10 EXHIBIT 1 Co3 CDDo 0 D CD CD N' N <D N ti n 3 CD o N 1 O @ y Oo 3 OM>00c� 0w-u0 m 0 m m a" O D o- 0 0 0 0 3 0 _= o -0 3 `� v c cn 0 m '0 co cn CD c= Gi �' ,m., CD n m m m Z �' Z OCD O W m m Oi n = N o 0 p j 0 CD o = (D CD �+ 3 a m o' m 0 o�� oN� D0 m N n 0 0= CD y O CCD O' O y = CDO C CD t� E;2 = O m m n ID O N S 3 m= O = m m = 00 n CJ1 CO y y N 00 m C O O = C < O O N y BCD N O � �ca� C C (D O y O 0 m 0 m CDC CD 0 v n w O m _ O" N ID O O _=N m 0 CD n 0 �; m <' 3 j3 CD v m m= y CD m . m m v 4 y nt0 N O T7 D ti. 0 nay _ D nog y CD y m n m W C O -. <D y y CDN T N = y O C O O O � a w v mCD N m CD y '4� a n n O O = G7 `< W 60 y m = EL M CD C. n = �0 a (D 0 n CD 0 m 3 n �. m y y_ h m y p� C m y N O CD m fD y � N m N O =0a0m a� m m ^= G) o CD — o D y CD (D _ a 0 @ 1 3 .g m O O m, - t� O m< 3 •2` O = c=s -n c=i m 3 0 c - °� `� v c cn m o y. 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LDm m - \o 2(/ -- - ` \ } CD \ \f■ / k CD k/ \ §§* \ /\ \ ; CDCD 0 CD CD E §[\ (_§ { *-o § . \ ° 0 § \\/ _ !7k CD / 0 < .. . 6 \}) CD \ � w 2CD / J\ \ 60A. 1 5 % / 2 I: *:P.II:l10 CRHC Nonprofit Funding Recommendations CDBG FY 2020-21 and FY 2021-22 Organization Name Program Applicant Current l yearfunding Applicant requested 22year funding CRHC Recommended2- year Funding AIDS Services Foundation OC DBA Radiant Health Centers - HIV rare Services $148,500.00 $60,000.00 America on Track- $45,000.00 $150,000.00 $60,000.00 Boys &Girls Club- $40,000.00 $150,000.00 $75,000.00 Community Action Partnership of Orange County- $30,000.00 $75,000.00 $60,000.00 Community Health Initiative Orange County- $30,000.00 $100,000.00 $60,000.00 Community Legal AidSoCal- Domestic Vinlemm $38,000.00 $88,072.00 $75,000.00 Community SentorServ- $96,000.00 $60,000.00 Community Sell - Home Del vered Meek $96,000.00 $60,000.00 DelhiCenterlPublicLawCenter- Family roanom c Success initiative $93,205.00 $68,461.00 $298.366.00 $146,170.00 $80,000.00 $75,000.00 Delhi Center- Girl's Inc of Orange County- $120.000.00 $77,500.00 Human Options- Assistim, Domestic Violence Victims $76,597.00 $60,000.00 Lutheran Social Services of Southern California - $30,000.00 $60,000.00 $150,000.00 $60,000.00 $60,000.00 $60,000.00 Nati'sHouse- NatisHouse- $150,000.00 $60,000.00 Orange CountyChildren'sTherapeuticMsCenter- $70,000.00 $100.000.00 $150,000.00 $60,000.00 $60,000.00 Orange County Children's Therapeutic Arts Center- Willard Npial-horhood Crime Prevention and Intervention Public Law Center- $30,000.00 $100,000.00 $80,000.00 Pure Game- STAR Smuts $66,000.00 $60,000.00 RelampagodelCielo- $138,600.00 $84,650.00 Taller San Jose Hope Builders - $30,000.00 $150,000.00 $60,000.00 The Cambodian Family- Plan Ahnnal Youth Pracuarn $45,000.00 $150,000.00 $68,196.00 WisePlace- $90,000.00 $90,005.00 Women's Journey Foundation- $148,860.00 $85,000.00 YMCAofOC- $30,000.00 $75,000.00 $80,000.00 DelhiCenterlALBI- $61,557.00 $125,074.00 $0.00 Heritage Museum of Orange County- The BouoWnQ Barn $31,320.00 $69,032.00 $0.00 Heritage Museum of Orange County- Museums Inspiring Change $60,000.00 $0.00 Orange County united Way- $132,000.00 $0.00 Be Its Ana Xtreme- q.nta Ana Xtreme Softball $66,000.00 $0.00 Second Chance Orange County - More Second Channp,,q $50,000.00 $120,000.00 $0.00 Total CRHC 2-year Funding Recommendation $1,710,346.00 Orange County Fair Housing Council Inc. $66.000.00 1 $60,000.00 $60,000.00 103:ILy11111c3 Summary of Community Development Block Grant Nonprofit Applications FY 2020-2022 AIDS Services Foundation Orange County DBA Radiant Health Centers HIV Care Services Radiant Health Centers (RHC) will provide low-income residents living with HIV in the City of Santa Ana with wraparound HIV care services. Participants will receive the support and resources needed to remain in medical care, maintain their health, and achieve viral suppression. Proposed number to be served: 680 Currently Funded: N/A CRHC Recommendation: $60,000 Strategic Plan Alignment: 5 Funding Request: $148 500 America On Track Brighter Futures for Children of Prisoners Children of prisoners deserve the chance to discover a brighter future, which is why America On Track provides them with trained, caring mentors, STEM workshops, a "College is For Me Too!' camp, free books, and special outings, as well as nutrition seminars and wraparound services for the families. Proposed number to be served: 600 Currently Funded: $45,000 CRHC Recommendation: $60,000 Strategic Plan Alignment: 2, 2a Funding Request: $150 000 Boys & Girls Club of Santa Ana College Bound College Bound provides at -risk Santa Ana teens with academic instruction and mentors to help graduate high school on time, prepare for secondary education, technical school or military and set career goals; this also prevents teens from engaging in activities that could otherwise derail their path. Proposed number to be served: 200 Currently Funded: $40,000 CRHC Recommendation: $75,000 Strategic Plan Alignment: 2, 4a Funding Request: $150 000 Community Action Partnership of Orange County Economic Empowerment - Your Money, Your Goals Economic empowerment services for low-income adults and youth in and around Santa Ana; workshops include Your Money Your Goals curriculum, which covers banking, spending plans, and money management by providing tools for participants to develop habits to increase their financial wellbeing. Proposed number to be served: 200 Currently Funded: $30,000 CRHC Recommendation: $60,000 Strategic Plan Alignment: 3, 5c Funding Request: $75,000 60A-17 103:1111:31111111c3 Summary of Community Development Block Grant Nonprofit Applications FY 2020-2022 Community Health Initiative of Orange County Community Health Access Program CHIOC helps City of Santa Ana residents to access health and social service programs by providing outreach, education, enrollment, and case management services to vulnerable populations. We strive to ensure that clients acquire, retain, and utilize community resources effectively. Proposed number to be served:2891 Currently Funded: $30,000 CRHC Recommendation: $60,000 Strategic Plan Alignment: 5, 6d Funding Request: $100,000 Community Legal Aid SoCal Domestic Violence Prevention Project Community Legal Aid SoCal (CLA SoCal) will provide free, holistic legal assistance to Santa Ana survivors of domestic violence to help them escape abuse and break the cycle of violence. Priority is given to service in the areas of family law, immigration, and healthcare advocacy. Proposed number to be served: 72 Currently Funded: $38,000 CRHC Recommendation: $75,000 Strategic Plan Alignment: 1, 6f Funding Request: $88,072 Community SeniorSery dba Meals on Wheels Orange County Lunch Cafe The purpose of the Lunch Cafe Program is to provide nutritious lunch meals for seniors in Santa Ana who are isolated, low income, and frail. The CDBG funds will help offset the raw food costs for providing meals for senior participants living in Santa Ana. Proposed number to be served: 1,000 Currently Funded: N/A CRHC Recommendation: $60,000 Strategic Plan Alignment: 5, 6e Funding Request: $96 000 Community SeniorSery dba Meals on Wheels Orange County Home Delivered Meals Program The Home Delivered Meals Program provides nutritional meals on a donation -basis to seniors, who are frail, isolated, have limited mobility, and limited social support. The CDBG funds will help offset the raw food costs for providing meals to homebound seniors residing in Santa Ana. Proposed number to be served: 300 Currently Funded: N/A CRHC Recommendation: $60,000 Strategic Plan Alignment: 5, 6e Funding Request: $96,000 Delhi Center I Public Law Center (previously Delhi / CIELO) Family Economic Success Initiative (FES) A collaborative case management strategy to help low-income families fill vocational, educational, and financial service gaps, so they can make better decisions to earn more, keep more of what they earn, and move up the economic ladder. Proposed number to be served:250 Currently Funded: $93,205 CRHC Recommendation: $80,000 Strategic Plan Alignment: 2, 2a Funding Request: $298,366 60A-18 2 I�:I:II:l��e3 Summary of Community Development Block Grant Nonprofit Applications FY 2020-2022 Delhi Center Teens Engaged in Learning and Leadership (TELL) A leadership development program that trains teens to take an active role in designing and implementing educational and team building activities in their community that teach younger children about gang prevention, problem solving, conflict resolution, avoiding risk and making safe choices. Proposed number to be served:250 Currently Funded: $68,461 CRHC Recommendation: $75,000 Strategic Plan Alignment: 2, 2a Funding Request: $146 170 Girl's Inc of Orange County Literacy Lab Literacy Lab ensures that 120 elementary school girls per year in Santa Ana reach grade level reading by fourth grade. Small group reading with mentors and educators, engaging activities, a summer camp, and family literacy nights build a love of reading and a strong educational foundation. Proposed number to be served: 240 Currently Funded: N/A CRHC Recommendation: $77,500 Strategic Plan Alignment: 2, 2a Funding Request: $120,000 Human Options Assisting Domestic Violence Victims The project will provide intensive case management services to Santa Ana residents who self report domestic violence or who. are referred by the Domestic Violence Response Team. Case management services will include safety planning, assessment of needs and linkages to needed resources. Proposed number to be served: 80 Currently Funded: N/A CRHC Recommendation: $60,000 Strategic Plan Alignment: 1, 1d Funding Request: $76,597 Lutheran Social Services of Southern California (LSSSC) Victims Intervention Program (VIP) The Victims Intervention Project (VIP) will provide women who are victims of crime with evidence -based recovery services — direct mental health services, rental assistance, hotel/motel vouchers, intensive case management, transportation, life skills training and other supportive services. Proposed number to be served: 150 Currently Funded: $30,000 CRHC Recommendation: $60,000 Strategic Plan Alignment: 5, 4d Funding Request: $150,000 60A-19 l*3:ii ]N [c] Summary of Community Development Block Grant Nonprofit Applications FY 2020-2022 Nati's House Neutral Ground Gang Prevention Nati's House Neutral Ground provides after school programming and mentoring to youth: focusing on violence prevention, gang intervention, restorative practices, mentoring, and drug and alcohol prevention. Neutral Ground also provides street outreach and programming for parents and community. Proposed number to be served: 150 Currently Funded: N/A CRHC Recommendation: $60,000 Strategic Plan Alignment: 2, 2a Funding Request: $150 000 Nati's House Neutral Ground Summer Night Lights Nati's House Neutral Ground provides summer night lights for 40 nights during the summer. Parks and recreation centers will be open late so that families can enjoy safe spaces, meet neighbors, find new opportunities and resources, and create relationships with the City and County agencies that serve them.. Proposed number to be served: 160 Currently Funded: N/A CRHC Recommendation: $60,000 Strategic Plan Alignment: 2, 2a Funding Request: $150,000 Orange County Children's Therapeutic Arts Center OCCTAC/CARR Neighborhood Crime Prevention & Intervention Program Orange County Children's Therapeutic Arts Center (OCCTAC) proposes to start our Crime Prevention & Intervention Program at CARR Intermediate School and neighborhood to provide youth and their parents life -changing opportunities through: 1) Arts Enrichment, 2)Therapeutic Arts, 3)Family Counseling, 4)Parenting, & 5)Academic Support. Proposed number to be served: 200 Currently Funded: N/A CRHC Recommendation: $60,000 Strategic Plan Alignment: 2, 2a Funding Request: $100 000 Orange County Children's Therapeutic Arts Center OCCTAC/Willard Neighborhood Crime Prevention & Intervention Program Orange County Children's Therapeutic Arts Center (OCCTAC) proposes to continue our Willard Crime Prevention & Intervention Program to provide youth and their parents life - changing opportunities through: 1) Arts enrichment, 2)Therapeutic Arts, 3)Family Counseling, 4)Parenting, & 5)Academic Support. Proposed number to be served: 550 Currently Funded: $70,000 CRHC Recommendation: $60,000 Strategic Plan Alignment: 2, 2a Funding Request: $150 000 60A-20 4 103:I1i:3111111c] Summary of Community Development Block Grant Nonprofit Applications FY 2020-2022 Public Law Center Santa Ana Community Development Housing Program PLC provides legal assistance and education to Santa Ana residents who are experiencing housing instability and reside in poorly operated and maintained mobile home parks and apartments. PLC supports neighborhood vitality and livability through advocacy for affordable and habitable dwellings.150 Proposed number to be served: 120 Currently Funded: $30,000 CRHC Recommendation: $80,000 Strategic Plan Alignment 5 4d Funding Request: $100 000 Pure Game STAR Sports We provide schools a sports -based youth development program. We focus on creating a safe, positive, inclusive environment allowing a higher number of kids to participate and experience our character education and leadership curriculum. Our curriculum helps children make better quality life choices. Proposed number to be served: 3,800 Currently Funded: N/A CRHC Recommendation: $60,000 Strategic Plan Alignment 2 2b Funding Request: $66,000 Relampago del Cielo Folklorico Dance Instruction The program provides folkloric instruction to children and youth in low -to -moderate -income families. They will learn various dances from Mexico, showcasing their learning at civic and community events. The program creates a place where children and youth are healthy, safe and ready to learn. Proposed number to be served: 236 Currently Funded: N/A CRHC Recommendation: $84,650 Strategic Plan Alignment 2 2a Funding Request: $138 600 Taller San Jose Hope Builders Equipping Disadvantaged Youth for Careers With CDBG funding, Hope Builders' job training program will create economic opportunities for 50 disadvantaged Santa Ana youth by providing them hard skills training in construction, healthcare, business applications, and information technology, and life skills needed for enduring success. Proposed number to be served: 50 Currently Funded: 75 CRHC Recommendation: $60,000 Strategic Plan Alignment: 2 4a Funding Request: $150,000 5 60A-21 1204:ILy111c3 Summary of Community Development Block Grant Nonprofit Applications FY 2020-2022 The Cambodian Family Plan Ahead Youth Program PAYP will help Santa Ana's low-income youth and parents from immigrant families thrive in the areas of academics, leadership and parenting skills so that they are able to be engaged in more positive afterschool activities, stay off streets and avoid destructive or gang related activity. Proposed number to be served: 228 Currently Funded: $45,000 CRHC Recommendation: $68,196 Strategic Plan Alignment: 2, 2a Funding Request: $150 000 WISEPIace Steps of Independence WISEPIace transitional housing, trauma -informed care and wrap -around services provide the tools to move women from homeless to safe and affordable housing, reuniting them with their children and families. Proposed number to be served: 60 Currently Funded: N/A CRHC Recommendation: $90,000 Strategic Plan Alignment: 5, 4d Funding Request: $90,000 Women's Journey Foundation Next Generation: Emotional Intelligence Through the Arts The Next Generation: Emotional Intelligence Through the Arts Program is designed to expose K-12 grade participants to the development of emotional intelligence through the integration and direct engagement with the performing arts. The program culminates with a final performance for their community. Proposed number to be served: 520 Currently Funded: N/A CRHC Recommendation: $85,000 Strategic Plan Alignment: 2, 2a Funding Request: $148 860 Young Men's Christian Association of Orange County YMCA Financial Assistance Program - Santa Ana Programs We would like to request CDBG funding to provide Financial Assistance to low income, very low, and extremely low-income participants wishing to enroll in our Santa Ana Sports & Aquatics programs (soccer, swim, dodgeball, fitness programs) and Santa Ana After -School Programs. Proposed number to be served: 210 Currently Funded: $30,000 CRHC Recommendation: $80,000 Strategic Plan Alignment: 3, 5c Funding Request: $75,000 60A-22 6 103:11:311111c3 Summary of Community Development Block Grant Nonprofit Applications FY 2020-2022 Orange County Fair Housing Council, Inc (dba Fair Housing Council of Orange County) Santa Ana Fair Housing Education, Counseling and Enforcement Serving both housing consumers and providers with fair housing education, counseling and enforcement services to combat housing discrimination, combined with landlord -tenant counseling. Fair housing activities assist Santa Ana in certifying to HUD that it is "affirmatively furthering fair housing". Proposed number to be served: 10,050 Currently Funded: 60,000 CRHC Recommendation: $120,000 Strategic Plan Alignment: 5, 4d Funding Request: $132,000 *Fair Housing project funding is from Administrative cap and does not impact Public Service funding. Delhi CenterlALBI School Break Enrichment Program Enrichment Day Camps offered during three school -break periods for 125 children, providing instruction in performing arts, social emotional skill development activities that build resiliency, and parent workshops with take-home family assignments that increase family bonding. Proposed number to be served: 250 Currently Funded: $61,557 CRHC Recommendation: $0 Strategic Plan Alignment: 2 2a Funding Request: $125,074 Heritage Museum of Orange County The Borrowing Barn The Borrowing Barn will serve as a tool library, time bank, seed library, and DIY educational/community center for the surrounding area. Proposed number to be served: 200 Currently Funded: $31,320 CRHC Recommendation: $0 Strategic Plan Alignment: 3 5c Funding Request: $69,032 Heritage Museum of Orange County Museums Inspiring Change Through the MIC mentorship program, we seek to combat a broader, institutional lack of diversity in the field of museum careers. We will expose SAUSD youth to current industry leaders, potential career paths, and basic museum principles to build their knowledge of and access to relevant opportunities. Proposed number to be served: 140 Currently Funded: N/A CRHC Recommendation: $0 Strategic Plan Alignment: 2, 2a Funding Request: $60,000 7 60A-23 I0:C11-211 e3 Summary of Community Development Block Grant Nonprofit Applications FY 2020-2022 Orange County United Way SparkPoint OC SparkPoint OC financial empowerment centers serve low-income, housing insecure or homeless individuals and families at five Orange County locations, including Santa Ana. Clients meet monthly with a financial coach to develop plans that increase income, reduce debt, improve credit, and build assets. Proposed number to be served: 120 Currently Funded: N/A CRHC Recommendation: $0 Strategic Plan Alignment: 3, 5c Funding Request: $132 000 Santa Ana Xtreme Santa Ana Xtreme Softball Develop female athletes as future civic leaders. Teach self-discipline, hard teamwork & important life lessons through softball. Providing a healthy activity & training in an atmosphere of community participtation. Help them with college recruitment/admission and financial scholarships. Proposed number to be served: 90 Currently Funded: N/A CRHC Recommendation: $0 Strategic Plan Alignment: 2, 2b Funding Request: $66 000 Second Chance Orange County More Second Chances SCOC provides individualized services to Santa Ana residents recovering from alcohol and substance abuse, often homeless, who seek stable, sustainable lives. Residents seeking an end to dependency will gain career training, mentoring, support in job placement and ongoing follow-up. Proposed number to be served: 120 Currently Funded: $50,000 CRHC Recommendation: $0 Strategic Plan Alignment: 1, 6f Funding Request: $120 000 60A-24 8 MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF SANTA ANA AND CITY AGENCY FOR USE OF COMMUNITY DEVELOPMENT BLOCK GRANT FUNDS This Memorandum of Understanding is hereby made and entered into this 1 st day of July, 2020, 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 CITY AGENCY of the City, ("SUBRECIPIENT"). RECITALS: A. The CITY, as an entitlement recipient and grantee of the United States Department of Housing and Urban Development ("HUD") Community Development Block Grant ("CDBG") Entitlement Program, Catalog of Federal Domestic Assistance (CFDA) Number 14.218, and Federal Award Identification Number (FAIN) B-20-MC-06-0508 , desires to enter this Agreement with the SUBRECIPIENT for the expenditure of CDBG funds in accordance with Title 24, Part 570 of Code of Federal Regulations 24 CFR 570.000, et seq. ("CDBG REGS'). B. CITY has applied for and received CDBG funds from HUD pursuant to Title I of the Housing and Community Development Act of 1974, Public Law 93-383, as amended ("ACT"). C. The SUBRECIPIENT has been selected by the CITY to receive CDBG funds and administer such financial assistance; and to provide the services described in Exhibit A, in accordance with the schedule of performance included therein, hereinafter referred to as "said program". SUBRECIPIENT represents that it is qualified and willing to operate said program and certifies that the activities carried out with funds provided under this Agreement will meet one or more of the CDBG program's National Objectives (24 CFR Part 570.208). D. SUBRECIPIENT agrees that it will adhere to the performance measurements and outcomes as indicated on Exhibit A (Schedule of Performance). Failure to follow the measurements and meet the stated outcomes may constitute breach of contract that could result in termination of this Agreement or serve as reason for the City to recapture the grant funds awarded to SUBRECIPIENT pursuant to this Agreement. WHEREFORE, it is agreed by and between the parties that the foregoing Recitals are a substantive part of this Agreement and the following terms and conditions are approved and together with all exhibits and attachments hereto, shall constitute the entire Agreement between the CITY and SUBRECIPIENT: I. SUBRECH'IENT'S OBLIGATIONS A. Representations and Warranties. (a) Authority. SUBRECIPIENT is in good standing and authorized to do business under the laws of the State of California. SUBRECIPIENT has full right, power and lawful authority to accept the funding hereunder and to undertake all obligations as provided herein and the execution, performance and delivery of this Agreement by SUBRECIPIENT has been fully authorized by all requisite actions on the part of SUBRECIPIENT. (b) Experience. SUBRECIPIENT is a qualified provider of the services to be provided hereunder. 60A-25 (c) Familiarity With Services Required. By executing this Agreement, SUBRECIPIENT warrants that (i) it has thoroughly investigated and considered the services to be performed and provided hereunder, (ii) it has carefully considered how the services should be performed, and (iii) it fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. (d) No Conflict. To the best of SUBRECIPIENT'S knowledge, SUBRECIPIENT'S execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which SUBRECIPIENT is a party or by which it is bound. (e) No Bankruptcy. SUBRECIPIENT is not the subject of any current or threatened bankruptcy proceeding. (f) No Pending Legal Proceedings. SUBRECIPIENT is not the subject of a current or threatened litigation that would or may materially affect SUBRECIPIENT'S performance under this Agreement. (g) Application Veracity. All provisions of and information provided in SUBRECIPIENT'S application for funding submitted to CITY including any exhibits are true and correct in all material respects. (h) No Pending Investigation. SUBRECIPIENT is not aware that it is the subject of any current or threatened criminal or civil action investigation by any public agency, including without limitation a police agency or prosecuting authority, that would relate to affect performance of the Agreement or provision of services hereunder. B. Amount of Grant/Term and Guarterly Disbursement. The amount granted to SUBRECIPIENT is $00,000 ("CDBG FUNDS"), for the term of July 1, 2020 through June 30, 2021 for - -----------Name of Project-----. Such funds shall be expended by SUBRECIPIENT on or before June 30, 2022. The Term of this Agreement may be extended by a writing executed by the City Manager, or his or her designee, and the City Attorney. The CDBG FUNDS shall be disbursed by CITY to SUBRECIPIENT on a quarterly basis subject to and upon receipt and approval of a complete quarterly activity report from SUBRECIPIENT, with the final payment subject to the satisfaction of the condition precedent of submittal of complete reporting information due on or before July 15 of the applicable funding year, as hereinafter more fully set forth. SUBRECIPIENT shall be obligated to perform such duties as would normally extend beyond the term, including, but not limited to, obligations with respect to indemnification, audits, reporting, data retention/reporting, and accounting. Failure to provide any of the required documentation and reporting will cause CITY to withhold all or a portion of a request for reimbursement, or return the entire reimbursement package to SUBRECIPIENT, until such documentation and reporting has been received and approved by CITY. The CITY reserves the right to reduce the grant application if the CITY's fiscal monitoring indicates that SUBRECIPIENT's rate of expenditure will result in unspent funds at the end of the program year. Amendments in the grant allocation will be made after consultation with SUBRECIPIENT. C. Use of Funds. SUBRECIPIENT agrees to use all federal funds provided by CITY to SUBRECIPIENT pursuant to this Agreement to operate said program, as set forth in "Exhibit A," attached hereto and by this reference incorporated herein. SUBRECIPIENT'S failure to perform as required may, in addition to other remedies set forth in this Agreement, result in readjustment of the amount of funds CITY is otherwise obligated to pay to SUBRECfPlENT hereunder. Z• � � •. D. Allowable Costs. SUBRECIPIENT agrees to complete said program on or before June 30, 2---, and to use said funds to pay for necessary and reasonable costs allowable under the federal law and regulations to operate said program. Said amounts shall include, but not be limited to, wages, administrative costs, and employee benefits comparable to other similarly situated employees, and indirect costs. Other allowable program costs are detailed in the budget, as set forth in "Exhibit B," attached hereto and by this reference incorporated herein. SUBRECIPIENT shall use all income received from said funds only for the same purposes for which said funds may be expended pursuant to the terms and conditions of this Agreement. SUBRECIPIENT has the ability to adjust line item amounts in the budget with the written approval of the CPFY's Executive Director of the Community Development Agency, or designee, so long as the total budget amount does not increase. Pursuant to 2 CFR §200.331(a)(4), the Indirect Cost Rate for the SUBRECIPIENT's award shall be an approved federally recognized indirect cost rate negotiated between the SUBRECIPIENT and the Federal government, or, if no such rate exists, the de minimis indirect cost rate as defined in 2 CFR §200.414(b) Indirect (F&A) costs. For this agreement, the de minimis indirect cost rate of _% will apply. E. Licensing. SUBRECIPIENT agrees to obtain and maintain all required licenses, registrations, accreditation and inspections from all agencies governing its operations. SUBRECIPIENT shall ensure that its staff shall also obtain and maintain all required licenses, registrations, accreditation and inspections from all agencies governing SUBRECIPIENI"s operations hereunder. Such licensing requirements include obtaining a City business license, as applicable. F. Zoning. SUBRECIPIENT agrees that any facility/property used in furtherance of said program shall be specifically zoned and permitted for such use(s) and activity(ies). Should SUBRECIP ENT fail to have the required land entitlement and/or permits, thus violating any local, state or federal rules and regulations relating thereto, SUBRECIPIENT shall immediately make good -faith efforts to gain compliance with local, state or federal rules and regulations following written notification of said violation(s) from the CITY or other authorized citing agency. SUBRECIPIENT shall notify CITY immediately of any pending violations. Failure to notify CITY of pending violations, or to remedy such known violation(s) shall result in termination of grant funding hereunder. SUBRECIPIENT must make all corrections required to bring the facility/property into compliance with the law within sixty (60) days of notification of the violation(s); failure to gain compliance within such time shall result in termination of grant funding hereunder. G. Separation of Accounts. All funds received by SUBRECIPIENT from CITY pursuant to this Agreement shall be maintained in an account in a federally insured banking or savings and loan institution with record keeping of such accounts maintained pursuant to applicable 2 CFR 200.302 requirements. SUBRECIPIENT is not required to maintain separate depository accounts for CDBG FUNDS; provided however, the SUBRECIPIENT must be able to account for receipt, obligation and expenditure of CDBG FUNDS pursuant to applicable 2 CFR 200.302 requirements. H. Audit Report Requirements. SUBRECIPIENT agrees that if SUBRECIPIENT expends Seven Hundred Fifty Thousand Dollars ($750,000) or more in federal funds, SUBRECIPIENT shall have an annual audit conducted by a certified public accountant in accordance with the standards as set forth and published by the United States Office of Management and Budget. SUBRECIPIENT shall provide CITY with a copy of said audit by April 1 of the year following the program year in which this Agreement is executed. 60A-27 I. Record Keepin eportinQ. SUBRECIPIENT shall keep and maintain complete and adequate records and reports on program participants to determine their initial and continuing eligibility for the program services being provided to assist CITY in meeting and maintaining its record keeping responsibilities under the CDBG REGS, including the following: (1) Records a. Documentation evidencing program income requirements in conformity with 24 CFR 570.504(b((2)(i), (ii) and 24 CFR 570.503(b)(3) and 24 CFR 570.208(a)(2)(B) of the income level of persons and/or families participating in or benefiting by the SUBRECIPIENT program. b. Documentation of the number of persons and/or families participating in or benefiting by the SUBRECIPIENT program. c. Household information shall include number of persons, identification of head of household, race/ethnicity, and income verification of all household members ages 18 and over. d. Documentation of all CDBG FUNDS received from CITY. e. Documentation of expenses as identified in the Budget Proposal, including evidence of incurring the expense, invoices for goods or services, copies of any and all contracts or documentation pertaining to costs for subcontractors, plus all other invoices and proof of payment for which CDBG FUNDS were expended, and any payments therefor. f. Any such other related records as CITY shall reasonably require or as required to be maintained pursuant to the CDBG REGS. (2) Reports a. Payment Request. Concurrently with the submittal of each quarterly report, on or before the 15th day of October, January, April and July, SUBRECIPIENT shall submit both: an original invoice/request for reimbursement and true copies of invoices, receipts, canceled checks, bank statements, credit card statements, procurement documentation for goods or services, timesheets, payroll records, benefit statements, agreements, contracts or documentation pertaining to costs for subcontractors, and/or other documentation supporting and evidencing how the CDBG FUNDS have been expended during the applicable quarter. b. Quarterly Progress Report. SUBRECIPIENT agrees to keep records of all ethnic and racial statistics of persons and families benefited by SUBRECIPIENT in the performance of its obligations under this Agreement, including, but not limited to, the number of low and moderate income persons and households assisted in accordance with federal income limits, the number of female heads of households assisted, new program information and year-to-date program statistics on expenditures, caseload and activities. Failure to provide any of the required documentation and reporting will cause CITY to withhold all or a portion of a request for reimbursement, or return the entire reimbursement package to SUBRECIPIENT, until such documentation and reporting has been received and approved by CITY. J. Access to Records. CITY and the United States Government and their representatives or auditors shall have access for purposes of monitoring, auditing, and examining SUBRECIPIENT's activities and performance, to books, documents and papers, and the right to examine records of SUBRECIPIENT's subcontractors, bookkeepers and accountants, employees and participants in regard to Z� • said program. CITY and the United States Government and their representatives or auditors shall also schedule on -site monitoring at their discretion. Monitoring activities may also include, but are not limited to, questioning employees and participants in said program and entering any premises or any site in which any of the services or activities funded hereunder is conducted or in which any of the records of SUBRECIPIENT are kept. Nothing herein shall be construed to require access to any privileged or confidential information as set forth in federal or state law. K. Location of Records/Required Length of Record Keepine. All accounting records, reports, and evidence pertaining to all costs, expenses and the CDBG FUNDS of SUBRECIPIENT and all documents related to this Agreement shall be maintained and kept available at SUBRECIPIENT'S office or place of business for the duration of the Agreement and thereafter for five (5) years from the date of final payment under this Agreement. Records which relate to (a) complaints, claims, administrative proceedings or litigation arising out of the performance of this Agreement, or (b) costs and expenses of this Agreement to which CITY or any other governmental agency takes exception, shall be retained beyond the five (5) years until complete resolution or disposition of such appeals, litigation claims, or exceptions. In the event SUBRECIPIENT does not make the above -referenced documents available within the city of Santa Ana, California, SUBRECIPIENT agrees to pay all necessary and reasonable expenses incurred by CITY in conducting any audit at the location where said records and books of account are maintained. L. Compliance with Law/Program Income. SUBRECIPIENT acknowledges that the funds being provided by CITY for said program are received by CITY pursuant to the ACT as amended and that expenditures of these funds shall be in accordance with the ACT and all pertinent regulations issued by agencies of the federal government, including, but not limited to, all regulations found at Title 24 of the Code of Federal Regulations. Program income received by SUBRECIPIENT shall be returned to CITY unless otherwise provided for in this Agreement. SUBRECIPIENT agrees to comply fully with all federal, state and local laws and court orders applicable to its operation whether or not referred to in this Agreement. M. Debarment. To protect the public interest and ensure the integrity of Federal programs, CITY may only conduct business with responsible persons and may not make any award or permit any award to any party which is debarred or suspended or is otherwise excluded from or ineligible for participation in Federal assistance programs under Executive Order 12549, "Debarment and Suspension". See also 24 CFR 570.609. SUBRECIPIENT must review and sign Exhibit C "Debarment", which is attached hereto and incorporated herein by this reference. SUBRECIPIENT shall be in good standing, without suspension by the California Secretary of State, Franchise Tax Board and Internal Revenue Service. Any change in the corporate status or suspension of SUBRECIPIENT shall be reported immediately to CH Y. N. Confidentiality. Without prejudice to any other provisions of this Agreement, SUBRECIPIENT shall, where applicable, maintain the confidential nature of information provided to it concerning participants in accordance with the requirements of federal and state law. However, SUBRECIPIENT shall submit to CITY and or HUD or its representatives, all records requested, including audit, examinations, monitoring and verifications of reports submitted by SUBRECIPIENT, costs incurred and services rendered hereunder. O. Independent Contractor. SUBRECIPIENT agrees that the performance of obligations hereunder is rendered in its capacity as an independent contractor and that it is in no way an agency of CITY. P. Violation of Terms and Conditions. SUBRECIPIENT agrees that if SUBRECIPIENT violates any of the terms and conditions of this Agreement or any prior Agreement whereby CDBG funds were received by SUBRECIPIENT, or if SUBRECIPIENT reports inaccurately, or if on audit there is a I • disallowance of certain expenditures, SUBRECIPIENT agrees to remedy the acts or omissions causing the disallowance and repay CITY all amounts spent in violation thereof. If SUBRECIPIENT engaged in fraudulent activity to obtain and/or justify expenditure of the CDBG funds granted hereunder, SUBRECIPIENT shall be required to reimburse the CITY of all such funds that were obtained and/or spent under fraudulent circumstances. Q. Equipment. SUBRECIPIENT agrees to maintain a record for each item of non -expendable personal property acquired under the terms of this Agreement. Said record shall be made available to CITY upon request. The term "non -expendable personal property" shall include leased and purchased equipment. R. Prohibited Use. SUBRECIPIENT hereby certifies and agrees that it will not use funds provided through this Agreement to pay for entertainment, meals or gifts, or other prohibited uses. S. Lobbvine. SUBRECIPIENT certifies that it will comply with federal law (31 U.S.C. 1352) and regulations found at 24 CFR Part 87, which provide that no appropriated funds may be expended by the recipient of a federal contract, grant, loan or cooperative agreement to pay any person for influencing or attempting to influence an officer or employee of any agency, Member of Congress, or an officer or employee of a Member of Congress in connection with awarding of any federal contract, the making of any federal grant or loan, entering into any cooperative agreement and the extension, renewal, amendment or modification of any federal contract, grant, loan or cooperative agreement. SUBRECIPIENT shall sign a certification to that effect in a form as set forth in "Exhibit D," attached hereto and by this reference incorporated herein. SUBRECIPIENT shall submit said signed certification to CITY prior to performing any of its obligations under this Agreement and prior to any obligation arising on the part of CITY to pay any sums to SUBRECIPIENT under the terms and conditions of this Agreement. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit a "Disclosure Form to Report Lobbying," in accordance with its instructions (Exhibit D). SUBRECIPIENT shall require that the language of this certification be included in the award documents for all sub -awards at all tiers (including subcontractors, sub -grants, and contracts under grants, loans, and cooperative agreements), and agrees to take all actions necessary to ensure that all subrecipients shall similarly certify and disclose accordingly. T. Financial Interest. SUBRECIPIENT agrees that except for the use of CDBG funds to pay salaries and other related administrative or personnel costs, no persons who exercise or have exercised any function with respect to CDBG activities assisted under the terms of this Agreement, or who are in a position to participate in a decision -making process or gain inside information with regard to such activities, may obtain a financial interest or benefit from a CDBG-assisted activity of SUBRECIPIENT, either for themselves or those with whom they have family or business ties, during their tenure or for one year thereafter. This prohibition applies to any person who is an employee, agent, consultant, officer, or elected or appointed official of CITY, or of any designated public agency, or the SUBRECIPIENT. U. Labor Standards. The SUBRECIPIENT agrees to comply with the requirements of the Secretary of Labor in accordance with the Davis -Bacon Act as amended, the provisions of Contract Work Hours and Safety Standards Act (40 U.S.C. 327 of seq.) and all other applicable Federal, state and local laws and regulations pertaining to labor standards insofar as those acts apply to the performance of this Agreement. The SUBRECIPIENT agrees to comply with the Copeland Anti -Kick Back Act (18 U.S.C. 874 et seq.) and its implementing regulations of the U.S. Department of Labor at 29 CFR Part 5. The 60A-30 SUBRECIPIENT shall maintain documentation that demonstrates compliance with hour and wage requirements of this part. Such documentation shall be made available to the CITY for review upon request. SUBRECIPIENT agrees that, except with respect to the rehabilitation or construction of residential property containing less than eight (8) units, all contractors engaged under contracts in excess of $2,000.00 for construction, renovation or repair work financed in whole or in part with assistance provided under this contract, shall comply with Federal requirements adopted by the CITY pertaining to such contracts and with the applicable requirements of the regulations of the Department of Labor, under 29 CFR Parts 1, 3, 5 and 7 governing the payment of wages and ratio of apprentices and trainees to journey workers; provided that, if wage rates higher than those required under the regulations are imposed by state or local law, nothing hereunder is intended to relieve the SUBRECIPIENT of its obligation, if any, to require payment of the higher wage. The SUBRECIPIENT shall cause or require to be inserted in full, in all such contracts subject to such regulations, provisions meeting the requirements of this paragraph. V. Section 3 of the Housing and Urban Development Act of 1968. SUBRECIPIENT will make every effort to provide training opportunities for low -and moderate -income persons residing within the community where the construction project is located and contracts awarded to local businesses therein to the greatest extent feasible as required under the provisions of Section 3 of the Housing and Urban Development Act of 1968, the regulations set forth in 24 CFR 135, and all applicable rules and orders issued hereunder prior to the execution of this Agreement. Compliance with the foregoing requirements shall be a condition of the federal financial assistance provided under this Agreement and binding on the SUBRECIPIENT. Failure to fulfill these requirements shall subject the SUBRECIPIENT, its successors and designees, to those sanctions specified by the Agreement through which federal assistance is provided. The SUBRECIPIENT certifies and agrees that no contractual or other disability exists which would prevent compliance with these requirements. SUBRECIPIENT shall make every effort to ensure that all projects funded wholly or in part by CDBG funds shall provide equal employment opportunities for minorities and women. W. Drug Free Workplace. SUBRECIPIENT agrees to provide a drug -free work place and to execute a certification as set forth in "Exhibit E" attached hereto and incorporated herein by this reference. X. Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. The following requirements and standards must be complied with: 2 CFR Part 200 et al. SUBRECIPIENT shall procure all materials, property, or services in accordance with the requirements of 2 CFR 200.318-326. Y. Subpart K of 24 CFR 570. SUBRECIPIENT will cant' out its activities in compliance with the requirements of Subpart K of 24 CFR 570, however SUBRECIPIENT does not assume the CITY's environmental responsibilities or the responsibility for initiating the environmental review process under 24 CFR Part 52. Z. Women- and Minority -Owned Businesses (W/MBE) SUBRECIPIENT will use its best efforts to afford small businesses, minority business enterprises, and women's business enterprises the maximum practicable opportunity to participate in the performance of this Agreement in accordance with the requirements of 2 CFR 200.321 "Contracting with small and minority businesses, women's business enterprises, and labor surplus area firms". As used in this Agreement, the term "small business" means a business that meets the criteria set forth in section 3(a) of the Small Business Act, as amended (15 U.S.C. 632), and "minority and women's business enterprise" means a business at least fifty-one percent (51%) owned and controlled by minority group members or women. For the purpose of this definition, "minority group members" are African -Americans, Spanish-speaking, Spanish surnamed or Spanish- 60A-31 heritage Americans, Asian -Americans, and American Indians. SUBRECIPIENT may rely on written representations by businesses regarding their status as minority and female business enterprises in lieu of an independent investigation. ffm A. Payment of Funds. On July 1, 2020, the CITY expects to be allocated $5,701,154 for fiscal year 2020-2021 from the United States Department of Housing and Urban Development ("HUD") Community Development Block Grant ("CDBG') Entitlement Program. CITY agrees to pay to SUBRECIPIENT when, if and to the extent federal funds are received a sum not to exceed _ Dollars ($00,000) for SUBRECIPIENT'S performance in accordance with the Budget attached hereto as "Exhibit B" during the period of this Agreement. Payments shall be made to SUBRECIPIENT through the submission of invoices/reimbursement requests. MY shall pay such invoices/reimbursement requests within thirty (30) days after receipt thereof provided CITY is satisfied that such expenses have been incurred and documented within the scope and provisions of this Agreement and that SUBRECIPIENT is in compliance with the terms and conditions of this Agreement. Failure to provide any of the required documentation and reporting will cause CITY to withhold all or a portion of a request for reimbursement, or return the entire reimbursement package to SUBRECIPIENT, until such documentation and reporting has been received and approved by CITY. Documentation may include, but is not limited to true copies of invoices, receipts, canceled checks, bank statements, credit card statements, procurement documentation for goods or services, timesheets, payroll records, benefit statements, agreements, contracts or documentation pertaining to costs for subcontractors, and/or other documentation supporting and evidencing how the CDBG FUNDS have been expended during the applicable quarter. B. Audit of Account. CITY shall include an audit of the account maintained by SUBRECIPIENT in CITY's annual audit of all CDBG FUNDS in accordance with Title 24 of the Code of Federal Regulations and other applicable federal laws and regulations. C. Common Rule: Pursuant to 2 CFR 200.328(a), the CITY manages the day-to-day operations of each grant and subgrant supported activities. CITY staff has detailed knowledge of the grant program requirements and monitors grant and subgrant supported activities to assure compliance with Federal requirements. Such monitoring covers each program, function and activity and performance goals are reviewed periodically. D. Environmental Review: In accordance with 24 CFR 58, the CITY is responsible for undertaking environmental review and maintaining environmental review records for each applicable proj ect. E. Performance Monitoring: CITY shall monitor the performance of SUBRECIPIENT against goals and performance standards required herein. The SUBRECIPIENT shall be responsible to accomplish the levels of performance as set forth in Exhibit A and report such measures quarterly to the CITY. If the SUBRECIPIENT estimates such goals will not be met, the SUBRECIPIENT is to contact the CITY, at which time the CITY will determine if any adjustments to the grant award is appropriate. Substandard performance as determined by the CITY will constitute non-compliance with this Agreement. Should the CITY determine that the SUBRECIPIENT has not performed its obligations as stated in this contract in a satisfactory manner, or if the CITY determines that insufficient supporting information has been submitted, the CITY shall notify the SUBRECIPIENT in writing of its determination specifying in full detail the objections which it has to the SUBRECIPIENT's performance. If action to correct such substandard performance is not taken by the SUBRECIPIENT after being WA-32 notified by the CITY, within a reasonable period of time as stipulated in the written notification, contract suspension or termination procedures will be initiated. A. SUBRECIPIENT agrees to comply with Executive Order 11246 which requires that during the performance of this Agreement, SUBRECIPIENT agrees not to discriminate against any employee or applicant for employment because of race, religion, sex, color or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer, rates of pay or other forms of compensation, and selection for training, including apprenticeship. SUBRECIPIENT agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the SUBRECIPIENT setting forth the provisions of this nondiscrimination clause. B. SUBRECIPIENT agrees to comply with Title VI of the Civil Rights Act of 1964 which indicates that no person shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program of activity receiving federal financial assistance. C. No person shall, on the grounds of race, sex, creed, color, religion, marital status, national origin, age, sexual orientation, or physical or mental handicap be excluded from participation in, be refused the benefits of, or otherwise be subject to discrimination in any activities, programs or employment supported by this Agreement. SUBRECIPIENT is prohibited from discrimination on the basis of age or with respect to an otherwise qualified handicapped person as provided for under Section 109 of the Housing and Community Development Act of 1974, as amended. D. SUBRECIPIENT agrees to comply with the Age Discrimination Act of 1975 which requires that during the performance of this Agreement, SUBRECIPIENT agrees not to discriminate against any employee or applicant for employment because of age. Such action shall include, but not be limited to the following: employment upgrading, demotion, or transfer, rates of pay or other forms of compensation, and selection for training, including apprenticeship. SUBRECIPIENT agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the SUBRECIPIENT setting forth the provisions of this age discrimination clause. E. SUBRECIPIENT agrees to comply with Section 504 of the Rehabilitation Act of 1973 which requires that no otherwise qualified individual with a disability in the United States, shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity conducted by any executive agency or by the United States Postal Service. I_\y�K�l`►1 y 11 C�]IZ�I 1► M t �I I Pursuant to the conflict of interest requirements set forth in 24 CFR 570.611 and 2 CFR 200.112, SUBRECIPIENT certifies that no member, officer, employee, agent or assignee of CITY having direct or indirect control of any CDBG monies granted to the CITY, inclusive of the subject CDBG FUNDS, shall serve as an officer of SUBRECIPIENT. Further, any conflict or potential conflict of interest of any officer of SUBRECIPIENT shall be fully disclosed in writing prior to the execution of this Agreement and said writing shall be attached and deemed fully incorporated as a part hereof. Notice shall be sent by SUBRECIPIENT to CITY regarding any changes or modifications to its board of directors and list of officers. V. SPECIAL CERTIFICATION FOR RELIGIOUS ENTITIES If SUBRECIPIENT is a religious entity, SUBRECIPIENT hereby agrees that in connection with the provision of the services SUBRECIPIENT shall provide with CDBG funds, in accordance with 24 CFR 570.2000): A. SUBRECIPIENT shall not discriminate against any employee or applicant for employment on the basis of religion and shall not limit employment or give preference in employment to persons on the basis of religion. B. SUBRECIPIENT shall not discriminate against any person applying for the services SUBRECIPIENT agrees to provide under the terms of this Agreement on the basis of religion and shall not limit such services or give preference to applicants for such services on the basis of religion. C. SUBRECIPIENT shall NOT provide religious instruction or counseling, conduct any religious worship or services, or engage in any religious proselytizing, or exert any religious influence in the provision of the services in said program. The parties agree that this covenant is intended to and shall be construed for the limited purpose of assuring compliance with respect to the use of CITY funds by SUBRECIPIENT with applicable constitutional limitations respecting the establishment of religion as set forth in the establishment clause under the First Amendment of the United States Constitution and Article I, Section 4 of the California Constitution, and is not in any manner intended to restrict other activities of SUBRECIPIENT. D. The portion of a facility used to provide public services assisted in whole or in part under this Agreement shall contain no sectarian or religious symbols. E. Where the services to be provided under said program are rendered on property owned by the primarily religious entity SUBRECIPIENT, CDBG funds may also be used for minor repairs to such property which are directly related to the cost of rendering the services under said program, where the cost constitutes in dollar terms only an incidental portion of the CDBG expenditure for rendering the services under said program. SUBRECIPIENT agrees not to hire or permit the hiring of any person to fill a position funded through this Agreement if a member of that persons immediate family is employed in an administrative capacity by SUBRECIPIENT. For the purposes of this section, the term "immediate family" means spouse, child, mother, father, brother, sister, brother-in-law, sister-in-law, father-in-law, mother-in-law, son-in-law, daughter-in-law, aunt, uncle, niece, nephew, stepparent and stepchild. The term "administrative capacity" means having selection, hiring, supervisor or management responsibilities. VII. NOTICES Notices to the parties shall, unless otherwise requested in writing, be sent by U.S. Mail, postage prepaid, and addressed as follows: TO CTTY: City of Santa Ana Community Development Agency (M-25) 20 Civic Center Plaza P.O. Box 1988 Santa Ana, California 92702-1988 60A-34 TO SUBRECIPIENT: Agency Contact Contact Title CITY AGENCY Department 20 Civic Center Plaza, M-25 Santa Ana, CA 92702 1IUMERMy C"I1.11 M I None of the duties of, or work to be performed by, SUBRECIPIENT under this Agreement shall be subcontracted or assigned to any agency, consultant, or person without the prior written consent of CITY. SUBRECIPIENT must submit all subcontracts and other agreements that relate to this Agreement to CITY. No subcontract or assignment shall terminate or alter the legal obligations of SUBRECIPIENT pursuant to this Agreement. IX. HOLD HARMLESS SUBRECIPIENT shall indemnify, defend and save harmless CITY, its officers, employees, agents, representatives and volunteers from and against any and all damages to or for loss of use of property and for injuries to or death of any person or persons, including property and employees or agents of CITY, and shall defend, indemnify and save harmless CITY, its officers, employees, agents, representatives and volunteers from and against any and all claims, demands, suits, actions or proceedings of any kind or nature, including, but not by way of limitation, workers compensation claims and including attorney fees and reasonable expenses for litigation or settlement, resulting from or arising out of the negligent or wrongful acts, errors or omissions of SUBRECIPIENT, its officers, directors, employees, agents, subcontractors and suppliers arising out of SUBRECIPIENT's performance of this Agreement. X. INSURANCE 1. Commercial General Liability. SUBRECIPIENT agrees to obtain and keep in force during the term of this Agreement a policy of comprehensive commercial public liability insurance insuring the CITY, and SUBRECIPIENT against any liability for accident, injury or death arising out of or in consequence of this Agreement. Such insurance shall be in an amount not less than One Million Dollars ($1,000,000.00) for any injury to or death of any person or persons in any single accident or occurrence. Said policy of comprehensive liability insurance shall be endorsed to provide to CITY at least thirty (30) days written notice prior to cancellation; name CITY, its officers, agents, employees, and volunteers, additional insured; and state that such coverage is primary to any other coverage or self- insurance and CITY. Governmental entities may provide proof of self-insurance. (a) Such insurance shall: (1) name the City of Santa Ana, its officers, agents, representatives, employees and volunteers as additional insured's; (2) be primary with respect to insurance or self-insurance programs maintained by the CITY; (3) contain standard separation of insured's provisions; and (4) give to CITY prompt and timely notice of claim made or suit instituted arising out of SUBRECIPIENT's operations hereunder. (b) SUBRECIPIENT shall: (1) prior to exercising any right under this Agreement, furnish properly executed certificates of insurance and additional insured endorsement to the CITY which shall clearly evidence all coverages required above; (2) provide that such insurance shall not be materially changed or terminated except on 30 days prior written notice to the CITY; (3) maintain such insurance for the period covered by this Agreement; and (4) replace such certificates for policies expiring prior to the expiration of this Agreement 60A-35 2. Automobile Liability Coverage. SUBRECIPIENT shall also obtain and maintain, during the effective period of this Agreement, broad form automobile liability coverage with a $1,000,000 limit unless reduced by CITY, which applies to both owned/leased and non -owned automobiles used by SUBRECIPIENT employees or participants in performance of this Agreement, or, in the event that SUBRECIPIENT will not utilize such owned/leased automobiles but intends to require employees, participants or other agents to utilize their own automobiles in the performance of this Agreement, SUBRECIPIENT shall secure and maintain on file from all such employees, participants, or agents as self -certification of automobile insurance coverage. Governmental entities may provide proof of self- insurance. 3. Workers' Compensation. If SUBRECIPIENT is an "employer", as set forth in California Labor Code Section 3300 et seq., or utilizes participants as "employees," as set forth in California Labor Code Section 3350 et seq., SUBRECIPIENT shall obtain and keep in force during the term of this Agreement full Workers' Compensation insurance coverage for injuries suffered by participants. Said insurance policy shall guarantee CITY at least thirty (30) days written notice of cancellation or modification. 4. Equipment Coverage. SUBRECIPIENT shall purchase a policy or policies of insurance covering loss or damage to any and all Equipment provided to or purchased by SUBRECIPIENT in accordance with this Agreement. Said insurance shall be in the amount of the full replacement value thereof, providing protection against the classification of fire, extended coverage, vandalism, malicious mischief, theft, and special extended perils. Governmental entities may substitute a certificate of self- insurance. 5. Proof of Insurance. Certificates and endorsements must be submitted and approved by CITY prior to any work under this Agreement. SUBRECIPIENT understands that CITY will make no payments under this Agreement until the required certificates and endorsements have been approved by CITY. M. REVERSION OF ASSETS A. Upon the expiration of this Agreement, SUBRECIPIENT shall transfer to CITY any CDBG funds on hand at the time of the expiration of this Agreement as well as any accounts receivable attributable to the use of CDBG funds. [24 CFR 570.503(b)(7)] B. Any real property under SUBRECIPIENT's control that was acquired or improved in whole or in part with CDBG funds in excess of $25,000.00 must either be: 1. Used, where CITY has given written approval, to meet one of the national objectives stated in 24 CFR 570.208 until five (5) years after expiration of this Agreement, or for such longer period of time as determined to be appropriate by CITY, or 2. If not used in accordance with subparagraph 1 above, SUBRECIPIENT shall pay to CITY an amount equal to the current fair market value of the property less any portion of the value attributable to the expenditure of non-CDBG funds for acquisition of, or improvement to, the property. Such payment is program income to CITY. C. Subject to the obligations set forth herein, title to equipment acquired under the terms of this Agreement will vest upon acquisition in SUBRECIPIENT. When said equipment which has been acquired in accordance with this Agreement and all applicable regulations is no longer needed for said program, disposition of said equipment will be made as follows: 60A-36 1. Items of equipment with a current per unit fair market value of less than $5,000.00 may be retained, sold or otherwise disposed of with no further obligation to CTTY. 2. Items of equipment with a current fair market per unit value of $5,000.00 or more may be retained or sold and CITY shall have the right to an amount calculated by multiplying the current market value or proceeds from the sale by CTTY's share of federal funds used to acquire the equipment, in accordance with 2 CFR 200.313(e)(2). D. SUBRECIPIENT hereby agrees, upon the demand of CITY, to execute, acknowledge and deliver, or cause any person or entity who may have any claim to rights hereunder or under any document, instrument or agreement executed in furtherance of the services and activities to be performed hereunder, to execute, acknowledge and deliver, to CITY assignment(s), quit claim deed(s) or such other and further instruments, documents and agreements as may be necessary, in the sole and absolute discretion of CITY, to vest in CITY all of SUBRECIPIENT's right, title and interest (if any it may have) in and to CITY, CDBG or other federal, state and/or local accounts or program funds or allocation of funds to which CTTY is or may be entitled, either for its own account or as fiduciary or trustee for others, which were obtained for the purpose of the performance of this Agreement or any previous agreements relating to the same subject matter or activities as this Agreement, together with any instruments, loans, grants or advances by SUBRECIPIENT on behalf of CITY, in furtherance of the activities hereunder or thereof. SUBRECIPIENT's obligations and responsibilities set forth in this paragraph "XI. REVERSION OF ASSETS," and in paragraph "XB. TERMINATION" and other requirements pertaining to program income shall not be affected by the termination of this Agreement and shall survive the date of termination of this Agreement for such period of time as CTTY and/or HUD deems necessary for the responsibilities, duties and obligations to be performed and completed to the satisfaction of CITY and HUD. XII. TERMINATION A. This Agreement maybe terminated on thirty (30) days' written notice by either party. In the event of such termination, SUBRECIPIENT shall only be entitled to reimbursement for approved expenses incurred to the effective date of termination. B. This Agreement maybe suspended or terminated by CITY upon five (5) days' written notice for violation by SUBRECIPIENT of Federal Laws governing the use of Community Development Block Grant Funds. In the event of such suspension or termination, SUBRECIPIENT shall only be entitled to reimbursement for approved expenses incurred up to the effective date of suspension or termination. C. Pursuant to 2 CFR 200.340, in the event SUBRECIPIENT defaults by failing to fulfill all or any of its obligations hereunder, CTTY may declare a default and termination of this Agreement by written notice to SUBRECIPIENT, which default and termination shall be effective on a date stated in the notice which is to be not less than ten (10) days after certified mailing or personal service of such notice, unless such default is cured before the effective date of termination stated in such notice. If terminated for cause, CITY shall be relieved of further liability or responsibility under this Agreement, or as a result of the termination thereof, including the payment of money, except for payment for approved expenses incurred for services satisfactorily and timely performed prior to the mailing or service of the notice of termination, and except for reimbursement of (1) any payments made for services not subsequently performed in a timely and satisfactory manner, and (2) costs incurred by CITY in obtaining substitute performance. D. The grant of funds under this Agreement may be terminated for convenience by either the CITY or SUBRECIPIENT, in whole or in part, by setting forth the reasons for such termination, the effective date, and, in the case of portion termination, their portion to b terminated, however, if in the case of a partial 60A-37 termination, the CITY determines that the remaining portion of the award will not accomplish the purpose for with the award was made, the CITY may terminate the award in its entirety. E. The grant of funds under this Agreement may be terminated due to the non-performance of SUBRECIPIENT and/or failure of SUBRECIPENT to perform the work described in Exhibits A and B or failure to meet the performance standards and program goals set forth therein. F. In the event this Agreement is terminated as set forth in subparagraphs XII.A. through XII.E., inclusive, SUBRECIPIENT agrees to immediately return to CITY upon CITY's demand and prior to any adjudication of SUBRECIPIENT's rights, any and all funds not used, and to comply with paragraph "XI. REVERSION OF ASSETS" of this Agreement. XM. LIMITATION OF FUNDS The United States of America, through HUD, may in the future place programmatic or fiscal limitations on the use of CDBG funds which limitations are not presently anticipated. Accordingly, CITY reserves the right to revise this Agreement in order to take account of actions affecting HUD program funding. In the event of funding reduction, CITY may, in its sole and absolute discretion, reduce the budget of this Agreement as a whole or as to costs category, may limit the rate of SUBRECIPIENT's authority to commit and spend funds, or may restrict SUBRECIPIENT's use of both its uncommitted and its unspent funds. Where HUD has directed or requested CITY to implement a reduction in funding, in whole or as to a cost category, with respect to funding for this Agreement, CrIY's City Manager or delegate is authorized to act for CITY in implementing and effecting such a reduction and in revising, modifying, or amending the Agreement for such purposes. If such a reduction in funding occurs, SUBRECIPIENT shall be permitted to de -scope accordingly. Where CtrY has reasonable grounds to question SUBRECIPIENT's fiscal accountability, financial soundness, or compliance with this Agreement, CITY may suspend the operation of this Agreement for up to sixty (60) days upon five (5) days written notice to SUBRECIPIENT of its intention to so act, pending an audit or other resolution of such questions. In no event, however, shall any revisions made by CITY affect expenditures and legally binding -commitments made by SUBRECIPIENT before it received notice of such revision, provided that such amounts have been committed in good faith and are otherwise allowable and that such commitments are consistent with HUD cash withdrawal guidelines. XIV. EXCLUSIVITY AND AMENDMENT OF AGREEMENT This Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the use of Crl Y's CDBG funds by SUBRECIPIENT and contains all the covenants and agreements between the parties with respect to such employment in any manner whatsoever. 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, and that no other agreement or amendment hereto shall be effective unless executed in writing and signed by both CITY and SUBRECIPIENT. XV. LAWS GOVERNING THIS AGREEMENT This Agreement shall be governed by and construed in accordance with the laws of the State of California, and all applicable federal laws and regulations. XVI. CLOSE-OUT The SUBRECIPIENT agrees to comply with the closeout procedures detailed in 2 CFR §200.343, including the following: ZI I • 1. SUBRECIPIENT must submit, no later than ninety (90) calendar days after the end date of the period of performance, all financial, performance, and other reports as required by the terms and conditions of the Federal award; 2. Unless the CITY authorizes an extension, SUBRECIPIENT must liquidate all obligations incurred under the Federal award not later than ninety (90) calendar days after the end date of the period of performance as specified in the terms and conditions of the Federal award; 3. SUBRECIPIENT must promptly refund any balances of unobligated cash that the CITY paid in advance or paid and that is not authorized to be retained by SUBRECIPIENT for use in other projects (See OMB Circular A-129 and 2 CFR §200.345); 4. SUBRECIPIENT must account for any real and personal property acquired with Federal funds or received from the Federal government in accordance with 2 CFR §§200.310- 200.316 and 200.329; and, 5. The CITY should complete all closeout actions for the Federal award no later than one year after receipt and acceptance of all required final reports. XVII. VALIDITY AND SEVERABIIITY The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. Whenever possible, each provision of this AGREEMENT shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this AGREEMENT is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions of this AGREEMENT. XVIIL WAIVER No delay or omission by either party hereto to exercise any right or power accruing upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the covenants, conditions, or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein contained. XIX. 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 and Attachments referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. {Signatures on following page) 60N-39 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the last date and year written below. ATTEST: DAISY GOMEZ Acting Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO RECOMMENDED FOR APPROVAL: STEVEN MENDOZA Executive Director Community Development Agency CITY OF SANTA ANA KRISTINE RIDGE City Manager SUBRECIPIENT: NAME Title Tax ID: 00-0000000 DUNS#: 000000000 16 60A-40 1010111-1110 AGREEMENT BETWEEN THE CITY OF SANTA ANA AND NONPROFIT ORGANIZATION NAME FOR USE OF COMMUNITY DEVELOPMENT BLOCK GRANT FUNDS This Agreement is hereby made and entered into this 1st day of July, 2020, 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 Nonprofit Organization Name, a California nonprofit corporation ("SUBRECIPIENT"). RECITALS: A. The CITY, as an entitlement recipient and grantee of the United States Department of Housing and Urban Development ("HUD") Community Development Block Grant ("CDBG") Entitlement Program, Catalog of Federal Domestic Assistance (CFDA) Number 14.218, and Federal Award Identification Number (FAIN) B-20-MC-06-0508, desires to enter into this Agreement with the SUBRECIPIENT for the expenditure of CDBG funds in accordance with Title 24, Part 570 of Code of Federal Regulations 24 CFR 570.000, et seq. ("CDBG REGS"). B. CITY has applied for and received CDBG funds from HUD pursuant to Title I of the Housing and Community Development Act of 1974, Public Law 93-383, as amended ("ACT"). C. The SUBRECIPIENT is a private nonprofit corporation that has been selected by the CITY to receive CDBG funds and administer such financial assistance; and to provide the services described in Exhibit A, in accordance with the Schedule of Performance included therein, hereinafter referred to as "said program". SUBRECIPIENT represents that it is qualified and willing to operate said program and certifies that the activities carried out with funds provided under this Agreement will meet one or more of the CDBG program's National Objectives (24 CFR Part 570.208). D. SUBRECIPIENT agrees that it will adhere to the performance measurements and outcomes as indicated on Exhibit A (Schedule of Performance). Failure to follow the measurements and meet the stated outcomes may constitute breach of contract that could result in termination of this Agreement or serve as reason for the City to recapture the grant funds awarded to SUBRECIPIENT pursuant to this Agreement. WHEREFORE, it is agreed by and between the parties that the foregoing Recitals are a substantive part of this Agreement and the following terms and conditions are approved and together with all exhibits and attachments hereto, shall constitute the entire Agreement between the CITY and SUBRECIPIENT: I. SUBRECH'IENT'S OBLIGATIONS A. Nonprofit Status -Representations and Warranties. (a) Authority. SUBRECIPIENT is a duly organized and existing nonprofit corporation in good standing and authorized to do business under the laws of the State of California. SUBRECIPIENT has full right, power and lawful authority to accept the funding hereunder and to undertake all obligations as provided herein and the execution, performance and delivery of this Agreement by SUBRECIPIENT has been fully authorized by all requisite actions on the part of SUBRECIPIENT. (b) Experience. SUBRECIPIENT is a qualified provider of the services to be provided hereunder. 1 60A-41 1010111-1110 (c) Familiarity With Services Required. By executing this Agreement, SUBRECIPIENT warrants that (i) it has thoroughly investigated and considered the services to be performed and provided hereunder, (ii) it has carefully considered how the services should be performed, and (iii) it fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. (d) No Conflict. To the best of SUBRECIPIENT'S knowledge, SUBRECIPIENT'S execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which SUBRECIPIENT is a party or by which it is bound. (e) No Bankruptcy. SUBRECIPIENT is not the subject of any current or threatened bankruptcy proceeding. (f) No Pending Legal Proceedings. SUBRECIPIENT is not the subject of a current or threatened litigation that would or may materially affect SUBRECIPIENT'S performance under this Agreement. (g) Application Veracity. All provisions of and information provided in SUBRECIPIENT'S application for funding submitted to CITY, including any exhibits, are true and correct in all material respects. (h) No Pending Investigation. SUBRECIPIENT has no knowledge that it is the subject of any current or threatened criminal or civil action investigation by any public agency, including without limitation a police agency or prosecuting authority, that would relate to or affect performance of the Agreement or provision of services hereunder. B. Amount of Grant/Tenn and Quarterly Disbursement. The amount granted to SUBRECIPIENT is $00,000 ("CDBG FUNDS"), for the two-year term from July 1, 2020 through June 30, 2022 for the program named: XXXX. Such funds shall be expended by SUBRECIPIENT on or before June 30, 2022. The Term of this Agreement maybe extended by a writing executed by the City Manager, or his or her designee, and the City Attorney. The CDBG FUNDS shall be disbursed by CITY to SUBRECIPIENT on a quarterly basis subject to and upon receipt and approval of a complete quarterly activity report from SUBRECIPIENT, with the final payment subject to the satisfaction of the condition precedent of submittal of complete reporting information due on or before July 15 of the applicable funding year, as hereinafter more fully set forth. SUBRECIPIENT shall be obligated to perform such duties as would normally extend beyond the term, including, but not limited to, obligations with respect to indemnification, audits, reporting, data retention/reporting, and accounting. Failure to provide any of the required documentation and reporting will cause CITY to withhold all or a portion of a request for reimbursement, or return the entire reimbursement package to SUBRECIPIENT, until such documentation and reporting has been received and approved by CITY. Funding for the second year of the term is subject to and contingent on the CITY receiving sufficient CDBG FUNDS from HUD for the 2021-2022 CDBG program year. The CITY reserves the right to reduce the amount of CDBG FUNDS to SUBRECIPIENT, or to completely terminate this Agreement, in the CITY's sole discretion, if there is a reduction in CDBG FUNDS provided to the CITY for program year 2021-2022. The CITY reserves the right to reduce the grant application if the CITY's fiscal monitoring indicates that SUBRECIPIENT's rate of expenditure will result in unspent funds at the end of the program years. Amendments in the grant allocation will be made after consultation with SUBRECIPIENT. 2 60A-42 C. Use of Funds. SUBRECIPIENT agrees to use all federal funds provided by CITY to SUBRECIPIENT pursuant to this Agreement to operate said program, as set forth in "Exhibit A," attached hereto and by this reference incorporated herein. SUBRECIPIENT'S failure to perform as required may, in addition to other remedies set forth in this Agreement, result in readjustment of the amount of funds CITY is otherwise obligated to pay to SUBRECIPIENT hereunder. D. Allowable Costs. SUBRECIPIENT agrees to complete said program on or before June 30, 2022, and to use said funds to pay for necessary and reasonable costs allowable under the federal law and regulations to operate said program. Said amounts shall include, but not be limited to, wages, administrative costs, and employee benefits comparable to other similarly situated employees, and indirect costs. Other allowable program costs are detailed in the budget, as set forth in "Exhibit B," attached hereto and by this reference incorporated herein. SUBRECIPIENT shall use all income received from said funds only for the same purposes for which said funds may be expended pursuant to the terms and conditions of this Agreement. SUBRECIPIENT has the ability to adjust line item amounts in the budget with the written approval of the CrrY's Executive Director of the Community Development Agency, or designee, so long as the total budget amount does not increase. Pursuant to 2 CFR §200.331(a)(4), the Indirect Cost Rate for the SUBRECIPIENT's award shall be an approved federally recognized indirect cost rate negotiated between the SUBRECIPIENT and the Federal government, or, if no such rate exists, the de minimis indirect cost rate as defined in 2 CFR §200.414(b) Indirect (F&A) costs. For this agreement, the de minimis indirect cost rate of 10% will apply. E. Licensing. SUBRECIPIENT agrees to obtain and maintain all required licenses, registrations, accreditation and inspections from all agencies governing its operations. SUBRECIPIENT shall ensure that its staff shall also obtain and maintain all required licenses, registrations, accreditation and inspections from all agencies governing SUBRECIPIENT's operations hereunder. Such licensing requirements include obtaining a City business license, as applicable. F. Zoning. SUBRECIPIENT agrees that any facility/property used in fiartherance of said program shall be specifically zoned and permitted for such use(s) and activity(ies). Should SUBRECIPIENT fail to have the required land entitlement and/or permits, thus violating any local, state or federal rules and regulations relating thereto, SUBRECIPIENT shall immediately make good -faith efforts to gain compliance with local, state or federal rules and regulations following written notification of said violation(s) from the CITY or other authorized citing agency. SUBRECIPIENT shall notify CITY immediately of any pending violations. Failure to notify CITY of pending violations, or to remedy such known violation(s) shall result in termination of grant funding hereunder. SUBRECIPIENT must make all corrections required to bring the facility/property into compliance with the law within sixty (60) days of notification of the violation(s); failure to gain compliance within such time shall result in termination of grant funding hereunder. G. Separation of Accounts. All funds received by SUBRECIPIENT from CITY pursuant to this Agreement shall be maintained in an account in a federally insured banking or savings and loan institution with record keeping of such accounts maintained pursuant to applicable 2 CFR 200.302 requirements. SUBRECIPIENT is not required to maintain separate depository accounts for CDBG FUNDS; provided however, the SUBRECIPIENT must be able to account for receipt, obligation and expenditure of CDBG FUNDS pursuant to applicable 2 CFR 200.302 requirements. H. Audit Report Requirements. SUBRECIPIENT agrees that if SUBRECIPIENT expends Seven Hundred Fifty Thousand Dollars ($750,000) or more in federal funds, SUBRECIPIENT shall have an annual audit conducted by a certified public accountant in accordance with the standards as set forth and 3 60A-43 published by the United States Office of Management and Budget. SUBRECIPIENT shall provide CITY with a copy of said audit by April 1 of the year following the program year in which this Agreement is executed. I. Record Kegping% op rting. SUBRECIPIENT shall keep and maintain complete and adequate records and reports on program participants to determine their initial and continuing eligibility for the program services being provided to assist CITY in meeting and maintaining its record keeping responsibilities under the CDBG REGS, including the following: (1) Records a. Documentation evidencing program income requirements in conformity with 24 CFR 570.504(b((2)(i), (ii) and 24 CFR 570.503(b)(3) and 24 CFR 570.208(a)(2)(B) of the income level of persons and/or families participating in or benefiting by the SUBRECIPIENT program. b. Documentation of the number of persons and/or families participating in or benefiting by the SUBRECIPIENT program. c. Household information shall include number of persons, identification of head of household, race/ethnicity, and income verification of all household members ages 18 and over. d. Documentation of all CDBG FUNDS received from CITY. e. Documentation of expenses as identified in the Budget Proposal, including evidence of incurring the expense, invoices for goods or services, copies of any and all contracts or documentation pertaining to costs for subcontractors, plus all other invoices and proof of payment for which CDBG FUNDS were expended, and any payments therefor. f. Any such other related records as CffY shall reasonably require or as required to be maintained pursuant to the CDBG REGS. (2) Re —I orts a. Payment Request. Concurrently with the submittal of each quarterly report, on or before the 15th day of October, January, April and July, SUBRECT ENT shall submit both: an original invoice/request for reimbursement and true copies of invoices, receipts, canceled checks, bank statements, credit card statements, procurement documentation for goods or services, timesheets, payroll records, benefit statements, agreements, contracts or documentation pertaining to costs for subcontractors, and/or other documentation supporting and evidencing how the CDBG FUNDS have been expended during the applicable quarter. b. Quarterly Progress Report. SUBRECIPIENT agrees to keep records of all ethnic and racial statistics of persons and families benefited by SUBRECIPIENT in the performance of its obligations under this Agreement, including, but not limited to, the number of low and moderate income persons and households assisted in accordance with federal income limits, the number of female heads of households assisted, new program information and year-to-date program statistics on expenditures, caseload and activities. Failure to provide any of the required documentation and reporting will cause CITY to withhold all or a portion of a request for reimbursement, or return the entire reimbursement package to SUBRECIPIENT, until such documentation and reporting has been received and approved by CITY. I Access to Records. CITY and the United States Government and their representatives or auditors shall have access for purposes of monitoring, auditing, and examining SUBRECIPIENT's activities and performance, to books, documents and papers, and the right to examine records of SUBRECIPIENI"s subcontractors, bookkeepers and accountants, employees and participants in regard to said program. CITY and the United States Government and their representatives or auditors shall also schedule on -site monitoring at their discretion. Monitoring activities may also include, but are not limited to, questioning employees and participants in said program and entering any premises or any site in which any of the services or activities funded hereunder is conducted or in which any of the records of SUBRECIPIENT are kept. Nothing herein shall be construed to require access to any privileged or confidential information as set forth in federal or state law. K. Location of Records/Required Length of Record Keeping. All accounting records, reports, and evidence pertaining to all costs, expenses and the CDBG FUNDS of SUBRECIPIENT and all documents related to this Agreement shall be maintained and kept available at SUBRECIPIENT'S office or place of business for the duration of the Agreement and thereafter for five (5) years from the date of final payment under this Agreement. Records which relate to (a) complaints, claims, administrative proceedings or litigation arising out of the performance of this Agreement, or (b) costs and expenses of this Agreement to which CITY or any other governmental agency takes exception, shall be retained beyond the five (5) years until complete resolution or disposition of such appeals, litigation claims, or exceptions. In the event SUBRECIPIENT does not make the above -referenced documents available within the city of Santa Ana, California, SUBRECIPIENT agrees to pay all necessary and reasonable expenses incurred by CITY in conducting any audit at the location where said records and books of account are maintained. L. Compliance with Law/Program Income. SUBRECIPIENT acknowledges that the funds being provided by CITY for said program are received by CITY pursuant to the ACT as amended and that expenditures of these funds shall be in accordance with the ACT and all pertinent regulations issued by agencies of the federal government, including, but not limited to, all regulations found at Title 24 of the Code of Federal Regulations. Program income received by SUBRECIPIENT shall be returned to CITY unless otherwise provided for in this Agreement. SUBRECIPIENT agrees to comply fully with all federal, state and local laws and court orders applicable to its operation whether or not referred to in this Agreement. M. Debarment. To protect the public interest and ensure the integrity of Federal programs, CITY may only conduct business with responsible persons and may not make any award or permit any award to any party which is debarred or suspended or is otherwise excluded from or ineligible for participation in Federal assistance programs under Executive Order 12549, "Debarment and Suspension". See also 24 CFR 570.609. SUBRECIPIENT must review and sign Exhibit C "Debarment", which is attached hereto and incorporated herein by this reference. SUBRECIPIENT shall be in good standing, without suspension by the California Secretary of State, Franchise Tax Board and Internal Revenue Service. Any change in the corporate status or suspension of SUBRECIPIENT shall be reported immediately to CITY. N. Confidentiality. Without prejudice to any other provisions of this Agreement, SUBRECIPIENT shall, where applicable, maintain the confidential nature of information provided to it concerning participants in accordance with the requirements of federal and state law. However, SUBRECIPIENT shall submit to CITY and or HUD or its representatives, all records requested, including audit, examinations, monitoring and verifications of reports submitted by SUBRECIPIENT, costs incurred and services rendered hereunder. O. Independent Contractor. SUBRECIPIENT agrees that the performance of obligations hereunder is rendered in its capacity as an independent contractor and that it is in no way an agency of CITY. 5 60A-45 P. Violation of Terms and Conditions. SUBRECIPIENT agrees that if SUBRECIPIENT violates any of the terms and conditions of this Agreement or any prior Agreement whereby CDBG funds were received by SUBRECIPIENT, or if SUBRECIPIENT reports inaccurately, or if on audit there is a disallowance of certain expenditures, SUBRECIPIENT agrees to remedy the acts or omissions causing the disallowance and repay CITY all amounts spent in violation thereof. If SUBRECIPIENT engaged in fraudulent activity to obtain and/or justify expenditure of the CDBG funds granted hereunder, SUBRECIPIENT shall be required to reimburse the CITY of all such funds that were obtained and/or spent under fraudulent circumstances. Q. Equipment. SUBRECIPIENT agrees to maintain a record for each item of non -expendable personal property acquired under the terms of this Agreement. Said record shall be made available to CITY upon request. The term "non -expendable personal property" shall include leased and purchased equipment. R. Prohibited Use. SUBRECIPIENT hereby certifies and agrees that it will not use fiords provided through this Agreement to pay for entertainment, meals or gifts, or other prohibited uses. S. Lobbvine. SUBRECIPIENT certifies that it will comply with federal law (31 U.S.C. 1352) and regulations found at 24 CFR Part 87, which provide that no appropriated funds may be expended by the recipient of a federal contract, grant, loan or cooperative agreement to pay any person for influencing or attempting to influence an officer or employee of any agency, Member of Congress, or an officer or employee of a Member of Congress in connection with awarding of any federal contract, the making of any federal grant or loan, entering into any cooperative agreement and the extension, renewal, amendment or modification of any federal contract, grant, loan or cooperative agreement. SUBRECIPIENT shall sign a certification to that effect in a form as set forth in "Exhibit D," attached hereto and by this reference incorporated herein. SUBRECIPIENT shall submit said signed certification to CITY prior to performing any of its obligations under this Agreement and prior to any obligation arising on the part of CITY to pay any sums to SUBRECIPIENT under the terms and conditions of this Agreement. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit a "Disclosure Form to Report Lobbying," in accordance with its instructions (Exhibit D). SUBRECIPIENT shall require that the language of this certification be included in the award documents for all sub -awards at all tiers (including subcontractors, sub -grants, and contracts under grants, loans, and cooperative agreements), and agrees to take all actions necessary to ensure that all subrecipients shall similarly certify and disclose accordingly. T. Financial Interest. SUBRECIPIENT agrees that except for the use of CDBG funds to pay salaries and other related administrative or personnel costs, no persons who exercise or have exercised any function with respect to CDBG activities assisted under the terms of this Agreement, or who are in a position to participate in a decision -making process or gain inside information with regard to such activities, may obtain a financial interest or benefit from a CDBG-assisted activity of SUBRECIPIENT, either for themselves or those with whom they have family or business ties, during their tenure or for one year thereafter. This prohibition applies to any person who is an employee, agent, consultant, officer, or elected or appointed official of CITY, or of any designated public agency, or the SUBRECIPIENT. U. Labor Standards. The SUBRECIPIENT agrees to comply with the requirements of the Secretary of Labor in accordance with the Davis -Bacon Act as amended, the provisions of Contract Work T Hours and Safety Standards Act (40 U.S.C. 327 et seq.) and all other applicable Federal, state and local laws and regulations pertaining to labor standards insofar as those acts apply to the performance of this Agreement. The SUBRECIPIENT agrees to comply with the Copeland Anti -Kick Back Act (18 U.S.C. 874 et seq.) and its implementing regulations of the U.S. Department of Labor at 29 CFR Part 5. The SUBRECIPIENT shall maintain documentation that demonstrates compliance with hour and wage requirements of this part. Such documentation shall be made available to the CITY for review upon request. SUBRECIPIENT agrees that, except with respect to the rehabilitation or construction of residential property containing less than eight (8) units, all contractors engaged under contracts in excess of $2,000.00 for construction, renovation or repair work financed in whole or in part with assistance provided under this contract, shall comply with Federal requirements adopted by the CITY pertaining to such contracts and with the applicable requirements of the regulations of the Department of Labor, under 29 CFR Parts 1, 3, 5 and 7 governing the payment of wages and ratio of apprentices and trainees to j oumey workers; provided that, if wage rates higher than those required under the regulations are imposed by state or local law, nothing hereunder is intended to relieve the SUBRECIPIENT of its obligation, if any, to require payment of the higher wage. The SUBRECIPIENT shall cause or require to be inserted in full, in all such contracts subject to such regulations, provisions meeting the requirements of this paragraph. V. Section 3 of the Housing and Urban Development Act of 1968. SUBRECIPIENT will make every effort to provide training opportunities for low -and moderate -income persons residing within the community where the construction project is located and contracts awarded to local businesses therein to the greatest extent feasible as required under the provisions of Section 3 of the Housing and Urban Development Act of 1968, the regulations set forth in 24 CFR 135, and all applicable rules and orders issued hereunder prior to the execution of this Agreement. Compliance with the foregoing requirements shall be a condition of the federal financial assistance provided under this Agreement and binding on the SUBRECIPIENT. Failure to fulfill these requirements shall subject the SUBRECIPIENT, its successors and designees, to those sanctions specified by the Agreement through which federal assistanceis provided. The SUBRECIPIENT certifies and agrees that no contractual or other disability exists which would prevent compliance with these requirements. SUBRECIPIENT shall make every effort to ensure that all projects funded wholly or in part by CDBG funds shall provide equal employment opportunities for minorities and women. W. Ding Free Workplace. SUBRECIPIENT agrees to provide a drug -free work place and to execute a certification as set forth in "Exhibit E" attached hereto and incorporated herein by this reference. X. Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. The following requirements and standards must be complied with: 2 CFR Part 200 et al. SUBRECIPIENT shall procure all materials, property, or services in accordance with the requirements of 2 CFR 200.318-326. Y. Subpart K of 24 CFR 570. SUBRECIPIENT will carry out its activities in compliance with the requirements of Subpart K of 24 CFR 570. However, SUBRECIPIENT does not assume the CITY's environmental responsibilities or the responsibility for initiating the environmental review process under 24 CFR Part 52. Z. Women- and Minority -Owned Businesses (W/MBE). SUBRECIPIENT will use its best efforts to afford small businesses, minority business enterprises, and women's business enterprises the maximum practicable opportunity to participate in the performance of this Agreement in accordance with the requirements of 2 CFR 200.321 "Contracting with small and minority businesses, women's business enterprises, and labor surplus area firms". As used in this Agreement, the term "small business" means a 7 60A-47 business that meets the criteria set forth in section 3(a) of the Small Business Act, as amended (15 U.S.C. 632), and "minority and women's business enterprise" means a business at least fifty-one percent (51 %) owned and controlled by minority group members or women. For the purpose of this definition, "minority group members" are African -Americans, Spanish-speaking, Spanish surnamed or Spanish - heritage Americans, Asian -Americans, and American Indians. SUBRECIPIENT may rely on written representations by businesses regarding their status as minority and female business enterprises in lieu of an independent investigation. II. CITY'S OBLIGATIONS A. Payment of Funds. On July 1, 2020, the CITY was allocated $5,701,154for fiscal year 2020- 2021 from the United States Department of Housing and Urban Development ("HUD") Community Development Block Grant ("CDBGEntitlement Program. Subject to the terms of this Agreement, and contingent on CITY receiving at least the same amount of CDBG fiords from HUD for the 2021-2022 program year, CITY agrees to pay to SUBRECIPIENT when, if and to the extent federal funds are received a sum not to exceed Dollars ($00,000) for SUBRECIPIENT'S performance in accordance with the Budget attached hereto as "Exhibit B" during the two-year period of this Agreement. Payments shall be made to SUBRECIPIENT' through the submission of invoices/reimbursement requests. CITY shall pay such invoices/reimbursement requests within thirty (30) days after receipt thereof provided CITY is satisfied that such expenses have been incurred and documented within the scope and provisions of this Agreement and that SUBRECIPIENT is in compliance with the terms and conditions of this Agreement. Failure to provide any of the required documentation and reporting will cause CITY to withhold all or a portion of a request for reimbursement, or return the entire reimbursement package to SUBRECIPIENT, until such documentation and reporting has been received and approved by CITY. Documentation may include, but is not limited to, true copies of invoices, receipts, canceled checks, bank statements, credit card statements, procurement documentation for goods or services, timesheets, payroll records, benefit statements, agreements, contracts or documentation pertaining to costs for subcontractors, and/or other documentation supporting and evidencing how the CDBG FUNDS have been expended during the applicable quarter. B. Audit of Account. CITY shall include an audit of the account maintained by SUBRECIPIENT in CITY's annual audit of all CDBG FUNDS in accordance with Title 24 of the Code of Federal Regulations and other applicable federal laws and regulations. C. Common Rule: Pursuant to 2 CFR 200.328(a), the CITY manages the day-to-day operations of each grant and subgrant supported activities. CITY staff has detailed knowledge of the grant program requirements and monitors grant and subgrant supported activities to assure compliance with Federal requirements. Such monitoring covers each program, fimction and activity and performance goals are reviewed periodically. D. Environmental Review: In accordance with 24 CFR 58, the CITY is responsible for undertaking environmental review and maintaining environmental review records for each applicable project. E. Performance Monitoring: CITY shall monitor the performance of SUBRECIPIENT against goals and performance standards required herein. The SUBRECIPIENT shall be responsible to accomplish the levels of performance as set forth in Exhibit A and report such measures quarterly to the CITY. If the SUBRECIPIENT estimates such goals will not be met, the SUBRECIPIENT is to contact the CITY, at which time the CITY will determine if any adjustments to the grant award is appropriate. Substandard performance as determined by the CITY will constitute non-compliance with this �• ' • I • Agreement. Should the CITY determine that the SUBRECIPIENT has not performed its obligations as stated in this contract in a satisfactory manner, or if the CITY determines that insufficient supporting information has been submitted, the CITY shall notify the SUBRECIPIENT in writing of its determination specifying in full detail the objections which it has to the SUBRECIPIENT's performance. If action to correct such substandard performance is not taken by the SUBRECIPIENT after being notified by the CITY, within a reasonable period of time as stipulated in the written notification, contract suspension or termination procedures will be initiated. A. SUBRECIPIENT agrees to comply with Executive Order 11246 which requires that during the performance of this Agreement, SUBRECIPIENT agrees not to discriminate against any employee or applicant for employment because of race, religion, sex, color or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer, rates of pay or other forms of compensation, and selection for training, including apprenticeship. SUBRECIPIENT agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the SUBRECIPIENT setting forth the provisions of this nondiscrimination clause. B. SUBRECIPIENT agrees to comply with Title VI of the Civil Rights Act of 1964 which indicates that no person shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program of activity receiving federal financial assistance. C. No person shall, on the grounds of race, sex, creed, color, religion, marital status, national origin, age, sexual orientation, or physical or mental handicap be excluded from participation in, be refused the benefits of, or otherwise be subject to discrimination in any activities, programs or employment supported by this Agreement. SUBRECIPIENT is prohibited from discrimination on the basis of age or with respect to an otherwise qualified handicapped person as provided for under Section 109 of the Housing and Community Development Act of 1974, as amended. D. SUBRECIPIENT agrees to comply with the Age Discrimination Act of 1975 which requires that during the performance of this Agreement, SUBRECIPIENT agrees not to discriminate against any employee or applicant for employment because of age. Such action shall include, but not be limited to the following: employment upgrading, demotion, or transfer, rates of pay or other forms of compensation, and selection for training, including apprenticeship. SUBRECIPIENT agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the SUBRECIPIENT setting forth the provisions of this age discrimination clause. E. SUBRECIPIENT agrees to comply with Section 504 of the Rehabilitation Act of 1973 which requires that no otherwise qualified individual with a disability in the United States, shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity conducted by any executive agency or by the United States Postal Service. Pursuant to the conflict of interest requirements set forth in 24 CFR 570.611 and 2 CFR 200,112, SUBRECIPIENT certifies that no member, officer, employee, agent or assignee of CITY having direct or indirect control of any CDBG monies granted to the CITY, inclusive of the subject CDBG FUNDS, shall serve as an officer of SUBRECIPIENT. Further, any conflict or potential conflict of interest of any officer of SUBRECIPIENT shall be fully disclosed in writing prior to the execution of this Agreement and said writing shall be attached and deemed fully incorporated as a part hereof. Notice shall be sent by SUBRECIPIENT to CITY regarding any changes or modifications to its board of directors and list of officers. V. SPECIAL CERTIFICATION FOR RELIGIOUS ENTITIES If SUBRECIPIENT is a religious entity, SUBRECIPIENT hereby agrees that in connection with the provision of the services SUBRECIPIENT shall provide with CDBG funds, in accordance with 24 CFR 570.2000): A. SUBRECIPIENT shall not discriminate against any employee or applicant for employment on the basis of religion and shall not limit employment or give preference in employment to persons on the basis of religion. B. SUBRECIPIENT shall not discriminate against any person applying for the services SUBRECIPIENT agrees to provide under the terms of this Agreement on the basis of religion and shall not limit such services or give preference to applicants for such services on the basis of religion. C. SUBRECIPIENT shall NOT provide religious instruction or counseling, conduct any religious worship or services, or engage in any religious proselytizing, or exert any religious influence in the provision of the services in said program. The parties agree that this covenant is intended to and shall be construed for the limited purpose of assuring compliance with respect to the use of CITY funds by SUBRECIPIENT with applicable constitutional limitations respecting the establishment of religion as set forth in the establishment clause under the First Amendment of the United States Constitution and Article I, Section 4 of the California Constitution, and is not in any manner intended to restrict other activities of SUBRECIPIENT. D. The portion of a facility used to provide public services assisted in whole or in part under this Agreement shall contain no sectarian or religious symbols. E. Where the services to be provided under said program are rendered on property owned by the primarily religious entity SUBRECIPIENT, CDBG funds may also be used for minor repairs to such property which are directly related to the cost of rendering the services under said program, where the cost constitutes in dollar terms only an incidental portion of the CDBG expenditure for rendering the services under said program. VI. PROFIIBITION OF NEPOTISM SUBRECIPIENT agrees not to hire or permit the hiring of any person to fill a position funded through this Agreement if a member of that persoris immediate family is employed in an administrative capacity by SUBRECIPIENT. For the purposes of this section, the term "immediate family" means spouse, child, mother, father, brother, sister, brother-in-law, sister-in-law, father-in-law, mother-in-law, son-in-law, daughter-in-law, aunt, uncle, niece, nephew, stepparent and stepchild. The term "administrative capacity" means having selection, hiring, supervisor or management responsibilities. VII. NOTICES Notices to the parties shall, unless otherwise requested in writing, be sent by U.S. Mail, postage prepaid, and addressed as follows: TO CITY: City of Santa Ana Community Development Agency (M-25) 20 Civic Center Plaza 10 60A-50 P.O. Box 1988 Santa Ana, California 92702-1988 TO SUBRECIPIENT: Organization Contact Address Line 1 Address Line 2 Address Line 3 VM. ASSIGNABILM None of the duties of, or work to be performed by, SUBRECIPIENT under this Agreement shall be subcontracted or assigned to any agency, consultant, or person without the prior written consent of CITY. SUBRECIPIENT must submit all subcontracts and other agreements that relate to this Agreement to CITY. No subcontract or assignment shall terminate or alter the legal obligations of SUBRECIPMNT pursuant to this Agreement. Ikl 19M 1111F.1RJA1111DX" SUBRECIPIENT shall indemnify, defend and save harmless CITY, its officers, employees, agents, representatives and volunteers from and against any and all damages to or for loss of use of property and for injuries to or death of any person or persons, including property and employees or agents of CITY, and shall defend, indemnify and save harmless CITY, its officers, employees, agents, representatives and volunteers from and against any and all claims, demands, suits, actions or proceedings of any kind or nature, including, but not by way of limitation, workers compensation claims and including attorney fees and reasonable expenses for litigation or settlement, resulting from or arising out of the negligent or wrongfiil acts, errors or omissions of SUBRECIPIENT, its officers, directors, employees, agents, subcontractors and suppliers arising out of SUBRECIPIENT's performance of this Agreement. X. INSURANCE 1. Commercial General Liability. SUBRECIPIENT agrees to obtain and keep in force during the term of this Agreement a policy of comprehensive commercial public liability insurance insuring the CITY, and SUBRECIPIENT against any liability for accident, injury or death arising out of or in consequence of this Agreement. Such insurance shall be in an amount not less than One Million Dollars ($1,000,000.00) for any injury to or death of any person or persons in any single accident or occurrence. Said policy of comprehensive liability insurance shall be endorsed to provide to CITY at least thirty (30) days written notice prior to cancellation; name CITY, its officers, agents, employees, and volunteers, additional insured; and state that such coverage is primary to any other coverage or self- insurance and CITY. Governmental entities may provide proof of self-insurance. (a) Such insurance shall: (1) name the City of Santa Ana, its officers, agents, representatives, employees and volunteers as additional insured's; (2) be primary with respect to insurance or self-insurance programs maintained by the CITY; (3) contain standard separation of insured's provisions; and (4) give to CITY prompt and timely notice of claim made or suit instituted arising out of SUBRECIPIENT's operations hereunder. (b) SUBRECIPIENT shall: (1) prior to exercising any right under this Agreement, furnish properly executed certificates of insurance and additional insured endorsement to the CITY which shall clearly evidence all coverages required above; (2) provide that such insurance shall not be materially changed or terminated except on 30 days prior written notice to the CITY; (3) maintain such insurance for the period covered by this Agreement; and (4) replace such certificates for policies expiring 11 60A-51 prior to the expiration of this Agreement 2. Automobile Liability Coverage. SUBRECIPIENT shall also obtain and maintain, during the effective period of this Agreement, broad form automobile liability coverage with a $1,000,000 limit unless reduced by CITY, which applies to both owned/leased and non -owned automobiles used by SUBRECIPIENT employees or participants in performance of this Agreement, or, in the event that SUBRECIPIENT will not utilize such owned/leased automobiles but intends to require employees, participants or other agents to utilize their own automobiles in the performance of this Agreement, SUBRECIPIENT shall secure and maintain on file from all such employees, participants, or agents as self -certification of automobile insurance coverage. Governmental entities may provide proof of self- insurance. 3. Workers' Compensation. If SUBRECIPIENT is an "employer", as set forth in California Labor Code Section 3300 et seq., or utilizes participants as "employees," as set forth in California Labor Code Section 3350 et seq., SUBRECIPIENT shall obtain and keep in force during the term of this Agreement full Workers' Compensation insurance coverage for injuries suffered by participants. Said insurance policy shall guarantee CITY at least thirty (30) days written notice of cancellation or modification. 4. Equipment Coverage. SUBRECIPIENT shall purchase a policy or policies of insurance covering loss or damage to any and all Equipment provided to or purchased by SUBRECIPIENT in accordance with this Agreement. Said insurance shall be in the amount of the full replacement value thereof, providing protection against the classification of fire, extended coverage, vandalism, malicious mischief, theft, and special extended perils. Governmental entities may substitute a certificate of self- insurance. 5. Proof of Insurance. Certificates and endorsements must be submitted and approved by CITY prior to any work under this Agreement. SUBRECIPIENT understands that CITY will make no payments under this Agreement until the required certificates and endorsements have been approved by CITY. XI. REVERSION OF ASSETS A. Upon the expiration of this Agreement, SUBRECIPIENT shall transfer to CITY any CDBG funds on hand at the time of the expiration of this Agreement as well as any accounts receivable attributable to the use of CDBG funds. [24 CFR 570.503(b)(7)] B. Any real property under SUBRECIPIENT's control that was acquired or improved in whole or in part with CDBG funds in excess of $25,000.00 must either be: 1. Used, where CTTY has given written approval, to meet one of the national objectives stated in 24 CFR 570.208 until five (5) years after expiration of this Agreement, or for such longer period of time as determined to be appropriate by CITY, or 2. If not used in accordance with subparagraph 1 above, SUBRECIPIENT shall pay to CITY an amount equal to the current fair market value of the property less any portion of the value attributable to the expenditure of non-CDBG funds for acquisition of, or improvement to, the property. Such payment is program income to CITY. C. Subject to the obligations set forth herein, title to equipment acquired under the terms of this Agreement will vest upon acquisition in SUBRECIPIENT. When said equipment which has been acquired 12 60A-52 in accordance with this Agreement and all applicable regulations is no longer needed for said program, disposition of said equipment will be made as follows: 1. Items of equipment with a current per unit fair market value of less than $5,000.00 may be retained, sold or otherwise disposed of with no further obligation to CITY. 2. Items of equipment with a current fair market per unit value of $5,000.00 or more may be retained or sold and CITY shall have the right to an amount calculated by multiplying the current market value or proceeds from the sale by CITY's share of federal funds used to acquire the equipment, in accordance with 2 CFR 200.313(e)(2). D. SUBRECIPMNT hereby agrees, upon the demand of CITY, to execute, acknowledge and deliver, or cause any person or entity who may have any claim to rights hereunder or under any document, instrument or agreement executed in furtherance of the services and activities to be performed hereunder, to execute, acknowledge and deliver, to CITY assignment(s), quit claim deed(s) or such other and further instruments, documents and agreements as may be necessary, in the sole and absolute discretion of MY, to vest in CITY all of SUBRECIPIENT's right, title and interest (if any it may have) in and to CITY, CDBG or other federal, state and/or local accounts or program funds or allocation of funds to which CITY is or may be entitled, either for its own account or as fiduciary or trustee for others, which were obtained for the purpose of the performance of this Agreement or any previous agreements relating to the same subject matter or activities as this Agreement, together with any instruments, loans, grants or advances by SUBRECIPIENT on behalf of MY, in furtherance of the activities hereunder or thereof. SUBRECIPIENh" s obligations and responsibilities set forth in this paragraph "XI. REVERSION OF ASSETS," and in paragraph "XII. TERMINATION" and other requirements pertaining to program income shall not be affected by the termination of this Agreement and shall survive the date of termination of this Agreement for such period of time as MY and/or HUD deems necessary for the responsibilities, duties and obligations to be performed and completed to the satisfaction of MY and HUD. XIL TERMINATION A. This Agreement maybe terminated on thirty (30) days' written notice by either party. In the event of such termination, SUBRECIPIENT shall only be entitled to reimbursement for approved expenses incurred to the effective date of termination. B. This Agreement may be suspended or terminated by CITY upon five (5) days' written notice for violation by SUBRECIPIENT of Federal Laws governing the use of Community Development Block Grant Funds. In the event of such suspension or termination, SUBRECIPIENT shall only be entitled to reimbursement for approved expenses incurred up to the effective date of suspension or termination. C. Pursuant to 2 CFR 200.340, in the event SUBRECIPIENT defaults by failing to fulfill all or any of its obligations hereunder, CITY may declare a default and termination of this Agreement by written notice to SUBRECIPIENT, which default and termination shall be effective on a date stated in the notice which is to be not less than ten (10) days after certified mailing or personal service of such notice, unless such default is cured before the effective date of termination stated in such notice. If terminated for cause, CITY shall be relieved of further liability or responsibility under this Agreement, or as a result of the termination thereof, including the payment of money, except for payment for approved expenses incurred for services satisfactorily and timely performed prior to the mailing or service of the notice of termination, and except for reimbursement of (1) any payments made for services not subsequently performed in a timely and satisfactory manner, and (2) costs incurred by CITY in obtaining substitute performance. 13 60A-53 D. The grant of funds under this Agreement may be terminated for convenience by either the CITY or SUBRECIPIENT, in whole or in part, by setting forth the reasons for such termination, the effective date, and, in the case of portion termination, their portion to be terminated. However, if in the case of a partial termination, the CITY determines that the remaining portion of the award will not accomplish the purpose for with the award was made, the CITY may terminate the award in its entirety. E. The grant of funds under this Agreement may be terminated due to the non-performance of SUBRECIPIENT and/or failure of SUBRECIPENT to perform the work described in Exhibits A and B or failure to meet the performance standards and program goals set forth therein. F. The grant of funds under this Agreement may be terminated due to the failure of the CITY to receive sufficient or anticipated funding from HUD for the CDBG program for any year term subject to this Agreement. G. In the event this Agreement is terminated as set forth in subparagraphs XII.A. through XII.F., inclusive, SUBRECIPIENT agrees to immediately return to CITY upon CITY's demand and prior to any adjudication of SUBRECIPIENT's rights, any and all funds not used, and to comply with paragraph "XI. REVERSION OF ASSETS" of this Agreement. 1ND —IM0tISIWV�iRK yOLUR1IX The United States of America, through HUD, may in the future place programmatic or fiscal limitations on the use of CDBG funds which limitations are not presently anticipated. Accordingly, CITY reserves the right to revise this Agreement in order to take account of actions affecting HUD program funding. In the event of funding reduction, CITY may, in its sole and absolute discretion, reduce the budget of this Agreement as a whole or as to costs category, may limit the rate of SUBRECIPIENT's authority to commit and spend funds, or may restrict SUBRECIPIENT's use of both its uncommitted and its unspent funds. Where HUD has directed or requested CITY to implement a reduction in funding, in whole or as to a cost category, with respect to funding for this Agreement, CITY's City Manager or delegate is authorized to act for CITY in implementing and effecting such a reduction and in revising, modifying, or amending the Agreement for such purposes. If such a reduction in funding occurs, SUBRECIPIENT shall be permitted to de -scope accordingly. Where CITY has reasonable grounds to question SUBRECIPIENT's fiscal accountability, financial soundness, or compliance with this Agreement, CITY may suspend the operation of this Agreement for up to sixty (60) days upon five (5) days written notice to SUBRECIPIENT of its intention to so act, pending an audit or other resolution of such questions. In no event, however, shall any revisions made by CITY affect expenditures and legally binding commitments made by SUBRECIPIENT before it received notice of such revision, provided that such amounts have been committed in good faith and are otherwise allowable and that such commitments are consistent with HUD cash withdrawal guidelines. XIV. EXCLUSIVITY AND AMENDMENT OF AGREEMENT This Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the use of Crl Y's CDBG funds by SUBRECIPIENT and contains all the covenants and agreements between the parties with respect to such employment in any manner whatsoever. 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, and that no other agreement or amendment hereto shall be effective unless executed in writing and signed by both CITY and SUBRECIPIENT. 14 60A-54 1010111-1110 XV. LAWS GOVERNING THIS AGREEMENT This Agreement shall be governed by and construed in accordance with the laws of the State of California, and all applicable federal laws and regulations. XVI. CLOSE-OUT The SUBRECIPIENT agrees to comply with the closeout procedures detailed in 2 CFR §200.343, including the following: 1. SUBRECIFIENT must submit, no later than ninety (90) calendar days after the end date of the period of performance, all financial, performance, and other reports as required by the terns and conditions of the Federal award; 2. Unless the CITY authorizes an extension, SUBRECIPIENT must liquidate all obligations incurred under the Federal award not later than ninety (90) calendar days after the end date of the period of performance as specified in the terms and conditions of the Federal award; 3. SUBRECIPIENT must promptly refund any balances of unobligated cash that the CITY paid in advance or paid and that is not authorized to be retained by SUBRECIPIENT for use in other projects (See OMB Circular A-129 and 2 CFR §200.345); 4. SUBRECIPIENT must account for any real and personal property acquired with Federal funds or received from the Federal government in accordance with 2 CFR §§200.310- 200.316 and 200.329; and, 5. The CITY should complete all closeout actions for the Federal award no later than one year after receipt and acceptance of all required final reports. XVH. VALIDITY AND SEVERABILITY The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. Whenever possible, each provision of this AGREEMENT shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this AGREEMENT is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions of this AGREEMENT. XVIIL WAIVER No delay or omission by either party hereto to exercise any right or power accruing upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the covenants, conditions, or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein contained. 15 60A-55 XIX. 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 My, including reasonable costs and attorney's fees, for any injuries or damages to MY in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits and Attachments referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. (Signatures on followingpage] 16 60A-56 1010111-1110 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the last date and year written below. ATTEST: CITY OF SANTA ANA DAISY GOMEZ KRISTINE RIDGE Clerk of the Council City Manager APPROVED AS TO FORM: CNIA 9 4Y AALHO M City FOR APPROVAL: SUBRECIPIENT: STEVEN MENDOZA Executive Director Community Development Agency NAME Title Tax ID: 00-0000000 DUNS #: 000000000 17 60A-57 100111-11190 Memorandum of Understanding (MOU) between SUBRECIPIENT and The City of Santa Ana W/O/R/K Center 1. PARTIES: The parties to this Memorandum of Understanding (MOU) are Subrecipient name ("Subrecipient") and the City of Santa Ana W/O/R/K Center ("Work Center"). 2. PURPOSE: The Work Center, in conjunction with Subrecipient, endeavors to establish a cooperative working relationship between the parties in order to provide program beneficiaries with information about Work Center opportunities to find better jobs and careers. The MOU serves to establish the framework for providing services to employees, job seekers and others needing workforce services. The goal is to ensure that all program beneficiaries have been provided an opportunity to connect with the Work Center and be assisted with the tools and knowledge necessary to enter the workforce or obtain a higher - paying job. 3. RESPONSIBILITIES: A) The Work Center shall perform the following: 1) Accept referrals to the Work Center. B) Subrecipient shall perform the following: 1) Provide Work Center information to participants and their families; and, 2) Refer participants in need of employment, training, or career counseling to the Work Center utilizing the referral form attached hereto as Attachment 1 and incorporated herein by reference. 4. DURATION: This MOU shall commence on July 1, 2020, and shall remain in effect through June 30, 2022. 5. AMENDMENTS: Either party may propose amendments to this MOU at any time by providing written notice to the other party. Amendments to this MOU shall require the approval of the City Manager, or her/his designee ("City Manager"), on behalf of the Work Center. 6. CONFIDENTIALITY: If Subrecipient receives information, which due to the nature of such information is reasonably understood to be confidential and/or proprietary, such information shall not be used or disclosed except in the performance of this MOU, and Subrecipient 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 non-public information. Confidential information includes not only written �. 1 101011I:1190 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 MOU. 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 Subrecipient disclosed in a publicly available source; (c) is in rightful possession of Subrecipient without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by Subrecipient without reference to information disclosed by the City of Santa Ana. 7. ACCESSABILITY: Subrecipient will assure that its services and premises are accessible to persons with disabilities pursuant to the requirements of the Americans with Disabilities Act. 8. HOLD HARMLESS CLAUSE: Each party to this MOU agrees to indemnify and hold harmless the other parties, their officers, agents, employees, and volunteers from and against any and all loss or damage, and from any and all suits, actions and claims filed or brought by any person or persons arising out of acts or omissions of the party or its officers, agents, employees or volunteers in the performance of this MOU. 9. DISPUTES: The parties shall first attempt to resolve all disputes informally. Any party may call a meeting of all parties to discuss and resolve disputes. Should informal resolution efforts fail, the dispute shall be referred to the City Manager to act as mediator, to attempt to resolve the dispute by holding an informal hearing with presentations by both parties. If the City Manager's resolution efforts fail, any party may file a grievance with the City Manager for review and hearing. The parties agree to be bound by the final determination resulting from that procedure. Each party to bear its own costs associated with any grievance procedures. 10. DISCRIMINATION: Subrecipient 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. Subrecipient affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 11. SEVERABILITY: If any part of this MOU is found to be null and void, or is otherwise stricken, the rest of this MOU shall remain in force. 12. JURISDICTION: Jurisdiction over any disputes arising under this MOU shall reside in Orange County, California. 13. AUTHORITY AND SIGNATURES: The individuals signing this MOU or its attachments have the authority to commit the parry they represent to the terms of this MOU, and do so commit by signing. 60A-59 100111-11190 IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of Understanding the date and year first above written. ATTEST: DAISY GOMEZ Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City,Affq1nrry (� City RECOMMENDED FOR APPROVAL: STEVEN MENDOZA Executive Director Community Development Agency CITY OF SANTA ANA a municipal corporation of the State of California KRISTINE RIDGE City Manager Subrecipient Name XXXX Executive Director CARLOS DE LA RNA Center Director Santa Ana WORK Center 3 WNIMn:1111:6 SANTA ANA W(ORK CENTER Referral Form My Next Move Whether you are looking for A JOB or to LEARN A NEW SKILL, the WORK Center can help! • Find a Job • Upgrade Skills • Get Career Counseling • Access to Community Services Attend the My Next Move Workshop and connect with us! Workshops take place on Tuesdays at 9:30AM to 10:30AM (English) and 2:OOPM to 3:OOPM (Spanish). ►5TIMM Referring Organization: Workshop Date: Ir, Santa Ana WORK Center ♦ 801 West Civic Center, Santa Ana, CA 92701 714-565-2600 ATTACHMENT 60A-61 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2020 TITLE: APPROVE ISSUANCE OF THE DRAFT SOLID WASTE SERVICES REQUEST FOR PROPOSALS, APPROVE A ONE-YEAR EXTENSION OF THE SOLID WASTE SERVICES AGREEMENT WITH WASTE MANAGEMENT, AND AUTHORIZE A PROPOSITION 218 PROCESS /s/Kristine Ridge CITY MANAGER CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 111 Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER RECOMMENDED ACTION 1. Approve issuance of the Draft Solid Waste Services Request for Proposals to maintain the established implementation timeline, subject to non -substantive changes. 2. Approve a one-year extension June 30, 2021 through June 30, 2022 of the Solid Waste Services agreement with Waste Management that includes alternate programming for green waste diversion to maintain compliance with State legislation. 3. Authorize and direct staff to prepare all required documents necessary to proceed with notification of proposed refuse rate adjustments in compliance with Proposition 218 requirements, including, but not limited to, the following: a) Prepare and mail proposed rate adjustment notices to all Santa Ana property owners with cart service in compliance with Proposition 218 requirements at cost not to exceed $20,000; b) Schedule a public hearing at a future Council meeting, on or after April 21, 2020; c) Prepare all other documents required to proceed with proposed refuse rate adjustments. DISCUSSION The City's agreement for collection and handling of solid waste with Waste Management (WM) is due to expire on June 30, 2021. The Public Works Agency and its consultant, HF&H Consultants, LLC (HF&H), have developed a draft Request for Proposals for City solid waste services that will provide appropriate refuse collection and disposal for Santa Ana that considers recycling trends and compliance with State legislation. L. 1 Approve Issuance of the Solid Waste Services RFP, One-year Extension of the Solid Waste Services Agreement with Waste Management, and Authorize Prop 218 Process March 3, 2020 Page 2 Request for Proposals The draft Request for Proposals (RFP) is attached for review and approval (Exhibit 1). The following summarizes the current and proposed new services/components in the RFP scope: Residential Current Services • Three -cart program • Curbside bulky item collection • Up to 300 40-yard containers annually for City -sponsored neighborhood clean-ups Additional Services • Curbside used oil and filter collection • Curbside universal waste collection • Sharps disposal • Compost giveaways and shredding events • Expanded curbside bulky item collection • Curbside organics collection program to comply with SB 1383 Commercial, Multi -family, and Industrial Current Services • Commercial, multi -family, and industrial collection services • Recycling at a cost savings • Bulky item collection for a fee Additional Services (Required to Meet State Mandates) • Establish programming to comply with AB 939 Integrated Waste Management Act • Establish programming to comply with AB 341 Mandatory Commercial Recycling • Establish programming to comply with AB 1826 Mandatory Organics Recycling • Establish programming to comply with SB 1383 Short-lived Climate Pollutants • Establish programming to comply with Future State mandates Other Services Current Services • Every -other -week alley clean-ups • Clean-ups after garage sale weekends • Grant administration • Public education and outreach Additional Services • Weekly alley clean-ups • Small battery recycling collection at City facilities • Dedicated Recycling Coordinator/s • Construction and demolition services option �. 1 Approve Issuance of the Solid Waste Services RFP, One-year Extension of the Solid Waste Services Agreement with Waste Management, and Authorize Prop 218 Process March 3, 2020 Page 3 One -Year Extension The one-year extension with WM, from July 1, 2021, to June 30, 2022, accommodates an expanded RFP process timeline. This timeline will provide four months for proposal preparation, which for a city the size of Santa Ana, is adequate. Proposal evaluation and interviews will be conducted over a six-month period allowing sufficient time considering the intricacies of proposals and the unknown number of proposers. Most importantly, this expanded timeline is recommended due to purchasing impacts in the manufacture and delivery of the new trucks and carts, which are required in the RFP. Markets have seen an extended delivery time, as other municipalities prepare for compliance with new legislation. The extension also addresses the requirements of Assembly Bill 1594 (AB 1594). Effective January 1, 2020, AB 1594 eliminated diversion credit for green waste sent to County landfills as Alternative Daily Cover (ADC). Previously, WM delivered green waste collected from the City's customers to the Tierra Verde Industries green waste processing facility for grinding and transfer to the Orange County Landfill System for use as ADC. WM provided this service at no charge to customers, and the City received diversion credit. Under the new requirements of AB 1594, WM will continue to deliver green waste to Tierra Verde, however the material will be composted, providing the City with diversion credit to maintain compliance with State mandates. WM will provide this service at no cost to ratepayers through June 30, 2020. Upon successful completion of a Proposition 218 process, a rate adjustment of $1.90 per residential unit per month will occur effective July 1, 2020. A second rate adjustment of $1.50 per residential unit per month will occur effective July 1, 2021. The total two-year rate adjustment for this service equals $3.40 per residential unit per month. The City continues to retain the right to choose the location for the delivery of green waste and that the rate paid by the ratepayer will be reduced or increased accordingly, based on transportation and processing costs. Rate Design In recent years, the legal requirements surrounding solid waste service providing agencies rate setting in California have evolved. Namely the courts have made rulings with respect to California Constitution Article XIII C and D (commonly known as Proposition 218) that have created a higher "cost of service" standard for rate setting than has historically been practiced by public agencies. Simply put, the burden of proof is on agencies to demonstrate that all aspects of refuse rates are directly proportionate to the cost of providing service. This means aligning fixed revenue (fixed charges) with fixed costs. The proposed refuse rate increases for curbside cart service are structured to directly align with the refuse utility's (WM) increased cost for composting green waste. Refuse rates for cart customers are proposed to be fixed for all curbside customers. This cost increase is a direct pass - through to ratepayers. The proposed rate revenue adjustments outlined below support the cost of composting green waste to maintain compliance with State mandates: Approve Issuance of the Solid Waste Services RFP, One-year Extension of the Solid Waste Services Agreement with Waste Management, and Authorize Prop 218 Process March 3, 2020 Page 4 Implementation Date Increase Amount" July 1, 2020 $1.90 July 1, 2021 $1.50 'These amounts do not consider the standard annual CPI adjustment in the solid waste agreement with WM and the Waste Disposal Agreement with County of Orange. Typical Bill Impact The financial impact of the proposed revenue adjustments on the typical customer was carefully evaluated. The typical bill of a curbside cart customer will be increased by $1.90 per month, effective July 1, 2020, and increased by an additional $1.50 per month effective July 1, 2021. These rate increases are based on actual cost of service. When compared to neighboring cities, the typical Santa Ana customer will continue to pay a similar amount, on average, for curbside cart service as compared to its neighboring cities such as Garden Grove, Brea, Fullerton and Yorba Linda. Staff recommends approval of the Draft Solid Waste Services Request for Proposals to maintain the Solid Waste Services Implementation Timeline (Exhibit 2), approval of the one-year extension of the Solid Waste Services agreement with WM that includes alternate programming for green waste diversion to maintain compliance with State legislation (Exhibit 3), and approval to prepare all required documents necessary to proceed with notification of proposed refuse rate adjustments, in compliance with Proposition 218 requirements. STRATEGIC PLAN ALIGNMENT Approval of these items support the City's efforts to meet Goal #4 - City Financial Stability, Objective #1 (maintain a stable, efficient and transparent financial environment). ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. However, increased recycling activity will divert materials from the landfill, thus extending the life of the landfill system and recovering valuable recyclable resources. FISCAL IMPACT To cover costs incurred for preparing and mailing the Proposition 218 notices, $20,000 has been budgeted and is available for expenditure in Fiscal Year 2019-20 in the Refuse Enterprise as follows: FISCAL ACCOUNTING ACCOUNTING UNIT, YEAR UNIT -ACCOUNT FUND DESCRIPTION ACCOUNT DESCRIPTION AMOUNT # Refuse Collection Service, 06917640- Refuse Collection FY 2019-20 Miscellaneous Operating $20,000 63001 Service Expenses TOTAL: $20,000 �. 1 Approve Issuance of the Solid Waste Services RFP, One-year Extension of the Solid Waste Services Agreement with Waste Management, and Authorize Prop 218 Process March 3, 2020 Page 5 APPROVED AS TO FUNDS AND ACCOUNTS: Nabil Saba, PE Kathryn Downs, CPA Acting Executive Director Executive Director Public Works Agency Finance and Management Services Agency NS/MLM/CK Exhibits: 1. Draft Solid Waste Services RFP 2. Solid Waste Services Implementation Timeline 3. Second Amendment of the Solid Waste Services agreement with Waste Management EXHIBIT 1 DRAFT THE CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR COLLECTION AND HANDLING OF SOLID WASTE GENERATED, PRODUCED AND/ OR ACCUMULATED IN THE CITY OF SANTA ANA Draft, February 11, 2020 The City of Santa Ana is requesting proposals for collection, transportation, recycling, and disposal of residential and commercial solid waste, recyclables, and organic waste. The Request for Proposals ("RFP") package can be obtained through PlanetBids at https: / / www.Plane tbids.com/ portal/ portal.cnn? CompanyID=20137.c om. A Pre -Proposal conference will he held at 2:00 p.m. on March 18, 2020 at the City of Santa Ana Ross Annex, Room 1600, 1st Floor, located at 20 Civic Center Plaza, Santa Ana, CA. Proposals will be received until 4:00 p.m. on June 19, 2020. Proposals must be delivered to the attention of Christy Kindig at 20 Civic Center Plaza, Santa Ana, California 90260. THE CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR COLLECTION AND HANDLING OF SOLID WASTE GENERATED, PRODUCED AND/OR ACCUMULATED IN THE CITY OF SANTA ANA DRAFT, February 11, 2020 Prepared by: (m HF&H Consultants, LLC 19200 Von Karman, Suite 360 Irvine, CA 92612 Telephone: 949/ 251-8628 �. 1 CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR COLLECTION AND HANDLING OF SOLID WASTE GENERATED, PRODUCED AND/OR ACCUMULATED IN THE CITY OF SANTA ANA TABLE OF CONTENTS SECTION I -INTRODUCTION.................................................................................................I SECTION II — CURRENT SERVICE DATA SECTION III — PROPOSED SERVICE REQUIREMENTS 8 10 Residential Collection Service Requirements (Residential Curbside Service Units) ..................10 Commercial Collection Service Requirements (Including Multi -Family Properties of 3 or MoreUnits)............................................................................................................................................11 City Government Operations.............................................................................................................13 CommunityServices............................................................................................................................14 OptionalServices..................................................................................................................................14 SECTION IV —KEY CONTRACT TERMS.............................................................................15 HolidayCollection................................................................................................................................15 Education and Public Awareness.......................................................................................................15 Container Specifications and Distribution........................................................................................15 Faithful Performance Bond.................................................................................................................15 Draft, February 11, 2020 City of Santa Ana Faithful Performance Letter of Credit...............................................................................................15 Insurance Requirements......................................................................................................................15 Reportingand Auditing......................................................................................................................16 Collection Vehicle Requirements.......................................................................................................16 DedicatedRefuse Routes.....................................................................................................................16 Fees.........................................................................................................................................................16 Billing.....................................................................................................................................................17 RateAdjustment Method....................................................................................................................17 Minimum Diversion Rates..................................................................................................................17 SECTION V - PROPOSAL SUBNIISSION REQUIREMENTS............................................18 1. General Requirements.................................................................................................................18 2. Rate Proposal Forms (Attachment 3).........................................................................................18 3. Supporting Costs and Operating Data Worksheets (Attachment 4)....................................18 4. Agreement Signature Page and Exceptions..............................................................................19 5. Proposer Overview......................................................................................................................19 6. Facility Descriptions Required in Proposal..............................................................................22 7. Implementation Plan....................................................................................................................23 8. AB 341, AB 1826, and SB 1383 Implementation Plan..............................................................23 9. Customer Service/Customer Center Procedures....................................................................23 10. Automated Cart Description...................................................................................................24 11. Collection Vehicle Description...............................................................................................24 12. Minimum Recycling Requirements.......................................................................................24 13. Food Rescue and Donation Program....................................................................................24 14. Organic Waste Recycling Program........................................................................................24 15. Multi -Family Bulky Item Collection......................................................................................25 16. Recyclable Materials.................................................................................................................25 17. Procurement of Recovered Organic Waste Products..........................................................25 18. Employment of Prior Contractor Employees.......................................................................25 19. Optional Program: Processing of Mixed Waste...................................................................25 20. Optional Service: Citywide Construction and Demolition Debris Collection and DiversionServices................................................................................................................................26 21. Proposal Enhancements...........................................................................................................26 SECTION VI - PROPOSAL EVALUATIONS Proposex's Qualifications....................................................................................................................27 TechnicalQualifications......................................................................................................................27 Exceptions to the Terms and Conditions..........................................................................................27 FinancialResources..............................................................................................................................27 Costs.......................................................................................................................................................27 Employment..........................................................................................................................................27 Award....................................................................................................................................................27 Draft, February 11, 2020 ii City of Santa Ana TABLE OF FIGURES Table 1: Requested Services......................................................................................................................2 Table 2: Procurement Schedule................................................................................................................7 LIST OF ATTACHMENTS Attachment 1: Proposal Outline Attachment 2: Existing Service Data Attachment 3: Rate Proposal Forms Attachment 4: Supporting Cost and Operating Data Worksheets Attachment 5: Anti -Collusion Affidavit Attachment 6: Draft Agreement for the Collection and Handling of Solid Waste Generated, Produced and/or Accumulated in the City of Santa Ana Attachment 7: Current Rate Schedule Attachment 8: City of Santa Ana Green Policy Attachment 9: Current AB 341 and AB 1826 Public Education and Outreach Plan Attachment 10: Map of Property Annexed to the City of Santa Ana in December 2019 Attachment 11: Universal Waste Collected in Calendar Years 2015 through 2018 Attachment 12: Pounds of Batteries Collected in Calendar Years 2015 through 2018 Available on P1anetBids: Current Solid Waste Franchise Agreement with Waste Management Current Agreement for Collection and Handling of Construction and Demolition Debris Agreement with Welldyne/Rx West, Inc. for Professional Services "Sharps Program' Agreement to Provide Residential Universal Waste Collection Agreement to Provide Small Battery Recycling Most Recent Current Haulers Annual Report Results of the City of Santa Ana's Solid Waste Survey Draft, February 11, 2020 City of Santa Ana OVERVIEW OF THE BEQUEST FOR PROPOSAL The City of Santa Ana (City) is requesting proposals from qualified solid waste companies to provide solid waste collection, transportation, recycling, processing, and disposal services. Waste Management (WM) currently provides the City with exclusive residential and commercial collection services, including permanent and temporary roll -off and bin service (excluding temporary construction and demolition debris service), and construction and demolition debris which is generated from City government operations. Construction and demolition debris generated at a temporary construction site and removed using roll -off boxes or bins, other than that generated by City government operations, is non-exclusive, and these services are currently provided by WM and Ware Disposal (Ware). STRATEGIC PARTNERSHIPS/'SUBCONTRACTING ARRANGEMENTS Due to the geographic size and tonnage volumes inherent in serving the City, proposers may propose to create strategic business alliances or subcontracting arrangements with one or more parties. This option is meant to encourage proposers to look into innovative methods that create positive enhancements to all parties, beginning with the City s customers, and our environment. Proposers may provide a proposal in one of two ways: 1. As an exclusive services provider, or 2. As lead services provider with subcontractors in and around the greater Orange County Area that offer specialized or unique collection methods, processing infrastructure, data management, customer outreach, or other services. Any such arrangement must be submitted by a single entity which shall bear complete responsibility for the performance of the alliance within the franchise agreement. 1 t��\MAT: The initial term of the new agreement is ten years. The City and Contractor may, by mutual agreement, extend the term of the agreement for an additional five years at the end of the initial term. City may, in its sole discretion, authorize an extension of up to thirty-six (36) months prior to the expiration of the initial or extended term of the agreement. Services under the new agreement will begin July 1, 2022. See Sections 2.4 and 2.5 of the draft agreement. SUMMARY OF REQUESTED SERVICES A description of the service area is included in Section II of this REP. Existing service data provided by WM, Ware and the City is included in Attachments 2 and 3. The services for which the City is seeking proposals are summarized in Table 1 below and are briefly described in Section III of this REP. A more comprehensive description of the scope of services is found in the draft franchise agreement in Attachment 6. Draft, February 11, 2020 1 City of Santa Ana 60B-11 Table 1: Requested Services CUSTOMER TYPE SERVICE DESCRIPTION Residential ♦ Automated Refuse Collection Services (single- ♦ Automated Recyclables Collection family residents and multi -family ♦ Automated Organics Collection, including Future Food Waste premises with Program carts "Residential ♦ Holiday Tree Collection Curbside Service Units") ♦ Walk -Out Service ♦ Bulky Item Collection, including E-Waste ♦ Sharps Collection ♦ Used Motor Oil and Used Motor Oil Filter Collection ♦ Universal Waste Collection ♦ Recycling Reward Program Commercial and ♦ Permanent and Temporary Refuse Bin Collection (excluding C&D) Multi -Family ♦ Permanent and Temporary Roll -off Box Collection (excluding Services C&D) ♦ Commercial Cart Collection ♦ Recycling and Organic Waste Programs to Comply with CalRecycle Regulations ♦ Bulky Item Collection, including E-Waste ♦ Holiday Tree Collection - Multi -Family Customers Only ♦ Scout Service ♦ Bin Push -Out Service ♦ Locking Lids Draft, February 11, 2020 City of Santa Ana 60B-12 CUSTOMER SERVICE DESCRIPTION TYPE City Government ♦ Refuse, Recyclables, Organics, Electronic Waste, and Construction Operations and Demolition Debris Collection from City Government Operations ♦ City -Sponsored Events ♦ Parkway Cleanup Following Quarterly Garage Sales ♦ Weekly Alley Cleanups ♦ Grant Administration ♦ Battery Recycling Program Community ♦ Neighborhood Cleanups - up to 300 roll -off boxes per year Services ♦ Annual Household Hazardous Waste Drop -Off Event ♦ Annual Shredding Event ♦ Annual Compost Giveaway Event ♦ Medication Take -Back Program ♦ Environmental Ambassador Program ♦ Santa Ana Green Quarterly Newsletter Optional Services ♦ Exclusive Temporary Construction and Demolition Debris Services ♦ Processing of Mixed Commercial Waste Section V of this RFP describes the required contents of the proposal. Failure to complete and submit all of the forms and the other information required in Section V may be grounds to disqualify a proposal. The proposal should be organized according to the outline shown in Attachment 1. Please note that the City s procurement of the services described herein is not subject to state or local public bidding laws, and the City does not intend to cause the current RFP process to become subject to such public bidding laws or regulations. PROPOSAL CLARIFICATIONS AND UPDATES After reviewing the RFP package, proposers may find that they require clarification of some requirements. Proposers may submit oral or written questions. Written responses to such questions, addenda and clarifications, if any, will be provided via e-mail, or via P1anetBids, to all potential proposers that provide their contact information when requesting the RFP. Proposers should provide the primary contact name, company name, address, e-mail address, Draft, February 11, 2020 3 City of Santa Ana 60B-13 and phone number to the City if proposers wish to receive answers to questions and other RFP addenda. Only written responses will govern. Written questions may not be accepted after the date shown in the schedule in Table 2 at the end of this section, as this would leave insufficient time for the City to provide an adequate response to all potential proposers. However, if proposers have simple questions regarding how to complete submittal forms or otherwise complete the proposal requirements, proposers may continue to request assistance via telephone until the proposal due date. See "Communication Protocol During RFP Process' below for instruction on where to submit questions. COMMUNICATION PROTOCOL DURING RFP PROCESS Questions regarding this RFP shall be made in writing via the City's PlanetBids vendor portal. No phone inquiries will be accepted, excepting questions regarding completion of proposal forms, which shall be directed to Laith Ezzet at lezzet@hfh-consultants.com. PROPOSAL ADMINISTRATION The City of Santa Ana shall have the right to perform, and each proposer must agree to cooperate with, an investigation and review of each proposer's ability to perform the work required. Such cooperation shall apply not only to the verification of the proposer's capability and experience in the provision of services, but also to the provision of any other component of work that may be required under this procurement. In order to objectively evaluate all proposals, the City has attempted to describe the desired services and the terms and conditions in the draft franchise agreement in a manner that will allow a reasonable level of comparability among the proposals. Therefore, the City discourages, and may disqualify, proposals that substantially deviate from the RFP. Proposals that do not include the completed forms required herein and information required in Section V may be disqualified. Provided that the proposer has submitted a proposal that meets all of the minimum requirements of this RFP, the proposer may also offer additional enhancements that exceed the RFP requirements. The City reserves, at its sole discretion, the right to reject all proposals, disqualify nonconforming or incomplete proposals, waive deviations from the RFP, and determine whether proposers are qualified. The City reserves the right to issue addenda to the RFP, to modify the RFP, to modify the franchise agreement, or to withdraw the RFP. The City and HF&H may request clarification or additional information from any of the proposers at any point in the RFP process. Proposals must comply fully with the requirements detailed in this RFP. Required supporting documentation must be included as attachments and be appropriately identified. The existing service information presented in Section II and Attachments 2 and 3 of this RFP is for information only and the proposer agrees to indemnify and hold the City harmless for the accuracy of this data. All proposers should take whatever steps they believe are necessary to reasonably establish the actual existing service information when preparing their proposals. Draft, February 11, 2020 4 City of Santa Ana �. 1 Note: The CiVs existing solid waste contractor is in the process of performing a residential and commercial curbside cart audit. If an update to the container count becomes available prior to proposal submittal, an addendum to the RFP with updated container data will be provided. SUBMISSION OF PROPOSALS The draft franchise agreement containing the terms and conditions under which service will be provided (see Attachment 6) is an integral part of this RFP. This franchise agreement includes information related to service standards, rate setting, billing, reporting, and other activities related to the performance of these services. Submission of a proposal shall constitute acknowledgment and acceptance of all the terms and conditions contained in this RFP, and in the draft franchise agreement, unless exceptions to particular terms and conditions are expressed in writing in the proposal. The successful proposer will be expected to enter into a franchise agreement with the City, only those exceptions noted in its proposal will be considered for modification. The City is not obligated to agree to these exceptions, but reserves the right to negotiate modification of such noted exceptions to the draft franchise agreement. Each and every term and condition of the proposal shall be irrevocable until the City enters into a franchise agreement to perform the scope of services for the proposed rates according to those terms and conditions. Within fifteen (15) business days of the selection of a proposal by the City Council, the selected proposer is bound to execute the franchise agreement, and furnish the required performance bond and letter of credit. The form of the financial instruments is described in Sections 9.5 and 9.6 of the draft franchise agreement. Within thirty (30) days following execution of the franchise agreement, and in any event prior to the performance of any services thereunder, the proposer is bound to provide evidence of all required insurance (see Section 9.4 of the draft franchise agreement). The terms of this RFP and the proposals are firm for a period of three hundred and sixty-five (365) days. Once submitted, responses to this RFP cannot be altered without the City's express written consent. The City reserves the right to reject any or all proposals, and may elect to make a decision without further discussion or negotiation. This RFP is not to be construed as a contract of any kind. The City is not liable for any costs incurred by any potential proposer in the preparation of a response to this RFP. The City may withdraw or modify this request at any time. Proposers must submit four (4) bound copies, one (1) original with a "wet signature marked "Original," one (1) unbound photocopy -ready copy, and an electronic copy on a flash (thumb) drive of the complete proposal. Electronic copy must be in searchable PDF format as a single document. Proposals shall be mailed, hand delivered, or sent via courier service. Cost proposals shall be in separate sealed envelope. Proposals shall be enclosed in a sealed envelope and marked clearly with the following information, formatted as follows: Draft, February 11, 2020 5 City of Santa Ana 60B-15 "SEALED PROPOSAL FOR REQUEST FOR PROPOSALS FOR COLLECTION AND HANDLING OF SOLID WASTE GENERATED, PRODUCED AND/OR ACCUMULATED IN THE CITY OF SANTA ANA RFP NO. 19-XXX DO NOT OPEN WITH REGULAR MAIL." City of Santa Ana Attn: Christy Kindig Public Works Agency 20 Civic Center Plaza; 4�b Floor Reception, Ross Annex, M-21 Santa Ana, CA 92701 It is the responsibility of the proposer to ensure that any proposal submitted has sufficient time to be received by the City of Santa Ana prior to the proposal due date and time. Proposals shall NOT be sent via fax or email. All proposals must be received by the Public Works Agency of Santa Ana by the date and time shown in the schedule in Table 2 at the end of this section, City of Santa Ana time. Proposals received after this time and date may be returned unopened. Postmarks will not be accepted as proof of receipt. All notifications, updates and addenda will be posted electronically on the City's PlanetBids vendor portal accessible through the following link: htti)s://www.planetbids.com/portal/portal.cfm?CompanyID=2013 7. Any addenda issued shall be taken into account in the bid and shall be made a part of the Contract. Addenda may be issued by the City for any reason. Failure to respond to required updates may result in a determination of a nonresponsive proposal. Proposers shall be responsible for monitoring the site to obtain information regarding this solicitation. The current franchise agreements (including the solid waste and recycling agreement, C&D agreement, sharps agreement, universal waste agreement, and battery agreement), the most recent franchised hauler annual report, the results of the City's solid waste survey will be made available on PlanetBids. AWARD To he considered, proposals must be complete and must conform to the requirements of this RFP as to form and content. The franchise agreement will be awarded to the proposer that the City Council determines will best assist the City to reach its goal of receiving the highest quality service at the lowest reasonable cost. The successful proposal may or may not be the lowest cost proposal. The City, however, reserves the right to reject any or all proposals, to accept or reject any one or more items of a proposal, or to waive any minor irregularities or informalities in the proposal. Draft, February 11, 2020 6 City of Santa Ana SCHEDULE The procurement schedule is shown in Table 2. These dates are subject to change by the City. Table 2: Procurement Schedule Date Activity March 11, 2020 Release of RFP March 18, 2020 Pre -Proposal Meeting at 2:00 p.m. March 31, 2020 Last day to submit written questions June 19, 2020 Proposals due to the Public Works Agency by 4:00 p.m. June 2021 Award by City Council` July 1, 2022 Start of service Award subject to completion of Proposition 218 process. Draft, February 11, 2020 City of Santa Ana 60B-17 DESCRIPTION OF SERVICE AREA The City of Santa Ana encompasses 27.5 square miles and is bounded by the City of Orange to the north, the cities of Garden Grove, Westminster, Midway City, and Fountain Valley to the west, the City of Tustin to the east, the City of Irvine to the southeast and the City of Costa Mesa to the southwest. According to the California Department of Finance, population and housing estimates for the City as of January 1, 2019 are as follows: Population: 337.716 Single Family Detached 35,692 Total Dwelling Units 78,563 Single Family Attached 5,799 Percent Vacant 4.1% Multi -Family 2 to 4 Units 7,563 Persons per Household 4.42 Multi -Family 5 Plus Units 25,400 Mobile Homes 4,049 This census information is meant to provide an overview of the City. Please see Attachments 2-A through 2-D, and 3-B through 3-M for data regarding customer and container counts. PROJECTED NEW DEVELOPMENTS According to the City s Draft Housing Element, the City has an estimated residential growth rate of 2% per year and an estimated commercial growth rate of 2% per year for the period of 2020 to 2030. PROPERTY ANNEXED TO THE CITY IN DECEMBER OF 2019 The City annexed parcels of property previously located in the unincorporated area of Orange County in December of 2019. A map of annexed area is included as Attachment 10. CURRENT SERVICE DATA The City has obtained from WM and/or provided from its own records, the data provided in Attachments 2 and 3. Existing subscription levels are contained in rate proposal forms in Attachment 3. As stated in Section I, the City neither warrants nor accepts responsibility for the accuracy of the information. It is the responsibility of each proposer to undertake, at its sole cost, any verification of this information necessary for it to submit a response to this RFP. CURRENT RATES The current residential rates effective July 1, 2019 are shown in Attachment 7. Draft, February 11, 2020 City of Santa Ana RATE REVENUES Total residential and commercial rate revenue is included as Attachments 2-I and 2-J. AB 939 PLANS The City is committed to fully complying with AB 939, AB 341, AB 1826, AB 1594, and SB 1383, future increases in diversion rate goals, and new diversion programs mandated by the state. The City s reported 2018 CalRecycle diversion rate was 63%. Draft, February 11, 2020 City of Santa Ana The City is requesting proposals for the services described below. If these services represent a significant change to current services, such changes are noted. A more comprehensive description of these services is found in the draft franchise agreement, included as Attachment 6 of this REP. Section references to the draft franchise agreement are included in the following summary. RESIDENTIAL COLLECTION SERVICE REQUIREMENTS (RESIDENTIAL CURBSIDE SERVICE UNITS) Refuse Cart Collection - Residential Curbside Service Units will continue to receive once per week automated refuse collection. Refuse carts shall he offered in 96, 64, and 35-gallon sizes. Each customer shall receive one refuse cart as part of the basic service provided by the Contractor. Additional refuse carts may be requested for an additional fee. See Section 4.2.1. Cart Overage - Customers that periodically generate more solid waste than will fit in their containers may contact Contractor to collect items as a bulky item pickup under Section 4.2.10. See Section 4.2.2. Recycling Cart Collection - Residential Curbside Service Units will continue to receive weekly automated recycling collection on the same day as their refuse collection. Each customer shall receive one recycling cart as part of the basic service provided by the Contractor. Recycling carts shall be offered, in 96, 64, and 35-gallon sizes. Additional recycling carts may be requested for an additional fee. See Section 4.2.3. Organics Cart Collection - Residential Curbside Service Units will continue to receive weekly automated organics cart collection on the same day as their refuse collection. Each customer shall receive one organics cart as part of the basic service provided by the Contractor. Organics carts shall be offered, in 96, 64, and 35-gallon sizes. Customers may request additional organics carts for a monthly fee. See Section 4.2.4. Residential Food Waste Collection - A residential food waste collection program is required to be provided by the Contractor at the start of this Agreement or as otherwise mandated by CalRecycle. See Section 4.2.4. Holiday Tree Collection and Recycling - Contractor will continue to provide curbside collection and proper recycling of holiday greenery to Residential Curbside Service Units for the period beginning December 26 and continuing for at least three weeks, for the duration of this agreement. See Section 4.2.8. Walk -Out Service for Disabled Customers -The Contractor shall continue to provide disabled cart customers with walk -out service at no additional charge. Contractor shall provide walk- out service to other than disabled individuals at the request of the customer, for a monthly fee. See Section 4.2.9. Draft, February 11, 2020 10 City of Santa Ana Bulky Item Collection (including e-waste) - The Contractor will be required to provide four (4) bulky item pickups per Residential Curbside Service Unit account per year at no additional charge. Contractor will be required to collect a maximum of four (4) items, or four (4) 30-gallon bags of refuse, or twenty (20) 30-gallon bags of yard waste per pickup. Contractor may charge a fee for additional items. See Section 4.2.10. Sharps Collection Program - Contractor will provide a sharps mail -back collection program to each Residential Curbside Service Unit Customer at no additional cost. See Section 4.2.11. Used Motor Oil and Used Motor Oil Filter Collection and Recycling - Contractor shall provide Residential Curbside Service Unit customers with containers for the collection of used motor oil and bags for the collection of used motor oil filters. Contractor shall collect used motor oil and used motor oil filters on regularly scheduled collection days. Contractor shall ensure that used motor oil and used motor oil filters are recycled. Contractor shall bill the City once per month for its costs associated with the collection and recycling of used motor oil and used motor oil filters. Used motor oil containers and used motor oil filter recycling bags will be purchased by the City. Current contractor is paid $2,750 per month from the City s used motor oil grant funds to provide the used motor oil and used motor oil filter collection services which do not include the cost for the containers or filter bags which is reimbursed by the City separately. Contractor to propose monthly compensation in Attachment 3. See Section 4.2.12. Universal Waste Collection - Contractor shall provide collection of universal waste on an on - call basis to Residential Curbside Service Unit customers at no additional cost. See Section 4.2.13. See Attachment 11 for the quantities by material type collected through this program in calendar years 2015, 2016, 2017, and 2018 under the City s separate agreement for universal waste. Recycling Reward Prog - On a quarterly basis, Contractor and City staff will choose four residences that have placed uncontaminated recycling out for collection. Contractor shall provide a $25 gift card, approved by the City, for the selected residences. See Section 4.2.14. Senior and Mobile Home Low Generator Customers - Senior residents over the age of 65 and residents living in mobile home communities, both of which must live in households with no more than 2 persons and are low trash generators, will continue to receive 35-gallon carts. Residents receiving the Senior and Mobile Home Low Generator rate may not receive additional carts. See Section 4.2.5. COMMERCIAL COLLECTION SERVICE REQUIREMENTS (INCLUDING MULTI- FAMILY PROPERTIES OF 3 OR MORE UNITS) Refuse Bin Service - The Contractor will be required to collect all of the refuse that has been placed in bins. Collection will be at least once every week or more frequently if necessary to handle the waste stream of the premises where the bins are located. See Section 4.3.1. Draft, February 11, 2020 11 City of Santa Ana 60B-21 Bin Cleaning - Upon Customer or City request, or if required to maintain the containers in a clean condition, Contractor shall clean or exchange customer bins at the approved rates. See Section 4.7.4.3.A. Cart Service - Contractor will continue to offer refuse, recycling, and organics carts to commercial customers that do not have space for, or do not generate enough waste to require the use of bins for collection. See Section 4.3.2. Commercial Recycling - Contractor shall provide source separated recycling using bins or carts for commercial customers requesting such services. Commercial recycling bin services shall be provided at a rate not to exceed 75% of the equivalent refuse rate for similar bin sizes and service frequency. See Section 4.3.5. Organics Recycling Services - Contractor shall provide all customers required to participate in these programs with compliant programs such as organic waste collection and recycling services, coordination with food rescue organizations to promote edible food recovery, education and outreach, reporting, contamination monitoring and enforcement in accordance with AB 1826 and SB 1383. Commercial organics recycling services shall be provided at a rate not to exceed 75% of the equivalent refuse rate for similar bin sizes and service frequency. See Sections 4.3.6, 4.3.7, and 4.3.8, of the agreement. Holiday Tree Collection (Multi -Family Bin Customers) - Contractor shall collect all holiday trees discarded by Multi -Family Premises during the three weeks following Christmas Day, at no additional charge. After this period, trees will he collected as bulky items. See Section 4.3.15. Bulky Item Collection - Currently, bulky items at multi -family properties are collected by the hauler at an additional charge. Contractor to propose an alternative program and related additional costs, if any, for collection of bulky items from multi -family properties aligned with the City's goal to reduce instances of illegal dumping. Roll -Off Box Collection - Contractor will provide roll -off box collection services (as limited by Section 2.9 of the agreement) to both commercial and residential customers within two business days (excluding weekends and select holidays) of request. See Section 4.3.3. Temporary Bin Service - Contractor shall deliver a temporary bin (as limited by Section 2.9 of the agreement) to both commercial and residential customers within two business days (excluding weekends and select holidays) of request. See Section 4.3.4. Scout Service - Contractor shall provide scout service upon customer request and approval by the Executive Director for an additional charge. If a scout fee is charged then a pushout fee shall not be charged. See Section 4.3.10. Bin Push -Out Service - Contractor shall provide push -out service upon customer request for an additional charge. If a push -out fee is charged then a scout fee shall not be charged. See Section 4.3.11. Draft, February 11, 2020 12 City of Santa Ana 60B-22 Locking Bins - Contractor shall provide locking bin service to customers that request it at an additional cost. See Section 4.3.12. CITY GOVERNMENT OPERATIONS City Facilities Collection (City Government Operations) - Contractor will collect and dispose of all refuse, recyclables, and organic materials generated and accumulated at premises owned and/or operated by the City at no additional charge (including e-waste, and construction and demolition debris). Such premises include, but are not limited to, offices, parks, and street maintenance operations. See Attachment 2-K for the current list of facilities and service levels. The current contractor initiated food waste collection at several of the City facilities, as shown in Attachment 2-K. It is the intent of the City that this service will be offered at all City facilities generating food waste in the future. Note that these facilities and service levels may vary over the term of the new agreement, with no increase in compensation to the Contractor for additional collection services. See Sections 4.4.1 and 4.4.2. City -Sponsored Events - The Contractor will be required to continue to provide refuse, recyclables, and organics collection service at no charge at City -sponsored events. The requirements and list of events is included in Section 4.4.3. Note that these events and service levels may vary over the term of the new agreement, with no increase in compensation to the Contractor for additional collection services. Parkway Cleanup Following Garage Sales - Contractor will continue to provide two employees in a front -loader vehicle for a combined 60 hours per quarter, each 6 working days following the City s quarterly garage sales to remove debris left in parkways from the garage sales. See Section 4.4.4. Weekly Alley Cleanup - Contractor will continue to provide two employees in a front -loader vehicle for 60 hours per week, each 6 working days each week to remove debris left in alleyways. This service is increased to weekly, from 2 times per month in current agreement. See Section 4.4.5. Grant Administration - Contractor will continue to provide grant administration services on behalf of the City for grants pursuant to those contained in AB 939 and/or adopted by CalRecycle. The Contractor shall be reimbursed on an hourly basis for the grant administrator's time at the rate agreed upon. See Section 4.4.6. Emergency Services - Contractor will provide emergency services based on a rate which includes one crew and one collection truck. Contractor to propose hourly rate in Attachment 3. Battery Recycling Program - Contractor to provide as many battery recycling containers as requested by City for placement at City facilities at no additional cost. Contractor shall collect and replace containers upon City s request. See Section 4.4.8. See Attachment 12 for the pounds of batteries collected through this program in calendar years 2015, 2016, 2017 and 2018 under the City s separate agreement for battery collection. Draft, February 11, 2020 13 City of Santa Ana 60B-23 COMMUNITY SERVICES Neighborhood Cleanups- Contractor will continue to provide up to 300 roll -off box containers annually, at no additional charge to the City, for City -sponsored neighborhood cleanups. See Section 4.5.1. Household Hazardous Waste Drop -Off Event - Contractor to sponsor an annual household hazardous waste drop-off event. This is a new franchise service. See Section 4.5.2. Shredding Event - Contractor will provide at no additional cost an annual document shredding event. This is a new service. See Section 4.5.3. Compost Giveaway Event - Contractor will provide at no additional cost an annual compost giveaway event. This is a new service. See Section 4.5.4. Medication Take -Back Program - Contractor shall assist the City in increasing awareness of medication takeback programs provided by local pharmacies, or programs offered by other government entities. See Section 4.5.5. Environmental Ambassador Program - Contractor shall establish a recognition program for commercial businesses in the City which exhibit environmental stewardship. This is a new service. See Section 4.5.6. Santa Ana Green Quarterly Newsletter - Contractor shall be responsible for 25% of all costs incurred by the City for the production and mailing of the Santa Ana Green Quarterly Newsletter. The existing contractor's 25% share of a recent quarterly edition of the newsletter was $6,500. See Section 5.3.1. OPTIONAL SERVICES The City is requesting costs for the following optional services Citywide Temporary Construction and Demolition Debris Collection and Diversion Services - The City currently has two non-exclusive agreements for temporary construction and demolition debris removal services using roll -off boxes or bins, excepting that which is generated from City government operations which is exclusive to this agreement. Through this RFP process the City may choose to incorporate Citywide collection and processing of construction and demolition debris generated within the City in the exclusive services provided under this agreement. Proposers may propose rates for these services as an Optional Service to be provided. Processing of Mixed Waste - If feasible, Contractor to offer a program to process mixed solid waste at a material recovery facility for those commercial and multi -Family customers that do not subscribe to a source -separated recycling program, or otherwise participate in a qualifying Recycling program in accordance with AB 341. Draft, February 11, 2020 14 City of Santa Ana �. 1 A comprehensive description of contract terms is found in the draft franchise agreement. Below are some key terms to bring to your attention. Section references to the draft franchise agreement are included in the following summary. HOLIDAY COLLECTION If the regularly scheduled collection day falls on New Year's Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, or Christmas Day, collection days for the remainder of that week shall all be postponed one collection day and residential collection is permitted on Saturday during the make-up week. See Section 4.7.1. EDUCATION AND PUBLIC AwARENESS The City recognizes that effective public education is the key to implementing effective programs and regulatory compliance. See Section 5.3. CONTAINER SPECIFICATIONS AND DISTRIBUTION Carts - Contractor will be responsible for supplying and maintaining all carts under this agreement. Carts shall be new upon initiation of services under the Agreement, and compliant with SB 1383. See Section 4.7.4.1 of the draft agreement. Bin and Cart Labels and Colors - All carts and bins will be labeled to he compliant with SB 1383. See Sections 4.7.4.1 and 4.7.4.3. Cart Distribution - Contractor shall enable customers to select cart sizes, and to exchange cart sizes upon request. See Section 4.7.4.1 of the agreement. FAITHFUL PERFORMANCE BOND The Contractor will be required to provide a performance bond totaling $2,500,000. See Section 9.5. FAITHFUL PERFORMANCE LETTER OF CREDIT The Contractor will be required to provide a letter of credit totaling $500,000. See Section 9.6. INSURANCE REQUIREMENTS The draft agreement requires the Contractor to maintain minimum insurance levels. See Section 9.4 for the minimum limits of insurance for general liability, automobile liability, and workers compensation. Draft, February 11, 2020 15 City of Santa Ana 60B-25 REPORTING AND AUDITING The draft franchise agreement contains detailed auditing procedures, and specific reporting and record keeping requirements. See Article 8 of the draft franchise agreement for detailed information on the required records, reports, and review requirements. Audits - Section 8.2.7 - Contractor will reimburse to the City the cost of such audits, to he performed in 2024 and every three years thereafter, $95,000 for the first audit, and adjusted thereafter as described in Section 8.2.7. COLLECTION VEHICLE REQUIREMENTS Contractofs collection vehicles shall be not older than two -years and in like -new condition upon initiation of services under the Agreement, no more than 10 years of age during the initial term of the Agreement and no older than 15-years in age during any future extensions of the Agreement, and comply with Department of Transportation, South Coast Air Quality Management District and the California Air Resource Board requirements. Contractor's collection vehicles must use only renewable natural gas. See Section 4.7.3. DEDICATED REFUSE ROUTES Refuse collected in the City may not be commingled in collection trucks with refuse from other jurisdictions. All refuse routes shall be dedicated within the City s boundaries. See Section 4.15. FEES Franchise Fee: Contractor shall pay a Franchise Fee that is commensurate with the value to be received by Contractor in receiving the exclusive right to provide the service set forth herein. The City concludes that a reasonable and appropriate amount for the benefits provided should be a minimum of $8,000,000 in the first year. This payment to the City shall be referred to as a Franchise Fee and its percentage will be calculated according to estimated gross receipts from customers direct -billed by the Contractor as shown in Attachment 4-E. See Section 3.1. National Pollutant Discharge Elimination System (NPDES) Fee - Contractor shall pay to the City an annual NPDES Fee in the amount of $1,010,000, in twelve monthly installments of $84,166.67, and adjusted annually as described in Section 3.2 Vehicle Impact Fee - To offset the wear and tear on City streets from heavy duty vehicles, Contractor shall pay to the City an annual Vehicle Impact Fee in the amount of $2,266,666, in twelve monthly installments of $188,889, and adjusted annually as described in Section 3.3. Administrative Fee - Contractor shall pay to the City an annual Administrative Fee in the amount of $2,326,800, in twelve monthly installments of $193,900, and adjusted annually as described in Section 3.4. Draft, February 11, 2020 16 City of Santa Ana BILLING Residential Curbside Service Unit Billing - City shall bill Residential Curbside Service Unit customers, and remit payments to Contractor on a monthly basis, less City fees. See Section 5.1.1. Senior and Mobile Home Resident Low Generator Rate - Seniors and residents of mobile home communities currently receive a discounted rate for a reduced level of service (see Section 5.1.2 of the Agreement) under the existing agreement. Multi -Family and Commercial Cart Services, Bin, Roll -Off and Temporary Services Billing - Contractor shall bill monthly for cart, bin, roll -off box, temporary services, and other special charges as described in Sections 5.1.3 and 5.1.4. RATE ADJUSTMENT METHOD Initial rates will be set based on the rates proposed in Attachment 3. The rates will thereafter be adjusted using a rate adjustment index according to the computations described in Article 6 of the draft franchise agreement. The first rate adjustment is effective July 1, 2023. MINIMUM DIVERSION RATES Proposers are required to propose a diversion rate to which they will contractually commit and demonstrate how they will achieve that rate on Attachment 4-C. Third -party diversion and tonnage collected outside of this agreement, such as commercial recycling sold to third -party recyclers, and construction and demolition debris (except that collected and diverted from Government Operations) unless construction and demolition becomes exclusive to this Agreement, is not to be included in this calculation. See Section 4.6.1. Draft, February 11, 2020 17 City of Santa Ana 60B-27 The following information must be organized according to the outline in Attachment 1. Requested information should be identified by letter and/or number in the outline. 1. GENERAL REQUIREMENTS At the beginning of the proposal, include a: 1.a. Transmittal letter identifying the name, mailing address, e-mail address, telephone number and fax number of the proposal contact person 1.b. Table of contents 1.c. An executed anti -collusion affidavit (Attachment 5) 1.d. Executed Signature Page of RFP Addenda 2. RATE PROPOSAL FORMS (ATTACHMENT 3) The service rates proposed for each type of service should be included in the rate schedules in Attachment 3. In addition to the rates, proposers should calculate the estimated total annual rate revenue from each type of service and ensure that the total annual rate revenue from the proposed rates is accurately summarized in Attachment 3-A and reconciled to the proposers estimated revenue requirement (explained below) in Attachment 4-A. Calculations from Attachments 3-B, 3-C, 3-1), 3-E, 34, 3-G, 3-H, 3-I, 3-J, 3-K, 3-L and 3-M should flow through to Attachment 3-A. A proposal may be deemed nonconforming or incomplete unless Attachment 3 is complete and submitted in its entirety. A Microsoft Excel file containing Attachment 3 will be available on PlanetBids for registered users after the Pre -Proposal Meeting. Exhibit 2 of Attachment 6 contains additional rates for ancillary services that will be retained in the new contract. 3. SUPPORTING COSTS AND OPERATING DATA WORKSHEETS (ATTACHMENT 4) The supporting cost and operating data worksheet in Attachment 4-A provides a format for proposers to estimate their annual revenue requirement for providing all of the proposed services. In addition to the supporting cost worksheet, Attachment 4-A, proposers must provide the operational statistics on which their estimated costs are based in Attachment 4-B. The operating statistics will be used to evaluate the reasonableness of the proposers estimated revenue requirement. The proposers estimated revenue requirement will be used to evaluate the reasonableness of the proposed rates. Attachment 4-C demonstrates how the Draft, February 11, 2020 18 City of Santa Ana proposer plans to reach proposed diversion levels. Note that diversion programs put forth in Attachment 4-C, and elsewhere in proposers proposal, will be incorporated into the franchise agreement. Attachment 4-D should automatically calculate to compare the rate revenues and the revenue requirements for the first contract year. A proposal may be deemed nonconforming or incomplete unless Attachment 4 is complete and submitted in its entirety. After the deadline for submission of questions submitted via the PlanetBids portal, a Microsoft Excel file containing Attachment 4 will be available on PlanetBids for registered users after the Pre-Pronosal Meeting. 4. AGREEMENT SIGNATURE PAGE AND EXCEPTIONS In order to demonstrate that the proposer agrees to all terms and conditions of the agreement as written, it is required that the proposer sign and include in this proposal the signature page of the draft agreement. Should proposer have exceptions, include a list of any exceptions to the RFP and draft franchise agreement. Please describe the agreement section and nature of the proposed exception and identify proposed substitute language. In order to demonstrate that, but for the noted exceptions, the proposer agrees to all terms and conditions of the agreement as written, sign and include in this proposal the signature page of the draft agreement, along with the noted exceptions. The proposal is not considered complete without this signed page. 55. PROPOSER OVERVIEW 5.a. Business Structure Provide the following information regarding the proposing entity and entity that would provide a corporate guarantee, if applicable: i. Legal name of proposing entity that would sign franchise agreement and whether it is an individual, a partnership, a corporation, or a joint venture, ii. Entity that would submit financial statements and whether it is an individual, a partnership, a corporation, or a joint venture. If other than proposing entity, indicate relationship and willingness to sign corporate guarantee (see Exhibit 6 to Attachment 6); iii. Number of years in which proposing entity has been organized and doing business under this legal structure (if other than an individual); iv. Names of owners/stockholders with more than 10% of the Contractors equity; v. Names of all officers; vi. Corporate headquarters; vii. Local headquarters (if different); and, viii. Any strategic partners, or subcontractors that are included in the proposal, and their roles and responsibilities. Draft, February 11, 2020 19 City of Santa Ana 5.b. Description of Proposer's Experience Identify the names of all the public agencies in the counties of Orange and Los Angeles, in which the proposer currently provides service, including what type of service (manual or automated residential, commercial, roll -off, temporary bin) and the nature of the exclusivity (exclusive franchise, non-exclusive franchise, permit, or open system). Additionally, the proposer should submit a brief description of the proposer's experience in California providing solid waste services under exclusive agreements to city or county customers that qualifies it to perform the services being procured through this RFP; provide a table, including each jurisdiction's services (residential, commercial, etc.). Include preferably three or more detailed citations for current municipal customers with services most similar to those requested in this RFP. Citations shall include: The name of the jurisdiction; ii. Time period during which proposer provided service to the jurisdiction; iii. The type of customers served (e.g., residential or commercial); iv. The services performed (e.g., refuse collection, recyclable materials collection, or organics collection); v. Residential collection methods (e.g., manual or automated); vi. Whether the services were exclusively or non -exclusively provided in the jurisdiction by the proposer, and, vii. The name, address and telephone number of the jurisdiction representative responsible for administering the contract. Additionally, please provide at least one municipal citation for service transitions from another hauling company, including a brief description of the old and new services, and service transition dates, as well as the information listed in i. to vii. above. 5.c. Information Regarding Past and Pending Litigation List all civil or misdemeanor or felony criminal court or administrative filings by and/or against California government agencies that are currently pending and/or that have been filed, settled or otherwise received a disposition within the last ten years that relate to the provision of solid waste service listing the names of the parties, the case number, and a brief description of the case and disposition, if any. This paragraph is applicable to the following persons and entities: The key personnel described in Section 5.d; ii. The owners and officers of the company, iii. The entity submitting the proposal, and/or, iv. Any parent or affiliated company for actions filed in the State of California (For affiliates, proposer may limit disclosures of non -criminal matters to those in the Orange County and Los Angeles County area). Draft, February 11, 2020 20 City of Santa Ana v. Any strategic partners or subcontractors identified in Section 5.a.vii. Please include the resolution and current status of each civil legal action. 5.d. Key Personnel Identify and describe the qualifications and experience the City can expect of the key personnel your company would assign to the City. Provide a brief biographical description of the proposed management team members that will fill these described jobs, specifically including the City Liaison per Section 5.2.4 of agreement. Indicate the office locations for each key person assigned to the franchise. 5.e. Financial Information Initially, proposers must provide the following financial information in the proposal for the proposer or, if a corporate guaranty is to be provided, for the guarantor: i. The type of financial statements (e.g. audited, reviewed, or compiled) and the corporate entity that they represent (proposer or corporate guarantor); ii. The most recently completed fiscal year for which financial statements are available; iii. Annual revenue from the most recently completed financial statements; iv. Current Assets to Current Liabilities ratio (current assets/current liabilities) from the most recently completed financial statements; and, v. Total Liabilities to Total Assets ratio (total liabilities/total assets) from the most recently completed financial statements. If selected for further consideration, proposers must be prepared to submit the financial statements upon which this requested financial information is based within five (5) business days of the request for the most recently completed fiscal year. All such statements would need to be prepared and presented in accordance with Generally Accepted Accounting Principles applied on a consistent basis, and must include a statement by the chief financial officer of the proposers company that there has been no material adverse change in condi- tions or operations, as reflected in the submitted balance sheets, income statements and cash flow statements, since the date on which they were prepared. If requested to submit financial statements, the proposer may submit a single copy of its financial statements stamped "confidential" with a written request that it be returned to the proposer after the proposal process is complete. The City will attempt to maintain the confidentiality of such a request, although confidentiality cannot be guaranteed. Prior to award, the selected proposer will be required to submit "reviewed" or "audited" financial statements that demonstrate reasonable financial resources and stability to the satisfaction of the City. If awarded the contract, the financial statements shall remain with the City. Draft, February 11, 2020 21 City of Santa Ana 60B-31 5.f. Insurance Proposer must submit evidence that the proposer either has, or is able to obtain, the insurance coverage required in the draft franchise agreement in Attachment 6, Section 9.4. 6. FACILITY DESCRIPTIONS REQUIRED IN PROPOSAL 6.a. Transfer Facilities For each transfer facility, if any, please identify the following: The name and address of the facility, ii. Statement regarding any relationship between the proposer and the facility owner/operator (if any); iii. The price per ton for transfer and disposal of trash; iv. Estimated date for start of operation, if facility is not currently in operation, and, v. Indicate any solid waste facility capacity guarantees being offered. 6.b. Processing Facilities Proposers must identify in their proposals the processing facilities they plan to use for the: • Processing of the commingled recyclables; • Processing of organic waste, • Processing of mixed waste, • Processing and diversion of construction and demolition debris. For each processing facility, please identify the following: i. The name and location of the facility, ii. A statement regarding any relationship between the proposer and the facility owner/operator (if any); iii. The material to be processed (organic waste, commingled recyclables, mixed waste, or construction and demolition debris); iv. The price per ton; v. Indicate any solid waste facility capacity guarantees being offered, vi. Estimated diversion rate for processing of each category of recyclables processed (e.g., residential recyclables, residential organics, source -separated commercial recyclables, mixed commercial waste, commercial organics, C&D.) These six items must be included for each facility to be used. Draft, February 11, 2020 22 City of Santa Ana 60B-32 6.c. Operating Facilities Proposers must provide information about the operating facilities that they plan to use, including: i. Yard address for equipment and personnel staging and arrangements for maintenance of equipment; ii. Office address for customer service, public relations, billing, and franchise administration; and, iii. Other operating facilities to be used in providing service under this agreement. 6.d Disposal Facilities Proposers are required to use the Orange County Landfill system under the terms of the Waste Disposal Agreement (WDA) between the City and the County of Orange. The landfill fee per ton as of July 1, 2018 is $34.18, and is adjusted annually based on the CPI. The WDA expires June 30, 2025. %. IMPLEMENTATION PLAN Proposers should provide an implementation schedule that demonstrates that your company has the ability to implement the services in accordance with the service start date, including meeting equipment, personnel, administration, maintenance, and public education requirements. 8. AB 341, AB 1826, AND SB 1383 IMPLEMENTATION PLAN Proposer shall provide an AB 341, AB 1826, and SB 1383 implementation plan detailing planned tasks, procedures and schedule to ensure the City s compliance with AB 341, AB 1826 and SB 1383. Planned tasks, procedures and schedules for AB 341, AB 1826 and SB 1383 are included in Sections 4.3.5, 4.3.6, and 4.3.8,and shall be more fully documented in this implementation plan. See Section 5.3.2 9. CUSTOMER SERVICE/CUSTOMER CENTER PROCEDURES Customer service is very important to the City of Santa Ana. When a customer has a request for, or an issue with, solid waste service, the customer's first contact with the solid waste provider is the company's call center. Describe the company's call -in center procedures, including how each call is initially answered (e.g. phone tree, live operator). Include all geographical locations customer service calls will be answered from (e.g., out -of state, international call centers, or California based). Contractor is required to have the capability of responding to the public in English and Spanish during office hours. Describe the company's ability to monitor the following: i. Average time customer is on hold; and ii. Response time to complete a work order from time of request. Draft, February 11, 2020 23 City of Santa Ana 60B-33 Indicate procedures taken to ensure that each Santa Ana caller will receive information accurate to the City's contract. Describe procedures to satisfactorily respond to common customer complaints, and inquiries from non-English speaking customers. 10. AUTOMATED CART DESCRIPTION All carts shall be new at the start of service under this agreement. Proposer shall describe carts which it intends to use in the City, pending City approval. Include manufacturer, specific sizes, SB 1383 compliance, colors of carts and lids by waste stream, and a photograph. 11. COLLECTION VEHICLE DESCRIPTION Please provide the following information for each vehicle to be used under the collector agreement. Proposers should indicate proposed vehicle features that enhance safety and maneuverability on difficult -to -service streets and alleyways. 1. Make 2. Model 3. Model year 4. Type of renewable natural fuel to be used 5. Waste stream(s) to be collected (e.g., cart, bin, and roll -off) 12. MINIMUM RECYCLING REQUIREMENTS Proposers shall propose a diversion rate in accordance with Section 4.6.1 of the agreement to which the successful proposer will be held accountable. See Sections 11.1.N and 11.4.13.9 of the agreement which address Events of Default and liquidated damages associated with not meeting the minimum recycling requirements. For comparison, the existing Contractor diverted 15% of the tonnage Collected by the Contractor in calendar year 2017. 13. FOOD RESCUE AND DONATION PROGRAM Proposers shall describe their proposed efforts to assist the City and its customers with a food rescue and donation program to comply with SB 1383 which establishes a target that not less than 20% of currently disposed edible food is recovered for human consumption by 2025. See Section 4.3.8. 14. ORGANIC WASTE RECYCLING PROGRAM Proposers shall describe the proposed organic waste recycling program required under Sections 4.2.4 (residential), 4.3.6 (commercial), and 4.3.7 (roll -off) of the draft agreement, including type of containers proposed. Proposers should include detailed information on customer in-house preparation of material prior to disposal (e.g., bag or no bag requirements); include a comprehensive list of organic materials as defined in Sections 1.32, 1.42, and 1.65 that are acceptable in each of the programs listed above, and a comprehensive list of organic Draft, February 11, 2020 24 City of Santa Ana �. 1 materials that are not accepted in the program. Also, proposers are requested to submit at least two samples of outreach materials already distributed to customers in a city with a similar program in place if proposer has implemented such program. Please describe your intended approach and activities related to SB 1383 organic waste collection and recycling services, education and outreach, capacity planning, procurement of organic waste products, reporting, contamination monitoring, and other compliance activities. 15. MULTI -FAMILY BULKY ITEM COLLECTION Proposers shall describe the intended approach to provide bulky item collection services to multi -family properties, and any additional charge to customer for service. 16. RECYCLABLE MATERIALS Proposers shall specify all materials that can be recycled through the residential and commercial recycling programs. 17. PROCUREMENT OF RECOVERED ORGANIC WASTE PRODUCTS Proposers shall describe how they will assist the City to ensure that sufficient California recovered organic waste products are procured on behalf of the City to meet the requirements of SB 1383. Proposers shall identify the types and quantities of recovered organic waste products which shall be procured. See Section 4.4.9. 18. EMPLOYMENT OF PRIOR CONTRACTOR EMPLOYEES In accordance with Labor Code Sections 1070, 1072, 1075, and 1076, proposer will offer employment to qualified existing employees of the current contractor that may be displaced if the current contractor is not retained. Please describe your procedures for offering such employment and any limitations. Please describe whether your company operates under a labor collective bargaining agreement. See Section 4.7.5.1. 19. OPTIONAL PROGRAM: PROCESSING OF MIXED WASTE Proposers may propose to process all mixed waste collected from customers with bin or permanent roll -off box service that do not participate in Contractor's separate recyclable collection program and are not otherwise in compliance with the mandatory commercial requirements under AB 341. Proposers shall identify incremental customer rate impacts, if applicable. Proposers shall describe the MRF to be used and the estimated recovery rate from mixed waste processing. Proposers must provide mixed waste diversion percentages in the last 12 months for the processing facilities it uses within the greater Orange County and Los Angeles County regions. See Sections 4.3.5.2 of the draft agreement. Draft, February 11, 2020 25 City of Santa Ana 60B-35 20. OPTIONAL SERVICE: CITYWIDE CONSTRUCTION AND DEMOLITION DEBRIS COLLECTION AND DIVERSION SERVICES The City Council may consider whether to include construction and demolition debris collection and diversion services within the scope of the exclusive agreement. Proposer shall describe: i. Experience in providing C&D collection and recycling services; ii. Diversion facilities to be used and ability to comply with the State -mandated diversion requirement for Construction and Demolition Debris under CalGreen as described on Section 4.6.5 of the agreement, iii. Propose rates in Attachment 3. 21. PROPOSAL ENHANCEMENTS Provided that the proposer has submitted a proposal that meets all of the minimum requirements of this RFP, the proposer may also offer additional enhancements that exceed the requirements of this RFP and the franchise agreement. Any such enhancements shall be listed by number under this section in the RFP or it may be omitted from the proposal evaluation. Proposers should include the following information for each enhancement: i. The additional charge, if any, to City or ratepayer for enhancement, ii. How the enhancement exceeds RFP requirements; and, iii. How the enhancement benefits the City and how it would be incorporated into the contract service requirements or rate schedule. Draft, February 11, 2020 26 City of Santa Ana The proposal will be objectively evaluated based on criteria that may include, but is not limited to, the following factors. PROPOSERS QUALIFICATIONS ♦ General Experience - Demonstrated experience providing similar services to other jurisdictions, and experience of key personnel. ♦ jurisdiction Satisfaction - Satisfaction of proposer references with services received, including but not limited to, implementation, customer services, reporting, assistance developing diversion programs, and working cooperatively with City staff. TECHNICAL QUALIFICATIONS ♦ Waste Diversion - Proposed diversion programs and guaranteed minimum diversion rate and the ability to achieve the diversion goals identified in the agreement. ♦ Implementation Plan - Reasonableness of implementation schedule and ability to meet deadlines (e.g., equipment procurement schedules and personnel available), ability and resources to manage a service transition. ♦ Operations - Reasonableness of assumptions (e.g., number of routes). EXCEPTIONS TO THE TERMS AND CONDITIONS ♦ Exceptions to the draft franchise agreement -Number and nature of the exceptions. FINANCIAL RESOURCES ♦ Financial Stability - Comparison of additional revenue from this franchise to company's current revenue stream, financial stability of proposer based on its financial ratios. ♦ Insurance - Demonstrated ability of proposer to obtain adequate insurance. COSTS ♦ Cost of service, as measured by rate revenues - Cost competitiveness relative to other proposals. ♦ Reasonableness of costs - Logically consistent relationship between costs and operational assumptions. EMPLOYMENT ♦ Willingness to retain existing contractor's employees that may be displaced if the current contractor is not retained. AWARD To be considered, proposals must be complete and must conform to the requirements of this RFP as to form and content. The franchise will be awarded for the proposal that offers the Draft, February 11, 2020 - 27- City of Santa Ana 60B-37 greatest value to the City. The City, however, reserves the right to reject any or all proposals, to accept or reject any one or more items of a proposal, or to waive any minor irregularities or informalities in the proposal. City Council will select the proposal it determines to best serve the City and is not bound to follow the recommendation of City staff or City staffs proposal evaluations in making its selection. It is anticipated that all services will be contracted for. However, the City reserves the right to change such service descriptions prior to award. Draft, February 11, 2020 28 City of Santa Ana PROPOSAL OUTLINE The following is an outline that proposers shall follow when completing their proposals. Under each section, proposer must include all information as outlined below, including all subheadings and subsections as identified in Section V. 1) General Requirements a) Transmittal letter b) Table of contents c) Anti -Collusion Affidavit (Attachment 5) d) Executed Signature Page of REP Addenda 2) Rate Proposal Forms (Attachment 3) 3) Supporting Cost and Operating Data Worksheets (Attachment 4) 4) Agreement Signature Page and Exceptions 5) Proposer Overview a) Business Structure b) Description of Proposers Experience c) Information Regarding Past and Pending Litigation d) Key personnel e) Financial information f) Insurance 6) Facility Descriptions a) Transfer facilities b) Processing facilities c) Operating facilities d) Disposal facilities 7) Implementation Plan 8) AB 341, AB 1826, and SB 1383 Implementation Plan 9) Customer Service/Call Center Procedures 10) Automated Cart Description 11) Collection Vehicle Description 12) Minimum Recycling Requirements 13) Food Rescue and Donation Program 14) Organic Waste Recycling Program 15) Multi -Family Bulky Item Collection Program 16) Recyclable Materials 17) Procurement of Recovered Organic Waste Products 18) Employment of Prior Contractor Employees 19) Optional Program: Processing of Mixed Waste 20) Optional Program: Citywide Construction and Demolition Debris Collection and Diversion Services 21) Proposal Enhancements Draft, February 11, 2020 1 - 1 City of Santa Ana EXISTING SERVICE DATA Draft, February 11, 2020 2-1 City of Santa Ana ATTACHMENT Page 2-A 2-B 2-C 2-D 2-E 2-F 2-G 2-H 24 2-J 2-K 2-L 2-M ATTACHMENT 2 CURRENT AND ESTIMATED FUTURE SERVICE DATA Table of Contents Contents Current Curbside Cart Distribution Current and Estimated Future Refuse Bin Service Levels Current and Estimated Future Recycling Service Levels for Bin Refuse Customers Current and Estimated Future Organics Service Levels for Bin Refuse Customers Residential, Commercial/Multi-Family, and Industrial Tonnage - Calendar Year 2017 Residential, Commercial/Multi-Family, and Industrial Tonnage - Calendar Year 2018 Roll -off Service Data Routes and Route Hours Exclusive Franchise Rate Revenue (Billed by City) - FY 2018 and FY 2019 Exclusive Franchise Rate Revenue (Billed by Hauler) - FY 2018 and FY 2019 City Government Operations Services City -Sponsored Events Optional C&D Bin and Roll -Off Service Levels 2/112020 O B _ w A City of Santa Ana ATTACHMENT CURRENT CURBSIDE CART DISTRIBUTION (1) Curbside MSW Cart Count (ExcludingExtra Carts Size Cart Count 96-Gallon 38,539 64-Gallon 5,126 35-Gallon 708 Total 44,373 Curbside Organics Cart Count (ExcludingExtra Carts AXO 00i 96-Gallon 36,850 64-Gallon 3,151 35-Gallon 451 Total 40,452 Curbside Recycling Cart Count (ExcludingExtra Carts) Size Cart Count 96-Gallon 37,245 64-Gallon 5,330 35-Gallon 798 Total 43,373 MSW Extra Cart Count Size Cart Count 96-Gallon 7,330 64-Gallon 215 35-Gallon 54 Total Extra 7,599 Organics Extra Cart Count Cart Count 96-Gallon 2,050 64-Gallon 62 35-Gallon 8 Total Extra 2,120 Extra Recycling Cart Count Size Cart Count 96-Gallon 1,024 64-Gallon 58 35-Gallon 12 Total Extra 1,094 (1) Service levels as of December 2018 as reported by Waste Management in March 2019. Cart counts do not include containers serviced in the newly annexed area of the City. The City will prepare an addendum to this RFP when this information becomes available. 211112020 2-A City of Santa Ana 60 B-42 ATTACHMENT 2 CURRENT AND ESTIMATED FUTURE REFUSE BIN SERVICE LEVELS Raw] F CURRENT RESIDENTIAL/MULTI-FAMILY REFUSE BIN SERVICE LEVELS (1) Container Type/Size Numberof Collections er Week 1 2 3 4 5 6 p apickups(9)) 1 R.efine, Size: 1 Yazd 3 1 2 Refuse, Size: 2 Yard 1s0 110 30 1 4 8 2 3 Refuse, Size: 3 Yard 1 K,71 293 1 401 90 43 25 3 4 Refuse, Size: 4 Yard 1 -,41 1101 2061 96 12 171 2 Raw COMMERCIALCURRENT 1 Container Type/Size Number of Collections er Week 1 2 3 4 6 6 5xtra pickups (2) 5 Refuse, Size: 1 Yard ill 3 4 6 Refuse, Size: 2 Yard 742 141 35 8 4 3 6 9 Refuse, Size: 3 Yard 914 590 498 165 230 88 15 8 Refuse, Size: 4 Yard 309 216 215 119 169 119 9 9 Refuse, Size: 6 Yard 2 (1) Service levels as of October 2018 as reported by Waste Management (2) Extra pickups based on weekly average reported by Waste Management fur October 2018. ® ESTIMATED FUTURE RESIDENTIAMMULTI-FANHUY REFUSE BIN SERVICE LEVELS (3) Container Type/Size Number of Collections er Week 1 2 3 4 5 6 i tra pickups (,I) 10 Rstuse,Size: lYard 1J6 11 Refuse, Size: 2 Yard 316 T. 4 8 2 12 Refuse, Size: 3 Yard 273 mo 113 25 3 13 Refuse, Size: 4Yard 1101 M61 1081 12 2 ESTIMATED FUTURE COMMERCIAL REFUSE BIN SERVICE LEVELS (3) Container Type/Size Number of Collections er Week 1 2 3 4 6 6 i tra pickups (l) 14 Refuse, Size: 1 Yard 160 3 4 15 Refuse, Size: 2Yard 782 309 32 8 2 3 6 16 Refuse, Size: 3 Yard 954 430 409 9 152 20 15 19 Refuse, Size: 4Yard 510 328 m 93 159 98 9 18 Refuse, Size: 6 Yard 1 2 (3) Service levels estimated by EeoNomies to account for on -going AB 1826 implementation efforts. Bin counts do not include containers serviced in the newly armexr (4) Extra pickups based on weekly average reported by Waste Management fur October 2018. M M20 609-43 Dly, f5,,,,A,,, ATTACHM 2 CURRENT AND ESTIMATED FUTURE RECYCLING SERVICE LEVELS FOR BIN REFUSE CUSTOMERS CURRENT RECYCLING SERVICE LEVELS FOR RESIDENTIAL/MULTI-FAMILY BIN REFUSE CUSTOMERS (1) 0®©0©0 RECYCLING SERVICECURRENT •R COMMERCIAL BIN er YPe/Size Contain T Numb ex of CollectionsPn Week 1 2 1 3 1 4 1 5 1-6 Y Rec• ,Sze: IYard - - - - - - 8 R ebo ,Size: 2Yard 9 R clin ,Size: 3Yard 261 21 8 1 10 R cbn ,Size: 4Ymd 73 1 2 11 R ckm ,Size: 6Ymd 12 Recchng,An Size Car[ 2 1 (1) Savioe levels as of Oetober M18 as reported by Waste Management. (2) S oe levels do not include mseientoe, mtdh4a ndy, and eommercud customers who subs be to ttueecaxt service. ESTIMATED F Row FUTURE RECYCLING SERVICE LEVELS FOR RESIDENTIALIMULTI-FAMILY BIN REFUSE CUSTOMERS (3) Container TYPe/Size Numberof Coltecffo�u per Week 1 2 1 3 1 4 1 5 6 1 Rec cli ,Size: 1Yard 332 2 R chn ,Size: 2Yard 190 32 3 R clin ,Size: 3Yard 792 69 24 4 R ehn ,Size: 4Yard 422 30 5 R clin ,Size: 6Yard 6 Recycli ,An SzeCazt 1 Row ESTIMATED FUTURE RECYCLING SERVICE LEVELS FOR COMMERCIAL BIN REFUSE CUSTOMERS (3) Container TYPdSize Number of CoRecffons per Week 1 2 1 3 1 4 1 5 6 Y R ,hn,Size: 1Yard 8 R ,hn ,Sze: 2Ymd 9 Recyc ,Sze: 3Yard 632 322 49 15 1 1 10 R cbn ,Sze: 4Yard 375 247 11 a 1 5 2 11 R c5n ,Sze: 6Yard 12 ReccHng,An Size Cart 1 (3) Service levels estimated by EcoNomics to account for on-gmng All MI and All 1826 implementation efforts. Bin counts do not include containers serviced in the newly axmexei M11W20 60 8-44 Clyof Santa Ana ATTACEIMENT 2 CURRENT AND ESTIMATED FUTURE ORGANICS SERVICE LEVELS FOR BIN REFUSE CUSTOMERS CURRENT ORGANICS SERVICE LEVELS FOR RESIDENTIAL/MULTI-FAMILY BIN REFUSE CUSTOMERS (1) Y777,0©©0®0 CURRENT ORGANICS SERVICE LEVELS FOR• BIN REFUSE CUSTOMERS Raw Container Type/Sim m Nuber of CoBectionsper Week 1 2 1 3 1 4 1 5 6 3 Orgarcs, Size 2 Yard 11 91 tj 1 4 Organic., Any Size Cart (2) 11 19 (1) Service levels as of October 2018 w reported by Waste Nlmmg=mL (2) Service levels do notinclude rcidential, multi -family, and commercial customers who subscribe to curbside cart service. ESTIMATED FUTURE ORGANICS SERVICE LEVELS FOR RESIDENTIAL/MULTI-FAMILY BIN REFUSE CUSTOMERS (3) ESTIMATED Row FUTURE ORGANICS SERVICE LEVELS FOR• • Container Type/Size Numberof Collections per Week 1 2 3 1 4 15 b 7 OrgarucsSize2 Yard I 154 160 42 19 11 4 8 arcs, An Size Cart Cart 414 457 472 1 49 1 211 2 (3) Service levels estimated by EcoNomics to account£or SB 1383 compliance. (4) Service levels estimated by EcoNomics to accountfor orfgomg AB 341 and AB 1826 implementation efforts. Bin counts do not include containers ser 2/11/2020 6 U 9-45 City of Santa Ana }\\\\( I(\((\ \!§/| }}\\(( ! �ƒ\ � {j) /)))) { \ \ o. 1 I ATTACHMENT 2 ROLL -OFF SERVICE DATA -EXCLUSIVE FRANCHISE (1) Services for the 12-month period ended June 30, 2018, as reported by Waste Management. 211112020 2-G City of Santa Ana 60 B-48 ATTACHMFNT 2 ROUTES ANO ROUTE HOURS -EXCLUSIVE FRANCHISE (1) R HoPa Rntep Dy T # of Truck Roues per Day Crew Size Hor2 pen) MondayTvesda Wedneda Thvrsda FridaySatarda Svnd 1 Curbside Refuse 12.0 12.0 12.0 12.0 8.0 1 10.5 2 Curbside Recycling 7.0 7.0 7.0 7.0 4.0 - - 1 10.5 3 Curbside Green Waste 6.0 6.0 6.0 6.0 5.0 - - 1 10.5 4 Bin Refuse 20.0 19.0 11.0 19.0 M.0 16.0 - 1 10.5 5 Bin Recycling 1.0 2.0 1.0 2.0 1.0 1.0 - 1 10.5 6 Bin G. Waste - - - - - - - - - 9 Coot )c�Orgam6 (B .` 1.0 1.0 1.0 1.0 1.0 1.0 - 1 40 8 Stinger Service 1.0 1.0 1.0 1.0 1.0 1.0 9 Bullcy Items 1.0 1.0 1.0 1.0 10 Roll-0ff (2) 3.0 3.0 3.0 3.0 3.0 3.0 11 Container Deh oor 1.01 1.01 1.01 1.01 1.0 1.0 12 Other: Bag A[ Route - - 1.0 - 1.0 13 Total Routes 5.0 I 5.0 I 95.0 I 33.0 46.0 24.0 - 11 N/A (1) Service levels as of October 2M8 as reported by Waste Management Route hours and number of buctcs per day do notmdude the newly a noxed area of the City. The City will po M IM20 608-49 CdyofS to Aia ATTACHMENT 2 FY 2018 EXCLUSIVE FRANCHISE RATE REVENUE (BILLED BY CITY) (1) Residential & Service Period Commercial Revenue Retained Revenue Remitted to Services -City by City Row Hauler (2) Billed 1 July 2017 $ 698,148.09 2 August 2017 $ 698,986.48 3 September 2017 $ 698,015.60 4 October 2017 $ 698,224.39 5 November 2017 $ 699,02151 6 December 2017 $ 699,157.75 7 January 2018 $ 699,596.88 8 February 2018 $ 755,185.50 9 March 2018 $ 749,874.04 10 April 2018 $ 846,220.00 11 May 2018 $ 814,933.88 12 June 2018 $ 756,446.94 $ 154,291.66 13 1 Total 1 $ 8,813,814.06 $ 1,851,499.97 $ 6,%2,314.09 $ 543,856.43 (1) Gty billed revenue for 12-month period ended June 30, 2018, as reported by the City. Excludes revenue from hauler -billed service and C&D services. (2) Fee remittance to hauler as reported by City. $ 154,291.66 211112020 2-1(2) City of Santa Ana 60B-50 ATTACHMENT 2 FY 2019 EXCLUSIVE FRANCHISE RATE REVENUE (BILLED BY CITY) (1) Residential & Row Se�icef`eriodCommercial Revenue Retained Revenue Row Service Period Remitted to Services -City by City Hauler (2) Billed 1 July 2018 $ 785,045.76 2 August 2018 $ 785,367.90 3 September 2018 $ 785,787.30 4 October 2018 $ 786,067.30 5 November 2018 $ 786,863.36 6 December 2018 $ 786,894.57 7 January 2019 $ 774,740.00 8 February 2019 $ 799,401.56 9 March 2019 $ 787,440.63 10 April 2019 $ 787,47275 $ 154,291.66 11 May 2019 $ 787,668.81 $ 154,291. 12 June 2019 $ 788,328.51 $ 154,2154,291.66 13 1 Total 1 $ 9,441,078.45 $ 1,851,499.95 $ 7,589,578.50 $ 630,754.09 (1) City billed revenue for 12-month period ended June 30, 2019 as reported by the City. Excludes revenue from hauler -billed service and C&D services. (2) Fee remittance to hauler as reported by City. $ 154,291.67 211112020 2-1(2) City of Santa Ana 60B-51 ATTACHMENT ORGANICS SUPPLEMENTAL PAYMENTS TO HAULER Revenue Row Service Period Remitted to Hauler 1 January 2019 2 February 2019 3 March 2019 4 April 2019 5 May 2019 6 June 2019 7 July 2019 8 August 2019 9 September 2019 10 October 2019 11 November 2019 12 December 2019 $ 3,778.63 $ 3,592.97 $ 4,379.76 $ 5,873.87 $ 5,966.67 $ 6,207.27 $ 7,369.28 $ 7,714.35 $ 8,020.50 $ 8,439.45 $ 10,252.52 Pending 13 1 Total 1 $ 71,595.27 (1) City remittance to hauler for the supplemental cost for providing organics services to commercial customers at discounted rate. 2/11/2020 2-1(3) City of Santa Ana 60B-52 ATTACHMENT 2 FY 2018 EXCLUSIVE FRANCHISE RATE REVENUE (BILLED BY HAULER) (1) Multi -Family, Total Hauler Commercial, and Industrial Roll -off Row Service Period Industrial Bins & (Excluding C&D) - Billed Exclusive Franchise Additional Services Hauler Billed Revenue Hauler Billed 1 July 2017 $ 2,215,434.82 2 August 2017 $ 2,228,895.23 3 September 2017 $ 2,215,941.44 4 October 2017 $ 2,225,146.51 5 November 2017 $ 2,236,807.66 6 December 2017 $ 2,236,954.00 7 January 2018 $ 2,234,864.26 8 February 2018 $ 2,246,718.22 9 March 2018 $ 2,224,977.06 10 April 2018 $ 2,250,29239 11 May 2018 $ 2,242,894.12 12 June 2018 $ 2,253,539.72 13 Total Gross Revenue July 2017- $ 26 812,465.43 $ 3,518,07262 $ 30,330,538.05 June 2018 14 Less Fees Remitted to City 2 $ 5,760,791.48 $ 722,316.77 $ 6,483,108.25 15 Net Hauler Revenue After $ 21,051,673.95 $ 2,795,755.85 $ 23,847,429.80 Deducting City Fees $ 2,513,064.04 (1) Hauler billed revenue for 12-month period ended June 30, 2018, as reported by Waste Management. Excludes revenue from City -billed curbside service and C&D services. (2) Fee remittance to City as reported by Waste Management monthly reports. $ 297,629.22 2/112020 2-i (1) City of Santa Ana 60B-53 ATTACHMENT 2 FY 2019 EXCLUSIVE FRANCHISE RATE REVENUE (BILLED BY HAULER) (1) Multi -Family, Total Hauler Commercial, and Industrial Roll -off Row Service Period Industrial Bins & (Excluding C&D) - Billed Exclusive Franchise Additional Services Hauler Billed Revenue Hauler Billed 1 July 2018 $ 2,295,635.66 2 August 2018 $ 2,523,631.71 3 September 2018 $ 2,147,654.34 4 October 2018 $ 2,349,165.26 5 November 2018 $ 2,286,047.40 6 December 2018 $ 2,344,650.78 7 January 2019 $ 2,395,968.17 8 February 2019 $ 2,167,600.42 9 March 2019 $ 2,472,181.45 10 April 2019 $ 2,329,236.95 11 May 2019 $ 2,470,705.35 12 June 2019 $ 2,266,87247 13 Total Gross Revenue July 2018 - $ 28 049,349.96 $ 3,684,985.74 $ 31,734,335.70 June 2019 14 Less Fees Remitted to City 2 $ 6,883,530.78 $ 34,554.48 $ 6,918,085.26 15 Net Hauler Revenue After $ 21,165,819.15 $ 3,650,431.26 $ 24,816,250.44 Deducting City Fees $ 2,576,768.89 (1) Hauler billed revenue for 12-month period ended June 30, 2019 as reported by Waste Management. Excludes revenue from City -billed curbside service and C&D services. (2) Fee remittance to City as reported by Waste Management monthly reports. $ 281,133.23 2/112020 2-i (2) City of Santa Ana 60B-54 11 . M111a.F CITY GOVERNMENT OPERATIONS SERVICES CART AND BIN SERVICE (1) ROW WASFETYPE CONUMESOF CO ALVEit FIt3(�SPEIi NAMF/IACAT1ON5 3 6 1 26CMCCEN=DRW NISW 1 2 26=CEN=DRW R elan 1 3 3 3 26CMC�=DRW R al 1 3 to Cell 4 2216MONFEV AAVE MSW 2 3 5 5 20CMCCEN`TERDRW MSW 2 3 5 6 20CMCCEN`TERDRW Q 2 64Gal 2 7 20CMCCEN`TERDRW R cline 2 3 5 8 122 NEWHOFE SFN MSW 1 2 1 9 122 NEWHOFE SFN R-vcImg 1 3 1 10 3000 CENTENNIAL RD W MSW 1 3 1 11 210BIRC1I5FN R-vcIng 1 3 2 12 210BMC1I5fN Q e 1 64Gal 13 210BIRC1I5FN MSW 1 2 14 2215MCFADDENAVEW MSW 2 3 6 15 706 NEWHOFE SFN MSW 1 3 2 16 300GUNF1iTiRSFS MSW 1 3 2 17 2600VALENOAAVEN MSW N/A N/A N/A 18 Ma OLDGRANDAVEN MSW N/A N/A N/A 19 120WALNUT5FW MSW N/A N/A N/A 20 9�MACA=F BLVDW MSW 1 3 1 21 102917F1i STW MSW 1 3 2 22 1439BROADWAYS MSW 1 3 2 23 419FRANHI.IISSFS MSW 1 3 1 24 M17GREENNILLESFS MSW 1 3 1 25 5a NEWHOFE SFN MSW 1 3 1 26 24CNICCENFERFLAZA MSW N/A N/A N/A 27 M1BROADWAYN MSW 1 3 1 28 1320WARNERAVEE MSW 1 3 2 29 1320BMI ISFS MSW 1 3 1 30 MSD" Ara/213SCenta St MSW 1 4 6 31 220SDam, Ara/213 S Centa St R-,clng 1 3 6 32 220SD- Ara/213 S Centa St Q s 2 64Gal 2 33 1000ESaata Ana Blvd MSW 1 4 6 34 1000ESaata Ana Blvd R-,cIng 1 4 2 35 2627WMcFadden S HIBm(MSW/RCY) 1 4 1 36 MDWMcFadden MSW 2 3 5 37 MD W McFadden R-,clng 1 3 2 38 2210 W McFadden Q 1 64 Gal 3 39 424W3cd St MSWe 1 2 2 40 424W3cd St R cln 1 3 2 41 424W3cd St Q 1 64Gal 2 42 726S Cateaa MSWe 1 3 4 43 726S Cates a R clin 1 3 44 726S CateaSt Q am 1 ti4 Gal 1 45 300SFi as St MSWe 1 3 96 300S Fi as S[ R clin 1 3 1 47 1825W CivicCata Da' MSW 1 3 1 ROW , SERVICE CONTM ANNDALPULLB NAMF/I0CAT1ON5 WASFETYPE #CONTAINERS 40 104 48 =OFSANTfAANAJAIL NSW 1 49 =OFSANTAANA-CORPYATO MSW 6 40 1560 50 CITYOFSANTAANASFADMU MSW 1 40 1N 51 =OFSANTAANATIRELOADS MSW 1 40 6 52 CITYOFSANTA ANA YARD -CENFENNIAL MSW 1 10 52 53 =OFSANTAANAYARD-CENCE\ L G—Waste 1 40 1N 54 =OFSANTA ANA YARD-CEN=N] L MSW 1 40 104 55 =OFSANFfAANAZ G Waete 1 40 52 56 =OFSAIVTAANAZ MSW 1 40 1% (1) Service levels as of December 2019 as reported by Waste Managemnt (2) Service for 12monfb period ended June 30, 2019 as reported by Waste Management W1IM20 609K_55 Cityot Santa Ana ATTACHMENT 2 CITY -SPONSORED EVENTS (1) Row Event Solid Waste Services Typically Provided at Past Events containers, event boxes, (# and size of refuse and recycling etc.( EventBoxes and Liners Solid Waste Collection Containers 1 4thofJuly Celebration at Centennial Park 30 Evan Boxes&300Linas 2 Wilshire Sgvace Summer Concert 20 Evan Boxes, 10 Recycle Lids, 40 Liners 2-3 Yazd lnsta Bins 3 Townsend lZaitt City Fiesta/Socal Day of Hc,,e Health &Re. Fair 20 evatBoxes & 90 Liners 4 Santa Ana Fiestas Pahias 2M Event Boxes&1,OWLiners 8_0Yacds 5 Cie. Up Your Yazd Cade Sheet 1-9 Yard 6 Santa Ana HHW (2) 2-40 Yazds 9 Santa Ana Police Department 12 Event Boxes&4 Recycle Lids 8 City Clean Up Events (Weekly) 16 -40 Yazds week 9 Santa Ara National Night Out 20 Eventltoxes & 100 Liners (1) Service for 12-mmth period ended June M, 2018, as reported by Waste Managenxent. (2) HHW events ace currently held bienmally. New franchise agreement will regiure amual HHW events M M20 609-56 Dly, fs,,,,An, ATTACHMENT 2 CITY OF SANTA ANA CONSTRUCTION AND DEMOLITION DEBRIS DATA - NON-EXCLUSIVE FRANCHISE (1) for 12-Month Period Ended tune 30, 2018 CONSTRUCTION AND DEMOLITION DEBRIS TONS - NON-EXCLUSIVE FRANCHISE (1) Does not include services performed under exclusive franchise agreement (2) Gross billings (inclusive of City fees) for the 12-month period ended June 30, 2018, as reported by WM and Ware Disposal combined. (3) Gross receipts (inclusive of City fees) for the 12-month period ended June 30, 2018, as reported by WM and Ware Disposal combined. 2412020 6 U 6-57 City of Santa Ana RATE PROPOSAL FORMS Draft, February 11, 2020 3-1 City of Santa Ana \ u } / ( / ] ; (\ a\ )) `) ] § a3j a aUa/ � �\ )2 ®/55®5 !\ƒ\\\}\\) 4 / Aƒ(()�\\)//)) °2§§7 ]auuag22a«�4 �2u )l)E\E\E\E\E)E\E\\\m\0cpc, uzzzzzzzzzzzzz //2%//22/%/ U � �My d m m M � ti ri ti ri rl P b n n n Q 1 'd 1 1 N.i b 6 W F» F» F» F» F» F» F» F» Fa u3 Fa u3 Fa Vs W � > N P4 U N � 00 w a � b x � > �n a W U R & m v m v GL 72 C o > b m b 72 72 72 a d P4 U U c4 U w w 8 S 0.r.A. GL FL p FL FL GL FL FL FL v FL GL UPam. CF. VCi '.L' PF. PF, CF. CF. CF. PF. Nu. CF. CF. VCi PF. F o o.1 � .1 M ���bHy11 V F Q O W -M N cq O >y ur4 iCC d F Q fA _EA fA_ 63 _fA _{ffpyA ri d U d C Ca, O to _V3 tA- Vi _M _Nf a d A O O Ili - .G o R k O U3 U3 N Ti u" x .a z b d � [x u' v � d b d U /vCm� d Q d_ p P; d N. K. d A Q xZ d m U d bgg N U U L-� U W. U- W. E y �q _W O qqF I I I - d VA1- C i o. 1 9 a rl ATfACILWENT 3 PROPOSED COMMERCIAL REFUSE BIN RATE REVENUE Proposing Company: - Instroctions: Enter proposed rates in bolded boxes. Proposed rate revenue on this page should calculate automatically. Confirm accuracy of calculations. Proposed Commercial Refuse Bin Rates Row Container Type/517P Number of Collections per Week 1 2 3 4 5 6 1 1 Cubic Yazd - Refuse 2 2 Cubic Yazd - Refuse 3 3 Cubic Yazd - Refuse 4 4 Cubic Yazd - Refuse 5 6 Cubic Yazd - Refuse Estimated Commercial Refuse Bin Service Levels Row Container Type/Size Number of CollF 6 1Cubic Yard -Refuse 160 3 4 167 7 2 Cubic Yazd - Refuse 782 309 32 8 2 3 1,136 8 3 Cubic Yazd - Refuse 954 430 409 9 152 70 2,024 9 4 Cubic Yazd - Refuse 510 328 60 93 159 98 1,248 10 6 Cubic Yazd - Refuse 1 2 3 Proposed ections per Week Total Containers 1 2 3 4 5 6 Commercial Refuse Bin Rate Revenue Row F Container Type/Shp Number of Collections per Week Monthly Revenue 1 2 3 4 5 6 11 1 Cubic Yazd - Refuse $ $ $ $ $ $ $ 12 2 Cubic Yazd -Refuse $ $ $ $ $ $ $ 13 3 Cubic Yazd -Refuse $ - $ - $ - $ - $ - $ - $ - 14 4 Cubic Yazd -Refuse $ $ $ $ $ $ $ 15 6 Cubic Yazd -Refuse $ $ $ $ $ $ $ 16 Projected Moodily Commercial Refuse Bin Revenue Revenue $ - 17 Months 1? 18 Pro'eded Annual Commercial Refuse Bin Revenue Revenue $ (1) Estimated commercial refuse service levels provided by EcoNomics. Failure to complete and submit this form will deem the proposer's franchise proposal non -responsive. 21 II12020 60 B=63 Ciry ofsm,taA.� ATTACIEWENT 3 PROPOSED RESIDENTIAIJMULTI-FAMILY REFUSE BIN RATE REVENUE Proposing Company: - Instructions: Enter proposed rates in bolded boxes. Proposed rate revenue on this page should calculate automatically. Confirm accuracy of calculations. Proposed Residential/Multi-Family Refuse Bin Rates Row Container Type/Sim Number of Collections per Week 1 2 3 4 5 6 1 1 Cubic Yazd - Refuse 2 2 Cubic Yazd - Refuse 3 3 Cubic Yazd - Refuse 4 4 Cubic Yazd - Refuse 5 6 Cubic Yazd - Refuse Estimated Residential/Multi-Family Refuse Bin Service Levels 1 Row Container Type/Size Number of CoF 6 1Cubic Yard -Refuse 176 176 7 2 Cubic Yazd - Refuse 316 30 4 8 358 8 3Cubic Yard -Refuse 273 400 113 25 811 9 4 Cubic Yazd - Refuse 110 206 108 17 441 10 6 Cubic Yazd - Refuse - Proposed llections per Week Total Containers 1 2 3 4 5 6 Residential/Multi-Family Refuse Bin Rate Revenue Row F Container Type/Shp Number of Collections per Week Monthly Revenue 1 2 3 4 5 6 11 1 Cubic Yazd - Refuse $ $ $ $ $ $ $ 12 2 Cubic Yazd -Refuse $ $ $ $ $ $ $ 13 3 Cubic Yazd -Refuse $ - $ - $ - $ - $ - $ - $ - 14 4 Cubic Yazd -Refuse $ $ $ $ $ $ $ 15 6 Cubic Yazd -Refuse $ $ $ $ $ $ $ 16 Pro'eded Monthl Residential/Multi Famd Refuse Bin Rate Revenue $ - 17 Months 1? 18 Pro'eded Annual Residential/Multi-Family Refuse Bin Rate Revenue $ (1) Estimated multi -family refuse service levels provided by EcoNomics. Failure to complete and submit this form will deem the proposer's franchise proposal non -responsive. 211112020 ' E City of Santa Ana 60 B-64 ATTACHMENT 3 PROPOSED COMMERCIAL RECYCLING BIN RATE REVENUE Proposing Company-. Recycling rates as % of Commercial Refuse Rates 75% Proposed Commercial Recycling Bin Rates 75% of Commercial Refuse Rates) Row Contain- Type/Size I Number of Collections per Week 1 2 3 4 5 6 1 1 Cubic Yard - Recycling $ - $ - $ - $ - $ - $ - 2 2 Cubic Yard - Recycling $ - $ - $ - $ - $ - $ - 3 3Cubic Yard -Recycling $ - $ - $ - $ - $ - $ - 4 4Cubic Yard -Recycling $ - $ - $ - $ - $ - $ - Estimated Commercial Recycling Bin Service Levels 6 1 Cubic Yard - Recycling - 7 2Cubic Yard -Recycling - 8 3 Cubic Yard - Recycling 632 322 49 15 1 1 L020 9 4Cubic Yard -Recycling 375 247 11 8 5 2 648 Row Proposed Container Type/Size Number of Collections per Week Total Containers 1 2 3 4 5 6 Commercial Rec cGn Bin Rate Revenue Container Type/S17P Number of Collections per Week Monthly Revenue 1 2 3 4 5 6 11 1Cubic Yard -Recycling $ - $ - $ $- 72 2 Cubic Yard - Recycling $ $ $ $ $ $ $ 13 3Cubic Yard -Recycling $ $ $ $ $ $ $ 14 4 Cubic Yard - Recycling $ - $ - $ - $ - $ - $ - $ - 16 Projected Monthly Commercial Recycling Bin Rate Revenue $ 17 Months 12 18 Projected Annual Commercial Recycling Bin Rate Revenue $ (1) Estimated commercial and multi family recycling service levels provided by EcoNomics. Failure to complete and submit this form will deem the proposer's franchise proposal non -responsive. 21 1112020 60BF-65 Ciryof&nraAw ATTACI NT 3 PROPOSED RESIDENTIAI/MULTI-FAMILY RECYCLING BIN RATE REVENUE Proposing Company-. Recycling rates as % of Refuse Rates 75% Pro osed Residential/Multi-Family Recycling Bin Rates 75% of Residential/Multi-Family Bin Refuse Rates) Row Container Type/Size Number of Collections per Week 1 2 3 4 5 6 1 1 Cubic Yard - Recycling $ - $ - $ - $ - $ - $ - 2 2 Cubic Yard - Recycling $ - $ - $ - $ - $ - $ - 3 3Cubic Yard -Recycling $ - $ - $ - $ - $ - $ - 4 4Cubic Yard -Recycling $ - $ - $ - $ - $ - $ - Estimated Residential/Multi-Family Recycling Bin Service Levels 5 1Cubic Yard -Recycling 332 332 6 2Cubic Yard -Recycling 190 37 227 7 3Cubic Yard -Recycling 792 69 24 885 8 4Cubic Yard -Recycling 427 30 457 R ow Proposed Container Type/S17P PNumber of Collections per Week Total Containers 1 2 3 4 5 6 Residential/Multi-Famil Recycling Bin Rate Revenue Row Container Type/size Number of Collections perWeek Monthly Revenue 1 2 3 4 5 6 9 1Cubic Yard -Recycling $ - $ - $ $ - $ - $ - 10 2 Cubic Yard - Recycling $ $ $ $ $ $ $ 11 3Cubic Yard -Rec clsi $ $ $ $ $ $ $ 72 4 Cubic Yard - Recycling $ - $ - $ - $ - $ - $ - $ - 13 Projected Monthly Residential/Multi FamB Recycling Bin Rate Revenue $ 14 Months 12 15 Projected Annual Residanti uki-Famll Rec clin Bin Rate Revenue $ (1) Estimated commercial and multi family recycling service levels provided by EcoNomics. Failure to complete and submit this form will deem the proposer's franchise proposal non -responsive. 211112020 60 B=66 airy ofsm,raA.,� ATTACHAMTN 3 PROPOSED RFSIDENTIAI/MULTI-FAMB.Y AND COMMERCIAL ORGANICS BIN RATE REVENUE Proposing Company. Organics rotes as % of Refuse Rates 1 75% Proposed Residential/Multi-Family and Commercial arcs Bin Rates 75% of Refuse Bin'TOC-3:3M'!Rates Raw Container T i. yPe/S Number of Collections per Week 1 2 3 4 5 6 1 2Cubic Ymd-Organcs-Residential/Multi-Family $ - $ - $ - $ - $ - 5 - 2 2Cubic Ymd- Organics -Commercial $ - $ - $ - $ - $ - 5 - Estimated ResideofiaWulti-Family and Commercial Or arcs Bin Servic a Levels 1 Row Cmrtains Type/Size Numbs of Collections per Week Total Corainen: 1 2 3 4 5 6 3 2Cub. Ymd-Oigmdcs-Residential/Multi-Pantily - 4 2Cubk Yard - Organics -Commerdal 1541 1601 421 191 ill 41 390 Proposed ResidentiaWulti-Family and Commscial Orgaoics Bin Recycling Rate Revenue Row Contains Type/Siu Number of Collections per Week Montldy Reveme 1 2 3 4 5 6 5 2Cubk Yazd-Organics-Residential/Multi-Fantily $ - $ - $ - $ - $ - $ - $ - 6 2Cubic Yard -Organics-Connnercial $ - $ - $ - $ - $ - $ - $ - 7 Projected Monthly Residential/Multi-Family and Commercial Organics Bin Rate Revenue $ 8 Months 12 9 Projected Amval Residential/Multi-Family and Commscial Organics Bin Rate Reveme $ - (1) Estimated commercial organics bin service levels provided by EcoNomics. Failure to complete and submit this form will deem the poopos&s franchise proposal noreres onsive. 211112020 60 ✓ -67 City ofS 4aAoa ATTACHMENT3 PROPOSED RESM TIAUMUFTl-FAMILY ANO COMMERCIAL ORGANICS ANO RECYCLING CART RATE REVENUE FOR REFUSE BIN SERVICE CUSTOMERS Proposing Company: Proposed Residential/Multi-Family and Commercial Cr an and Recycling Cart Rates For Refuse Bin Service Customers s Container Type/Size IF Number of Collections per Week 1 2 3 4 5 6 1 Any Size Cazt-Orgarvcs 2 1 Any Size Cazt-Recchn Estimated Residentia ulti-Famil and Commercial (hganics and RecycIfirg Cart Service levels For Refuse Bin Service Customers Container Type/Size Number of Collections per Week notal 1 2 3 4 5 6 Containers 3 An %i Cmt-Or arves 492 1 49 21 2 1,4�0 4 1 Any Size Cmt-Recycling I I- Proposed Residential/Multi-Family and Commercial Organics and Recycling Cart Service Revenue For Refuse Bin Service Customers Container Type/Size Number of Collections er Week Mouthy Revensse 1 2 3 4 5 6 5 Any Size Cazt-Orgarvcs Recycling $ - $ - $ - $ - $ - $ - $ - 6 An Size Cart-R clm $ I $ I $ is is $ $ 7 Projected Monthly Residential/Msslfl-Family and Commercial Orgardcs and Recycling Cart Rate Reverme for Bin Service Customers $ - 8 Months 12 9 Projected Annual Resdartial/Multi-Family and Commercial Organics and Recycling Cart Rate Revenue for Bin Service Customers $ (1) Estimated comma aland mnlhfamily org kseaztservice levels povided by BeoNomic, Failure to complete and submit this form will deem the er's franchise proposal noo-resfoursive. 21112020 60 ✓ —68 Coy afSasm Am ATTACHME 3 PROPOSED ADDITIONAL BIN SERVICES RATE REVINUE Proposing Company. Instructions: Enter proposed rates in bolded boxes. Proposed rate mvenue on this page should calculate automatkatly. Conform accuracy of calculations. Proposed Additional Bin Service Rates Rw Service Type/Size Number of Collections per Week 1 2 3 4 5 6 1 ScoutSeroro $ - $ - $ - $ - $ - 2 25' - 50' Push -out Charge $ - $ - $ - $ - $ - 3 >5O Pushout Charge $ - $ - $ - $ - $ - 4 Locking Bin $ - $ - $ - $ - $ - 5 Enclosure Charge $ - $ - $ - $ - $ - 6 Reba Pick-up Charge N/A N/A N/A N/A N/A Estimated Additional Bin Service Levels Rw Container Type/Siae Number oaf Collections per Week Total Containers 1 2 5 6 7 ScoutSerorr, 25 50 30 5 9 10 129 8 25'- 50' Push -out Charge 143 42 136 23 17 361 9 >5O Pushout Charge 298 47 70 23 13 25 476 10 Locking B.(1) 2,387 Z387 11 Encl. Charge (2) 8522 8,522 12 Extra Pick-up Charge 35 N/A N/A N/A N/A N/A 35 Proposed Additional Bin Service Rate Reverme Rw Cmdainer Type/Siu Number oaf Collection Week MoAmy Re . 1 2 4per 5 6 13 Sc out Service $ - $ - $ - $ - $ - $ - $ - 14 25' - 50 PoshoutCharge $ - $ - $ - $ - $ - $ - $ - 15 >50' Pushout Charge $ - $ - $ - $ - $ - $ - $ - 16 Lacking Bin $ - $ - $ - $ - $ - $ - $ - 17 Encl. Char $ $ $ $ $ $ $ 18 Extra Pick-up Charge $ - N/A N/A N/A N/A N/A $ 19 Projected Mootldy Additional Bin Service Rate Revemre $ - 20 Months 12 21 1 Projected Armval Additional Bin Service Rate Revenue $ (1)W currently bills for 2,387 locks. (2) WA currently bills for 8,522 bins and days. Di shibution by ltequmey currently unavailable Failure to complete and submit this form will deem the pmpm&s franchise pmpmal nor -responsive. 211112020 60 K1-69 Otv ofS saaAna W v v a v v� °a. m 0 vy� yy U N c� .o co co m N N v b y cw cw y a. a, cw y n. u o V � u u m m � � o U b9 y H U N y m u 0 v N a U) T xxa w G N N G N O y �C R'i id F4 PUT T F FTw _ ci m x M o. 1�l M H [�s5zy� W F d I v � 6 O. 00 X0 .G 'O 7d. �p O p O O V O O O V R R P 0 o `m N 0 V m N C aV+ w 3 o3¢ � v ctic o N m V m V o P4 V y V 4 P°. c a I c a 60B-71 oho I R 1 [ C u Q a a C O .d. FC O Fa Fa Fa FA C W a Aw F 1 � M � c-I W a O V .- C U v v A W m m W 4�J A s O a F F T Ow Ow o G � � b C a to 0. Q O p v u 78 u h u LIA c a n m r C C O co U' N V X N N m �v 1 N y�y G y p O a � u W C O C b a � y O � O O � � � o 1 uo n w a V A 'a d y � u s Av0 � 3 V � o � v s N o V 3 a w A�' b o v v N N � b A h T U v O o uz n 60B-72 SUPPORTING COST AND OPERATING DATA WORKSHEETS Draft, February 11, 2020 4 - 1 City of Santa Ana 60B-73 X s.a O O U 'O W � O � Q� p� O O u x 0 0 0 I U Q IT, o• l - F � � w O Faa� b t s F o .k m F A m j F FFLU� !per N 9 e � u a a m 2 m" 9 A d U � T a a e E �9g U C9 9 4l b © V u a c F Ci O F F:O a g O a b e a 60B-75 5 w v 0 F V ca � V V Uu dS c4 U 0 0 F 2 a 0 N \\ } � / J®/ � \\} : 2t/3: k 993/aa/�� p CA %\\(((/®a \44Gsa43:QE / } % ) \ \ \ c §O B- 7 \ : : a� &� n / _%m2 Ln e)S� cn en - -u¥ fA G: S G: m 0) 'D § ! ! » � a ~: ° \ } a \ w § \ \ \ \ � - -\- � - � >� � *- -�- \ to �- \ �- - )- !� -4 biD ƒ )[ § - n r - r ■ ) \ / \ c § ANTI -COLLUSION AFFIDAVIT Proposer as a part of this proposal submits the following affidavit: The undersigned deponent, of lawful age, being duly sworn, upon his oath deposes and says: That he has lawful authority to execute the within and foregoing proposal; that he has executed the same by subscribing his name hereto under oath for and on behalf of said proposer, that proposer has not directly or indirectly entered into any agreement, express or implied, with any proposer or proposers, having for its object the controlling of the price or amount of such proposal or proposals, the limiting of the proposals or proposers, the parceling or farming out to any proposer or proposers or other persons of any part of the contract or any part of the subject matter of the proposal or proposals or of the profits thereof, and that he has not and will not divulge the sealed Proposal to any person whomsoever, except those having a partnership or other financial interest with him in said proposal or proposals, until after the said sealed proposal or proposals are opened. Deponent further states that the proposer has not been a party to any collusion among proposers in restraint of freedom of competition; by agreement to make a proposal at a fixed price or to refrain from submitting a proposal, or with any City official or employee as to quantity, quality, or price in the prospective contract, or in any discussions between proposers and any City official concerning exchange of money or other things of value for special consideration in the letting of a contract; that the proposer has not paid, given or donated or agreed to pay, give or donate to any official, officer or employee of the City directly or indirectly, in the procuring of the award of contract pursuant to this proposal. Executed under penalty of perjury on this day of at SIGNED BY TITLE COMPANY Failure to complete and submit this form will deem the proposers proposal incomplete and Draft, February 11, 2020 5-1 City of Santa Ana 60B-80 DRAFT AGREEMENT FOR THE COLLECTION AND HANDLING OF SOLID WASTE GENERATED, PRODUCED AND/OR ACCUMULATED IN THE CITY OF SANTA ANA Draft, February 11, 2020 6 - 1 City of Santa Ana o. 1 CURRENT RATE SCHEDULES Draft, February 11, 2020 7 - 1 City of Santa Ana CURBSIDE SERVICE UNIT RATES FY 2019-20 MEMORANDUM •`' Will Holt, Treasury Manager To: Finance and Management Services Agency Date: June 13, 2019 $_ argaret Mercer, Admin. Services Manager From: Public Works Agency Subject; CURBSIDE REFUSE RATES — FY I9-20 The following is a breakdown of the curbside refuse rates that are effective July 1, 2019: Curbside service: Waste Management $17.41 per month City administration fee 4.11 NPDES fee .38 Total $21_90 Qualifying seniortmobile home curbside service: Waste Management $17.41 per month City administration fee 1,56 NPCES fee '38 Total $19.35 Additional Options[ Services: Additional carts $2.00 each per month. Residential Contamination $10.77 per third and subsequent event Damaged Cart Penalty (caused by intentional or wanton destruction by Curbside Service Unit) $48.46 per cart Residential Extra Pick-up $37.42 per pickup Steam Cleaning of Curbside Carts $28.92 per cart At Your Door Curbside HHW Collection $204.62 per occurrence Walk -Out service for Other Than DisabCed Individuals $26.92 per month Please call me at Ext. 5050 Kthere are any questions. February 11, 2020 7-2 City of Santa Ana Ti Y. �.. -�� MAYOR Miguel A. Pulido MAYOR PROTEM vicen1e SaThleMo COUNCILMEMSERS Angellca Amesua P. Derd BenaNdes Michele Martinez CITY OF SANTA ANA Panan . Rat Tinej.rc PUBLIC WORKS AGENCY M-21 20 Civic Center Plena P a_ Bcx INS Santa Ane, California 92IO2 CITY MANAGER David CaVa2os CITYATTORNEY Smia R. Cemelho CLERK OF THE COUNCIL Marla D. HURai RESIDENTIAL BINS -ADJUSTED RATES EFFECTIVE 07101119 1 YARD BIN 2019 TOTAL RATE 1 Yard Bin x 1 NVeek $113.28 1 Yard Bin x 2NVeek $203.52 1 Yard Bin x 3NVeek $293.72 1 Yard Bin x 4NVeek $384.D5 1 Yard Bin x 51VVeek $474.20 1 Yard Bin x 61Week $587 55 2 YARD BIN 2 Yard Bin x 1 NVeek $123.02 2 Yard Bin x 2NVeek $223.00 2 Yard Bin x 3NVeek $323.01 2 Yard Bin x 4NVeek $422.97 2 Yard Bin x 5/Week $522.95 2 Yard Bin x 61Week $622.91 3 YARD BIN 3 Yard Bin x 1 Meek $178.72 3 Yard Bin x 2NVeek $311 ,49 3 Yard Bin x 3NVeek $444.12 3 Yard Bin x 4NVeek $577.01 3 Yard Bin x 5NVeek $709.74 3 Yard Bin x 6NVeek $899.99 4 YARD BIN 4 Yard Bin x 1 Week $211.49 4 Yard Bin x 21VVeek $365.52 4 Yard Bin x 3/Week $519.47 4 Yard Bin x 41Week $673.52 4 Yard Bin x 51Week $827.42 4 Yard Bin x 6NVeek $1, 061.89 February 11, 2020 7-3 City of Santa Ana Z�. 1 t. ., MAYOR Miguel A- P.M. MAYOR PRO TEM Joe, mllegaa COONCILMEMBERS Cecilia Iglesias ° ' _: e° Dav d Penaloea Ve..L Sa.,enlo Jose Solvin CITY OF SANTA ANA PUBLIC WORKS AGENCY 20 Civic Center Plaza • P.O. Box 1906 Same Ana, Califmnla 92702 CITY MANAGER Krislme Rid,, OITY ATTORNEY Sonia R. Cervelho AGRNG CLERK OF THE COUNCIL Narme Mdre-Ramirez COMMERCIAL BINS -ADJUSTED RATES EFFECTIVE 07/01119 1 YARD BIN 2019 TOTAL RATE 1 Yard Bin x 1NVeek $90.52 1 Yard Bin x 2fWeek $157.96 1 Yard Bin x 3NVeek $225.53 1 Yard Bin x 4NVeak $293.14 1 Yard Bin x 5iVVeek $360.64 1 Yard Bin x 6NVeek $451 .11 2 YARD BIN 2 Yard Bin x 1NVeek $100.50 2 Yard Bin x 2NVeek $178.11 2 Yard Bin x 3/Week $255.62 2 Yard Bin x 4NVeek $333.11 2 Yard Bin x 5NVeek $410.65 2 Yard Bin x 6/Week $522.67 3 YARD BIN 3 Yard Bin x 1NVeek $145.05 3 Yard Bin x 21VVeak $267.14 3 Yard Bin x 31VVeak $389.17 3 Yard Bin x 4NVeek $511.20 3 Yard Bin x 5NVeek $63324 3 Yard Bin x 6NVeek $812.69 4YARD BIN i 4 Yard Bin x 1NVeek $189.61 4 Yard Bin x 2NVeek $344.61 4 Yard Bin x XWeek $499.67 4 Yard Bin x 4NVeek $554.82 4 Yard Bin x 5NVeek $B09.B8 4 Yard Bin x 6NVeek $1 045.42 SANTA ANA CITY COUNCIL vi0 P. Fuld 'm vo., I..., 1e S.—Im Omtl P.M bw Solaia rd", ur rWn lmnw wX.t] Nrdl moul MMknn xan nm a nesrfT-. nM.na m 'Ss.aTrAnx m doer�tm AMenn nane om wlottoFh..N.iAnr nrs :nlia.Wux�ds February 11, 2020 7-4 City of Santa Ana MAYOR Miguel A. FrUido MAYOR PRO TEM- Juen Nllegas _— — COUNCILMEMRERS Cecilia Iglesias 'g Cawd Peaaloza - Vmwle Sa.[.rrin Jose Solon. CITY OF SANTA ANA PUBLIC WORKS AGENCY 20 CtHg CcnICr Plaza -P.O. Box 1968 Santa Ana. California 92702 CITY MANAGER Kristine Ridge G ITY ATTORNEY Soria R. Celvelho ACTING CLERKOF THE COUNCIL Nor a Milrc-Ramirez COMMERCIAL ORGANICS BINS AND CARTS — ADJUSTED RATES EFFECTIVE 07/01/19 2 YARD BIN 2019 TOTAL RATE 1 Yard Bin x 1NVeek $50.25 1 Yard Bin x 211Veek $89.05 1 Yard Bin x 3Mleek $127.61 1 Yard Bin x 4=eek $166.55 1 Yard Bin x 5Mleek $205.33 1 Yard Bin x 6=eek $261.33 64 GALLON CART 64 Gallon Cart x 1NVeek $23.97 64 Gallon Cart x 2M]'eek $41.86 64 Gallon Cart x 3MJeek $5978 64 Gallon Cart x 4/Week $77.71 64 Gallon Cart x 5NVeek $95.61 64 Gallon Cart x 6Mleek $119.57 SANTA ANA CITY COUNCIL Vl0 P. Purdo 'm Yll., I.., 1e 3a lm Omtl P.M bw Solala id", mryarwn1 wma] wrdl moot rrtmrn aan m u r TiRrmm�r m n �,.arrrnx m Mer�3mrMe, nmaum wlurcoFh,.zA,+rnr •.r� February 11, 2020 7-5 City of Santa Ana LI 1 � . . MAYOR Miguel A. FrUido MAYOR PRO TEM- Juen Nllegas i _— — COUNCILMEMERS Cecilia Iglesias 'g Cawd Peaaloza - Ymeale Sa.[.rrin Jose Solon. CITY OF SANTA ANA PUBLIC WORKS AGENCY 20 CtHg CcnICr Plaza -P.O. Box 19ee Santa Ana. California 92702 CITY MANAGER Kristine Ridge G ITY ATTORNEY Soria R. Celvelho ACTING CLERKOF THE COUNCIL Norma Milrc-Ramirez ADDITIONAL SERVICES ADJUSTED RATES EFFECTIVE 07/01/19 ADDITIONAL SERVICE 2019 TOTAL RATE Looking Din(per bin per month 3.23 Extra Pickup 92.16 Enclosure Charge (per bin perpickup) 3.23 Overage Charge 47.44 25' — 50' Pull-out Charge(per bin perpickup) 1.66 51' —75' Pull-out Charge(per bin perpickup) 3.23 Casters 4.02 Restart Fee 22.18 Commercial Exchange Fee 6322 Roll -off Trip Charge (Dry Run 75.85 Commercial Return to Service Fee 75.85 Bulk - Commercial/Multi-Family 47.44 Bulk - Curbside 47.44 Ticket Copies 1.66 Graffiti Removal 35.47 Cleanin Fee — Commercial/Roll-off 31.97 Bin Relocation 53.85 Heavy Truck Service 80.77 Commercial and Rolloff Contamination Penalty On Second Notification 53.85 SANTA ANA CITY COUNCIL Vl0 P. Purdo 'm Yll., I.., 1e 3a 'M Omtl P.M bw Solala .,,r ur rwo 1m ward wl,d rwma] wrdl moot rrtmnn aan nor a nearfM .na m 'k rAnx m Mer�tm AmRnn nmaum wlurcoFh,.N,TAnr nr� r February 11, 2020 7-6 City of Santa Ana LI 1 � M, MAYOR Miguel A. FrUido MAYOR PRO TEM- Junn Nllegas _— — COUNCILMEMERS Cecilia Iglesias Cawd Peaaloza - V cwle Sa.[.rrin Jose Solon. CITY OF SANTA ANA PUBLIC WORKS AGENCY 20 CtHg CcnICr Plaza -P.O. Box 1968 Santa Ana. California 92702 CITY MANAGER Kristine Ridge CITY ATTORNEY Soria R. Celvelho ACTING CLERKOF THE COUNCIL Norma Milrc-Ramirez PERMANENT ROLLOFF AND COMPACTOR ROLLOFF, INSTA-BIN AND STINGER SERVICE — ADJUSTED RATES EFFECTIVE 07/01/19 PERMANENT ROLLOFF 2019 TOTAL RATE 10 Yard $275.04 20 Yard $275.04 40 Yard $275.04 M RF Disposal Rate per Ton $73.31 COMPACTOR ROLLOFF 10 Yard $332.35 20 Yard $332.35 40 Yard $332.35 MRF Disposal Rate per Ton $73.31 INSTA-BIN $94.97 STINGER Per Bin x IIVVeek $34.17 Per Bin x 2NVeek $68.36 Per Bin x 3/Week $102.51 Per Bin x 4/ Week $136.67 Per bin x 5NVeek $170.83 Per bin x 6NVeek $205.02 SANTA ANA CITY COUNCIL Vl0 P. Purdo 'm Yll., I.., 1e 3a lm Omtl P.M bw Solala .,,r mryarwn1 wma] wrdl moot rrtmrn aan m u r TiRrmm�r m �,.arrrnx m Mer�3mrMe, nmaum wlurcoFh,.zA,+rnr •.r� February 11, 2020 7-7 City of Santa Ana .. LI 1 � . . CITY OF SANTA ANA Green Policy The City of Santa Ana has along history of imple me ntirg envirormentallyfocused programs. In 2015the ❑ty of Santa Ana (City) establis-ed a Climate Action Plan to develop and implement strategies to reduce greerhousegas emissions from City operations and the community. Lardfi Ili ng of solid waste, improper disposal of hazardouswaste, andthe marufacturirg of products cortributeto greenhousegas emissions. The City has implemented many programs and policies to reduce the amount of waste landfi Ile and encourage so urcea-eduction and recycling act iviti es. This Greer Policy documents activities and programs currently in place through the City's operations and facilities and the community, describes programs included in the current solid waste agreement and identifies programs required by state regulation to be included in the new solid waste agreement, and identifies additional environmental programs to be included in the new solid waste agreement as financially feasible. October 16, 2018 Draft, February 11, 2020 8 - 1 City of Santa Ana CITY OF SANTA ANA Green Policy Table of Contents page I. California Regulations Relating to Diversion of Materials From Landfilling 1 It. Solid Waste Best Practices Hierarchy 2 111. Current City of Santa Ana Programs, Practices and Policies 3 IV. Existing Programs to be Included in Solid Waste Agreement 5 V. Environmental Programs Required by State Regulations to be Included in Solid Waste Agreement 5 VL Suite of Additional Environmental Programs to be Included in the New Solid Waste Agreement as Financial Feasible 6 VIL Additional Environmental Policies for Consideration 6 October 16, 2018 February 11, 2020 8-2 City of Santa Ana ZI 1 CITY OF SANTA ANA Green Policy INTRODUCTION The City of Santa Ana has a long history of implementing environmentally focused programs without an established Green Policy, This Green Policy has been developed to capture the vision of future environmental efforts in the City of Santa Ana, and will be used as the basis for refining the Solid Waste Services Request for Proposals scope, and implementing future solid waste environmental programs. The policy identifies California regulations relating to diversion of materials from landfilling, solid waste best practices hierarchy, current City of Santa Ana programs, practices and policies, existing programs to be included in solid waste agreement, environmental programs required by State regulations to be included in Solid Waste Agreement, suite of additional environmental programs to be included in the new Solid Waste Agreement as financial feasible, and additional environmental policies for consideration. CALIFORNIA REGULATIONS RELATING TO DIVERSION OF MATERIALS FROM LANDFILLING AB 341 AB 939 MW dA1ory en.nnal So% nxyrling;State 1."Jiction goal of 75% divarvon diversion by regaurm.t 2020 by 20W AB 1826 AB 1594 M1Lunl aher . landfill (PIT,Tv.. 1a'" daily daily cover organics ne longer vyf so' gall considered o of 50% dlvorsion in r¢.fortlan in organE- 2020 disfwsal by 2020 �& SB 1383 50%redvrtina m ar",w dap..l by 2020 and 75% by 2025, and 20% eerovery of edible food Ay 2025 Over the past 30 years California has passed many landmark environmental regulations. Summarized below are regulations that specifically address reducing the amount of matenaI being disposed at landfills. California adopted its first statewide, general recycling program in 1989, The California Integrated Waste Management Act (AB 939), which required jurisdictions to achieve 25 percent diversion of all solid waste from landfills by January 1, 1995, and 50 percent diversion by January 1, 2000. In preparation for the 2000 deadline, jurisdictions dramatically increased the number of diversion programs. Diversion programs include local effort for source reduction, reuse, recycling, and composting. October 16, 2018 February 11, 2020 8-3 City of Santa Ana o. 1 e CITY OF SANTA ANA Green Policy In 2011, Assembly Bfll 341 (AB 341f was signed into law requiring jurisdictions to implement commercial recycling programs, and requiring businesses that generate four or morecubic yards of solid waste, and multi -family complexes of 5 or more units to have a recycling program. Generators may comply by enrolling in a program offered by jurisdiction, self -recycling, or onsite reuse. This bill also requires Cal Recycle to establish a new statewide goal of75 percent recycling, including source reduction, recycling, and composting, by 2020. This recycling paradigm differs from AB 939 in several significant ways. First, AB 341 establishes a statewide policy goal, rather than a jurisdictional mandate. This places the onus for achieving the goal on the state, rather than on the cities and counties that directly regulate waste disposal and recycling. Under the law, jurisdictions are not required to meet the new policy's numerical diversion goals, but jurisdictions are responsible for implementing required programs. In September 2014, Governor Brown signed Assembly 31111594, mandating that as of January 1, 2020, the use of green material as alternative dally cover (ABC) wiil no longer constitute diversion through recycling and will instead be considered disposal in terms of measuring a jurisdiction's annual per capita disposal rate, thereby requiring that jurisdictions find alternative means of diversion such as composting, or anaerobic digestion of the material. In October 2014 Governor brown signed Assembly Bill 1826, requiring local jurisdictions across the state to implement an organic waste recycling program to divert organic waste generated by businesses, including multi -family residential dwellings that consist of five or more units (please note, however, that multi -family dwellings are not required to have a food waste diversion program). This law also requires businesses to recycle their organic waste on and after April 1, 2016, depending on the amount of waste they generate per week. This law phases in the mandatory recycling of commercial organics over time, in particular, the minimum threshold of organic waste generation by businesses decreases over time, which means an increasingly greater proportion of the commercial sector will be required to comply. Senate bill 1383 (5613831, was signed in September 2026, and establishes methane emissions reduction targets in a statewide effort to reduce emissions of short-lived climate pollutants in various sectors of California's economy. As it pertains to jurisdictions and the reduction of materials is nd51led, SB 1383 establishes targets to achieve a 50 percent reduction in the level of the statewide disposal of organic waste from the 2614 level by 2020 and a 75 percent reduction by 202S. In order to meet these goals, all organics generators, including residents, will need to divert organics from land filling either through a program offered by a jurisdiction through a franchise agreement, or by self -hauling. The law grants Cal Recycle the regulatory authority required to achieve the organic waste disposal reduction targets and establishes an additional target that not less than 20 percent of currently disposed edible food is recovered for human consumption by 2025. SOLID WASTE BEST PRACTICES HIERARCHY The solid waste best practices hierarchy is a tool used in the evaluation of policies, programs, and practices that reduce the amount of waste disposed at landfills.. By utilizing the hierarchy, users are able to maximize the benefit from materials, minimize the amount of waste, prevent greenhouse gas emissions, save energy, and conserve resources, The hierarchy indicates an order of preference for action to reduce and manage waste. The four -tier solid waste management hierarchy illustrated below ranks the most preferable ways to address solid October 15, 2018 February 11, 2020 8-4 City of Santa Ana ai 1 CITY OF SANTA ANA Green Policy waste. Source reduction or waste prevention is the best approach (tier one), followed by reuse of materials (tier2), recycling, including composting, (tier3), and disposal/landfilling (tier4). Reuse Recycling Disposal T Definitions: Source Reduction —Reducingthe need to manufacture new products by purchasing durable, long-lasting goods, examples are reusable grocery bags, coffee mugs, double -sided copying. Reuse - Using an object or material again, eitherfor its original purpose or for a similar purpose, without significantly altering the physical form of the object or material, examples are repurposing empty glass jars for storing food in the panty, donating gently used clothing to charitable organizations, repairing appliances and furniture ratherthan buying new. Recycling - Using waste as material to manufacture a new product. Recycling involves altering the physical form of an object or material and making a new objectfrom the altered material. Disposal -The disposition of solid waste at a landfill. Materials disposed should only be the residue left after all recyclable material (including organics) has been removed and processed, and does not include hazardous waste and other materials banned from landfilling. III. CURRENT CITY OF SANTA ANA PROGRAMS, PRACTICES AND POLICIES The programs, practices, and policies are categorized in accordance with CalRecycle in the areas of source -reduction, reuse, and recycling. City Operations and Facilities Source Reduction: • Environmentally Preferable Purchasing Policy — The City's purchasing policy includes requirements to purchase recycled -content products wherever feasible. • City crews grasscycle at City parks and facilities by leaving clippings on the lawn when mowing. Grass clippings decompose quickly, returning valuable nutrients back to the soil, and reducing irrigation needs. • City's tree crew, tree maintenance contractor and landscaping contractor mulch wood and green waste from City trees and reuse the material in landscaped areas around the City. October 16, 2018 February 11, 2020 8-5 City of Santa Ana CITY OF SANTA ANA Green Policy Reuse: • The City uses rubberized asphalt and slurry made from recycled tires on streets to increase the lifecycle of the roads, reduce noise, and enhance performance. • The City crushes asphalt and concrete during construction projects to he reused onsite. Recycling: • Recycling opportunities are avail able throughout City fad lilies Inc using smaI l recycling containers for offices and large bins for centralized recycling. Items recycled include paper, plastic, glass, and metal beverage containers. • Motor oil and tires from the City fleet are recycled. • Battery recycling is available at City facilities for City operations. • The City uses an electronic's recycler for surplus computers and other electronics, and recycles used printer and copier toner cartridges. • Metal from street signs, pipes, and shopping carts are recycled by City operations.. • The City ensures that all construction and demolition projects divert 65%of material generated as required by the CalGreen Building Code. community Source Reduchom • The City offers backyard composting classes for City residents including a composting bin at a discounted price. Recycling: • Reverse vending machines and recycling centers are located throughout the City which allow the community to receive the California redemption value (CRV) forrecyding bottles and cans. • The City partners. with CC Recydes Cosponsor County Regional Eco Challenge Events. Reuse: • There are nonprofit and for -profit organizations located within the City which offermaterial reuse opportunities for the community. Reuse organizations include the Assistance League of Santa Ana, Baker`s Thrift Store, Thrift Experience, Habitat for Humanity, the Salvation Army, Goodwill, and others. • The City provides informationto restaurants and other food generating businesses on Waste Not QC_ Waste Not DC works collaboratively with hospitals, food banks, municipalities, the food industry, and the waste hauling industry to reduce hunger and food waste by recovering edible food and distributing tofcod pantries serving food insecure community members. PUBLIC EDUCATION AND OUTREACH • The City provides source -reduction, reuse, and recycling information on the City's website as part of the Santa Ana Green program. October 15, 2018 February 11, 2020 8-6 City of Santa Ana ui 1 •. CITY OF SANTA ANA Green Policy • The Santa Ana Green newsletter is published and mailed to all single-family and multi -family residents quarterly. • The Santa Ana Police Athletic and Activity League sponsors the "Recycle Our Way to Disneyland" fundraiser which raises money, in part by recyclables collected at the Police Facility, to send children to Disneyland during the Christmas Holiday - • The City partners with the Discovery Science Center to present "Santa Ana Waste Free Days" which allow Santa Ana residents free admission to the Discovery Science Center with access to the award winning Eco Challenge Exhibit, ORDINANCES AND RESOLUTIONS The following are ordinances and resolutions which have been approved by the City Council: • Ordinance requiring residents receiving curbside solid waste service to place refuse, recydables and green waste in designated carts. • Ordinance requiring construction and demolition debris to be transported to a materials recovery faculty, and end -user for diversion. • Water efficient landscape ordinance encouraging proper irrigation installation, the use of xeriscaping and the planting of drought tolerant trees and shrubs. • Fats, Oils and Grease ordinance prohibiting disposal of waste cooking oil into drains. • Resolution adopting a policy for procuring recycled content products. • Resolution designating the City of Santa Ana as a Recycling Market Development Zone with the cities of Huntington Reach, Garden Grove, Mission Viejo, Orange, Placentia, and Stanton_ IV. EXISTING PROGRAMS TO BE INCLUDED IN SOLID WASTE AGREEMENT The current programs listed below have historically been provided bythe City's solid waste collector, and will continue. • City operations solid waste and recycling collection. • Solid waste and recycling collection at City -sponsored events. • Neighborhood cleanups, • Parkway cleanups after garage sale weekends. • Alley cleanup —to he increased from two times per month to four times per month. • Single-family residents are provided refuse, recycling and green waste service. • Businesses and multi -family complexes are offered recycling service. • Holiday greenery is collected from residential properties and diverted from Iandfi l l ing. • Sharps Safe Disposal Program. • Door -to -Door Universal Waste Cal Iectien—Cal Iection of universal waste offered to residents. Universal waste includes flu ores cent tubes, light bulbs, batteries, mercury containing devices, televisions and other electronic equipment, and other universal waste asdefined by Cal Recycle. October LS, 2018 February 11, 2020 8-7 City of Santa Ana CITY OF SANTA ANA Green Policy V. ENVIRONMENTAL PROGRAMS REQUIRED BY STATE REGULATIONS TO BE INCLUDED IN SOUD WASTE AGREEMENT • Residential food waste program —Sp 1383 requires jurisdictions to offer an organics recycling program, including food waste, to all generators by January 1, 2022. • organics waste collection and recycling from commercial generators that currently meet the thresholds of AB 1825, and in January 1, 2022 from all generators of organics. • Food donation/rescue— Hauler to provide information and/or coordinate with food rescue organizations. • AB 341 compliant commercial and multi -family recyclingwhich may include a source -separated program, and/or processing of mixed commercial/multi-family for customers thatdo not participate in the source -separated recycling program. VI. SUITE OF ADDITIONAL ENVIRONMENTAL PROGRAMS TO BE CONSIDERED IN THE NEW SOLID WASTE AGREEMENT AS FINANCIAL FEASIBLE • Household hazardous waste— Hauler to provide an annual drop-off event. • Medication disposal program —Selected hauler will be required to promote local medication take -back programs. • Document shredding events— Provide one time per year. • Compost give-away events— Provide one time per year. • Multi -family bulky item collection. • Provide solid waste containers for encampment cleanups. • Recycling block party— Recognize a residential neighborhood that consistently puts out their recycling containers (set out) and has minimal contamination of recyclable materials by hosting a block party. • Environmental ambassador program— Recognize businesses and restaurants that have implemented source -reduction, reuse, recycling, and other environmental programs at City Council meetings and coordinate presentations with Chamber of Commerce and/or other community meetings. VII. ADDITIONAL ENVIRONMENTAL POLICIES FOR CONSIDERATION • Produce an environmental directory €or residents and businesses which lists all Opportunities for reuse, source -reduction, and recycling. • Support extended producer responsibility legislation for toxic and difficult to recycle items. • Support state and national legislation that requires manufacturers to reduce packaging and to incorporate recycled content materials in all packaging. October 15, 2018 February 11, 2020 8-8 City of Santa Ana Z�. 1 • CURRENT AB 341 AND AB 1826 PUBLIC EDUCATION AND OUTREACH PLAN a. List of Tier 1,11,111 Candidates (AB 1826 =1604 & AB 341=1643) i. Hauler Database 1. Food Waste (Cascadia — CalRecycle Waste Characterization) 2. Green Waste (25% Allocation Estimate) b. Source Reduction Strategy i. WAST&NOT OC - O.C. Food Donations Flyer c. Recycling Strategy L Green Waste Strategy— 25% Allocation ii. Food Waste Strategy— Cascadia Percentages based on Waste Characterization iii. Self -haul Reporting Strategy — 3`s Party Documentation d. Develop Compliance Timelines e. Outreach Strategy (AB 1826/AB 341— combined effort) i. Per Tier, Outreach Compliance Dates — PAST DUE 1. Tier I (November 2015 -April 2016) —102 Commercial Customers Businesses that generate 8 cubic yards of organic waste per week must arrange for organic waste recycling services. 2. Tier II (April 2016 — January 2017) —160 Commercial Customers Businesses that generate 4 cubic yards of organic waste per week must arrange for organic waste recycling services. 3. Tier III (January 2017 — January 2019) —1342 Commercial Customers Businesses that generate 4 cubic yards or more of commercial solid waste per week must arrange for organic waste recycling services. Draft, February 11, 2020 9-1 City of Santa Ana ii. Direct Mailing 1. City Letter —AB 1826 & AB 341 Compliance Message (to be provided by City) 2. WM Letter — Compliance Requirements/Recycling Assistance 3. Double Sided Outreach Flyer (Per Account Holder) a. AB 1826 Organics Recycling Flyer (WM developed) b. AB 341 Mandatory Commercial Outreach Flyer (WM developed) 4. Commercial Self -Reporting Forms iii. Second Mailing — AB 1826/AB341 Non -Compliance Letter/Post Card Reminder ofAB1826/341 Legislation and Available WM "Right -Sizing" Assistance iv. Customer Interaction a. AB 1826 Target — Visit and evaluate compliance at approximately 20 accounts per month (Visits may be combined with AB 341 site visits.) i. Introductory Meeting (explain. AB 1826/341 & compliance programs, provide educational materials) b. AB 341 Target — Visit and evaluate compliance at approximately 20 accounts per month (Visits may be combined with AB 1826 site visits.) i. Introductory Meeting (explain AB 1826/341 & compliance programs) ii. AB 341 - Program Training and Setup (train staff, deliver carts/bins, provide educational materials) 2. Marketing/Outreach Materials a. AB 1826 Organics Recycling Flyer b. AB 341/AB 1826 Multifamily Outreach Flyer February 11, 2020 9-2 City of Santa Ana f. Reporting/Tracking Compliance i. Track New Participants and all customer outreach —AB 1826 & AB 341 February 11, 2020 9-3 City of Santa Ana MAP OF PROPERTY ANNEXED TO THE CITY OF SANTA ANA IN DECEMBER 2019 (1) (1) Container counts included in Attachments 2 and 3 of this RFP do not include containers serviced in the newly annexed area of the City. The City will prepare an addendum to this RFP when this information becomes available. Draft, February 11, 2020 10 - 1 City of Santa Ana 60B-100 UNIVERSAL WASTE COLLECTED IN CALENDAR YEARS 2015 THROUGH 2O18 Draft, February 11, 2020 11 - 1 City of Santa Ana 60B-101 Will At Your Door �...•.......__ Special Collectlen"' Home Generated Special Material Collection Report Santa Ana Summary of Material Collected From 1/1/2015 through 12/31/2015 MATERIAL QUANTITY UOM POUNDS 9A of Total Acid Liquid 3.00 gallons 25.50 0.32% Batteries household 179.00 Pounds 179.00 2.22% Batteries lead acid 210.00 Pounds 210.00 2.61% CD/VCR/DVOltape player 16.00 Each 42.00 0.52% compact fl lamps 81.00 Each 20.25 0.25% Computer -laptop 2.00 Each 48.00 0.50%' Copier -desk 1.00 Each 25.00 0.31% CPU 9.00 Each 185-40 7.30%, CRT 4.00 Each 128,00 1.59% FluorescentTubes St. 240.00 Foot 30.00 0.37% General/Misc. 43.00 Each 344.00 4.28% Keyboard 10.00 Each 20.00 0.25% Microwave 1.00 Each 45.00 0.56% Monitor -flat 5.00 Each 50.00 0.62% Mouse 2.00 Each 3.00 0.04% Printer -desktop 10.00 Each 160.00 1.99% Speakers 2A0 Each 30.00 0.37% Stereo 1.00 Each 30.50 0.39% Telephone 2.00 Each 6.00 0.07% TV 20 and under 1.00 Each 29.66 0.37% TV 21-30 13.00 Each 865-02 10.75% TV 31 and up 15.00 Each 1,994,56 24.79% TVConsole 1.00 Each 184,66 2.30% N Rat -more than 40 2.00 Each 170,00 2.11% TV Projection 14.00 Each 3,220,00 40.02% TOTALS 8,045.55 TOTALSTOPS 59 Rokes: This report is created from data gathered at the point of collection. At Your Door Customer Service Technicians record every item collected from every home. Liquid materials are listed in detail reports as gallons. Solid items are listed as pounds, feet or each, DID: smusum_01 5/17/2016 Page 1 of 2 February 11, 2020 11 - 2 City of Santa Ana 60B-102 Home Generated Special Material Collection Report Santa Ana Summary of Material Collected From 1/1/2015 through 12/31/2015 MATERIAL QUANTITY UOM POUNDS %of Total The computer will perform calculations to convert feet, each and gallons to pounds using industry standard weights. For example, 8.54 per one gallon of used oil. Weights of solids are taken from the containers. For example, a 10g bag of fertilizer that is half -full would be recorded as 5h. Paint and other liquids are periodically weighted and the average weight is adjusted in the computer. future adjustments may resull in changes to previous reports. Electronic items are periodically weighed. The average weights used are subject to revision. Future adjustments may result In changes to previous reports. Weights do not include the weight of outbound shipping containers. The difference between total pounds shipped for recycling and total pounds collected are materials that are not recycled. These materials may be incinerated, neutralized or sent to a landfill. Some acceptable recycling processes can generate residue that is or cannot he recycled for example, contaminants such as trash packed into paint cans. DID: smccsum_01 5/17/2016 Page 2 of 2 February 11, 2020 11 - 3 City of Santa Ana 60B-103 WWM. At Your Door Special collection'" Home Generated Special Material Collection Report Santa Ana Summary of Material Collected From 1/1/2016 through 12/31/2016 MATERIAL QUANTITY UOM POUNDS %of Total Batteries household 308.00 Pounds 308.00 1.86% Batteries lead acid 57.00 Pounds 57.00 0.34% CD/VCR/DVD/tape player 4.00 Each 28.00 0.17% Cellphone w/battery 7.00 Each 14.00 0.08% compact fl lamps 168.00 Each 42.00 0.25% Computer -laptop 6.00 Each 144.00 0.87% Copier desk 1.00 Each 25.00 0.15% CPU 14.00 Each 288..40 1.7411.. CRT 2.00 Each 64.00 039% FluorescentTubes St. 516.00 Foot 64.59 0.39% Genera jUlisc. 59.00 Each 472.00 2.85% Keyboard 11.00 Each 22.00 0.13% Microwave 4.00 Each 1813.00 1A9% Monitor -flat 9.00 Each 90.00 0.54% Mouse 2.00 Each 3.00 0.02% Printer -desktop 22.00 Each 352,00 2.12% Scanner 1.00 Each 9-00 0.05V Speakers 5.00 Each 75,00 0.45% Stereo 2.00 Each 61.00 0.37% TV 20 and under 9.00 Each 266.94 1.61% TV 21-30 29.00 Each 1,929.66 11.63% TV 31 and up 32DO Each 3,989.12 24.05% TV Console 1.00 Each 184.66 1.11% TV Flat -less than 40 7,00 Each 315.00 1.90% TV Flat -more than 40 11.00 Each 935.00 5.64% TV Projection 29.00 Each 6,670.00 40.21% TOTALS 10,589.28 TOTALSTOPS 130 Notes: This report is created from data gathered at the point of collection- At Your Door Customer Service Techniclans record every Item collected from every home. DID: smcoum_01 6/14/2017 Page 1 of 2 February 11, 2020 11 - 4 City of Santa Ana Al =WE Home Generated Special Material Collection Report Santa Ana Summary of Material Collected From 1/1/2016 through 12/31/2016 MATERIAL QUANTITY UOM POUNDS %of Total Liquid materials are listed in detail reports as gallons. Solid items are listed as pounds, feet or each. The computer will perform calculations to convert feet, each and gallons to pounds using industry standard weights. For example, III per one gallon of used oil. Weights of solids are taken from the containers. For example, a 108 hag of fertilizer that is half -full would he recorded as SC Paint and other liquids are periodically weighted and the average weight is adjusted In the computer. Future adjustments may result in changes to previous reports. Electronic Items are periodically weighed. The average weights used are subject to revision. Future adjustments may result In changes to previous reports. Weights do not include the weight of outbound shipping containers. The difference between total pounds shipped for recycling and total pounds collected are materials that are not recycled. These materials may be incinerated, neutralized or sent to a landfill. Some acceptable recycling processes can generate residue that is or cannot he recycled for example, contaminants such as trash packed into paint cans. DID : smccsam_OI 6/14/2017 Page 2 of 2 February 11, 2020 11 - 5 City of Santa Ana 60B-105 yvu� At Your Door w..,.rw.eao,. Special Calfection'" Home Generated Special Material Collection Report Santa Ana Summary of Material Collected From 1/112D17 through 12/31/2017 MATERIAL QUANTITY UOM POUNDS %of Total Batteries household 132,00 Pounds 132,00 1.94% Batteries lead acid 31.00 Pounds 31-00 Il CD/VCR/DVO/tape player 2.00 Each 13.72 0.20% Cellphone w/battery 2.00 Each 1.02 0.02% compact fl lamps 111.00 Each 27.15 0.41% Computer -laptop 4,00 Each 25.24 0.37% Copier -desk 1.00 Each 21.30 091% CPU 3.00 Each 71.82 1.06% CRT 5,00 Each 159.00 2.34% FluorescentTubes St. - 180.00 Foot 22,50 0.33% General/Mist. 27,00 Each 216,00 3.18% Keyboard 4.00 Each 6.92 0.10% Microwave 11.00 Each 417.78 6.15% Monitor -fiat 2.00 Each 24.12 0.36% Mouse 1.00 Each .35 0.01% Printer -desktop 11.00 Each 156.64 2,31% Speakers 2.00 Each 19.00 0,28% Telephone 9.00 Each 10,35 0.15% TV 2C and under 4.00 Each 134.48 1.98% TV 21-30 15,00 Each 954.45 14.05% TV 31 and up 14.00 Each 1,849.96 27.24% TV Console 3.00 Each 510.45 7.52% TV Flat -less than 40 1.00 Each 20.95 0.31% TV Flat -mare than 40 7.00 Each 378.77 5.58% TV Projection 11.00 Each 1,585.32 23.34% TOTALS 6,790.89 TOTALSTOPS 75 Notes: This report is created from data gathered at the point of collection. At Your Door Customer Service Technicians record every Item collected from every home. - Liquid materials are listed in detail reports as galll - Saild Items are listed as pounds, feet or each. DID : smccsum_01 5/16/2018 Page 1 of 2 February 11, 2020 11 - 6 City of Santa Ana Home Generated Special Material Collection Report Santa Ana Summary of Material Collected From 1/1/2017 through 12/31/2017 MATERIAL QUANTITY UOM POUNDS %of Total - The computer will perform calculations to convert feet, each and gallons to pounds using lndustrystandard weights. For example,8.5# per one gallon of used oil. Weights of solids are taken from the containers. For example, a 100 hag of fertilizer that is half -full would be recorded as 54 Paint and other liquids are periodically weighted and the average weight Is adjusted In the computer. Future adjustments may result in changes to previous reports. Electronic items are periodically weighed. The average weights used are subject to revision. Future adjustments may result in changes to previous reports. Weights do not include the weight of outbound shipping containers. The difference between total pounds shipped for recycling and total pounds collected are materials that are not recycled. These materials may be incinerated, neutralized or sent to a landfill. some acceptable recycling processes can generate residue that Is or cannot be recycled for example, contaminants such as trash packed into paint cans. DID: smccsum_01 5/16/2018 Page 2 of 2 February 11, 2020 11 - 7 City of Santa Ana 60B-107 VUM. At Your Door SPPCI21 CpI PCImn' Material by Category Summary Santa Ana CA From 1/1/2018 through 17/31/7018 MATERIAL QUANTITY UOM POUNDS %of Total Electronics CD/VCR/DVD/tape player 1D Each computer laptop 6 Each Copier -desk 1 Each CPU 6 Each CRT 2 Each General/Mist. 38 Each Keyboard 1 Each Monitor -Hat 6 Each Printer -desktop 11 Each Stereo 1 Each TV 20 and under 2 Each TV 21-30 11 Each TV 31 and up 40 Each TV Flat -less than 40 5 Each TV Flat -more than 40 7 Each TV Projection 24 Each Total: 10,896.75 98.64% Universal Total: 150.38 1.36% Batteries household 218 Pounds i18.00 1.07% compactfl lamps 64 Each 16.00 0.14% FluorescentTubes St. 231 Foot 16.38 0.15% Total Pounds Collected 11,047.13 Total Pounds Sent For Recycling 10,476.59 94.84% Total Stops 83 Notes: This report is created from data gathered at the point of collection. Liquid materials are listed as gallons. solid items are listed as pounds, feet or each. Using standard guidelines, items collected by length, Item count, and liquid gallons have been converted Into a measurement of pounds. For example, 8.5lbs. per one gallon of used oil. Weights of solids are taken from the containers, For example, a 101b. bag of fertilizerthat Is half full would be estimated to be 5lbs. Paint and other liquids are periodically weighed and the average weight is adjusted in the system. Electronic items are periodically weighed. The average weights used are subject to revision. Weights are not related to nor do they include the weight of outbound shipping containers. The difference between total pounds shipped for recycling and total pounds collected are materials that are not recycled. These materials may be incinerated, neutralized or sent to a landfill. Some acceptable recycling processes can generate residue that is or cannot he recycled for example, contaminants such as trash packed Into paint cans. February 11, 2020 11-8 City of Santa Ana 60B-108 POUNDS OF BATTERIES COLLECTED IN CALENDAR YEARS 2015 THROUGH 2O18 Draft, February 11, 2020 12 - 1 City of Santa Ana 60B-109 VWM. At Your Door ..,�..�..— special collection" Home Generated Special Material Collection Report x Santa Ana Summary of Material Collected From 1/1/2015 through 12/31/2015 MATERIAL QUANTITY UOM POUNDS %of Total Batteries household 771.00 Pounds 771.00 100.00% TOTALS 771.00 TOTALSTOPS a Motes: This report is created from data gathered at the point of collection. At Your Door Customer Service Technicians record every item collected from every home. Liquid materials are listed in detail reports as gallons. solid items are listed as pounds, feet or each. The computer will perform calculations to convert feet, each and gallons to pounds using Industry standard weights. For example, 8.54 per one gallon of used oil. Weights of solids are taken from the containers. For example, a 10#bag of fertilizer that is half -full would be recorded as SO. Paint and other liquids are periodically weighted and the average weight is adjusted In the computer. Future adjustments may result in changes to previous reports. Electronic Items are periodically weighed. The average weights used are subject to revision. Future adjustments may result in changes to previous reports. Weights do not include the weight of outbound shipping containers. The difference between total pounds shipped for recycling and total pounds collected are materials that are not recycled. These materials may be incinerated, neutralized or sent to a landfill. Some acceptable recycling processes can generate residue that is or cannot be recycled for example, contaminants such as trash packed into paint cans. DID : smccsum_OS 5/17/2016 February 11, 2020 12 - 2 Page 1 of 1 City of Santa Ana 60B-110 VUM. At Your Door un...r..�.. Spacialenllectinn' Home Generated Special Material Collection Report x Santa Ana Summary of Material Collected From 1/1/2016 through 12/31/2016 MATERIAL QUANTITY UOM POUNDS 9b of Total Batteries household 91S.00 Pounds 915.00 100.00% TOTALS 915.00 Notes: This report as created from data gathered at the point of collection. At Your Door Customer Service Technicians record every item collected from every home. Liquid materials are listed in detail reports as gallons. Solid Items are listed as pounds, feet or each. - The computer will perform calculations to convert feet, each and gallons to pounds using Industry standard weights. For example,&.5M per one gallon of used oil. Weights of solids are taken from the containers. For example, a lea bag of fertilizer that is halffullwould be recorded as 50. Paint and other liquids are periodically weighted and the average weight is adjusted in the computer. Future adjustments may result in changes to previous reports. Electronic items are periodically weighed. The average weights used are subject to revision. Future adjustments may result in changes to previous reports. Weights do not include the weight of outbound shipping containers. The difference between total pounds shipped for recycling and total pounds collected are materials that are not recycled. These materials may be incinerated, neutralized or sent to landfill. Some acceptable recycling processes can generate residue that is or cannot be recycled for example, contaminants such as trash Packed into paint cans. DID : smccsum 01 5I1412017 Page 1 of 1 February 11, 2020 12 - 3 City of Santa Ana 60B-111 At Your Door Special collect on' Home Generated Special Material Collection Report x Santa Ana Summary of Material Collected From 1/1/2017 through 12/31/2017 MATERIAL QUANTITY UOM POUNDS %of Total Batteries household 438.00 Pounds 438.00 100.00% TOTALS 438.00 TOTALSTOPS 2 Notes: This report is created from data gathered at the paint of collection. At Your Door Customer Service Technicians record every item collected from every home. Liquid materials are listed in detail reports as gallons. Solid Items are listed as pounds, feet or each, The computer will perform calculations to convert feet, each and gallons to pounds using industry standard weights. rot example, 8.5g per one gallon of used oil. `Heights of solids are taken from the containers. For example, a 10ft bag of fertilizer that is halffullwould be recorded as 59. Paint and other liquids are periodically weighted and the average weight is adjusted in the computer. Future adjustments hi result in changes to previous reports. Electronic items are periodically weighed. The average weights used are subject to revision. Future adjustments Tay result in changes to previous reports. weights do nut include the weight of outbound shipping containers. The difference between total pounds shipped for recycling and total pounds collected are materials that are not recycled. These materials may be incinerated, neutralized or sent to a landfill. Some acceptable recycling processes can generate residue that is or cannot be recycled for example, contaminants such as trash packedintopaint cans. DID : smccsum_01 5/16/2019 February 11, 2020 12 - 4 Page i of 1 City of Santa Ana 60B-112 At Your Door w.s er...omr. Special collection - Home Generated Special Material Collection Report x Santa Ana Summary of Material Collected From 1/1/2018 through 12/31/2018 MATERIAL QUANTITY UOM POUNDS %of Total Batteries household 1,361.00 Pounds 1,361.00 100.00% TOTALS 1,361.00 TOTALSTOPS 22 Notes. This report is created from data gathered at the point of collection. Liquid materials are listed as gallons. Solid items are listed as pounds, feet or each. Using standard guidelines, items collected by length, item count, and liquid gallons have been converted into a measurement of pounds. For example, 8.51 as. per one gallon of used oil. Weights of solids are taken from the containers. For example, a 10 Ib. bag of fertiliserth at is half -full would be estimated to be 51Its. Paint and other liquids are periodically weighed and the average weight is adjusted in the system. Electronic items are periodically weighed. The average weights used are subject to revision. Weights are not related to nor do they include the weight of outbound shipping containers. The difference between total pounds shipped for recycling and total pounds collected are materials that are not recycled. These materials maybe incinerated, neutralized or sent to a landfill. Some acceptable meyding processes can generate residue that is or cannot be recycled for example, contaminants such as trash packed into paint cans. 3/25/2019 Page 1 of 1 February 11, 2020 12 - 5 City of Santa Ana 60B-113 ATTACHMENT AGREEMENT BETWEEN CITY OF SANTA ANA AND FOR COLLECTION AND HANDLING OF SOLID WASTE GENERATED, PRODUCED AND/OR ACCUMULATED IN THE CITY OF SANTA ANA Draft, February 11, 2020 60B-114 AGREEMENT BETWEEN CITY OF SANTA ANA AND FOR COLLECTION AND HANDLING OF SOLID WASTE GENERATED, PRODUCED AND/OR ACCUMULATED IN THE CITY OF SANTA ANA TABLE OF CONTENTS RECITALS............................................................................................................... Pa&e ................... I ARTICLE1................................................................................................................................................4 INI T I ON S........................................................................................................................................................................... 4 1.1 AB 1594...................................................................................................................................................................4 1.2 AB 1826...................................................................................................................................................................4 1., AB 141.....................................................................................................................................................................4 1.4 AB939.....................................................................................................................................................................4 1.5 AFFILIATE.................................................................................................................................................................5 1.6 AGREEMENT.............................................................................................................................................................5 1.7 APPLICABLE LAw.....................................................................................................................................................5 1.8 BILLINGS..................................................................................................................................................................6 1.9 BIN.........................................................................................................................................................................6 1.10 BIN SERVICE.............................................................................................................................................................6 1.11 BULKY ITEMS...........................................................................................................................................................6 1.12 CALRECYCLE............................................................................................................................................................7 1.13 CART........................................................................................................................................................................7 1.14 CITY.........................................................................................................................................................................7 1.15 COLLECT/COLLECTION.............................................................................................................................................7 1.16 COMMERCIAL...........................................................................................................................................................7 1.17 COMMERCIAL PREMISES...........................................................................................................................................7 1.18 CONSTRUCTION AND DEMOLITION DEBRIS...............................................................................................................8 1.19 CONTAINERS.............................................................................................................................................................8 1.20 CONTRACTOR........................................................................................................................................................... 8 1.21 CONTRACTORS PROPOSAL....................................................................................................................................... 8 1.22 CONTRACTOR COMPENSATION.................................................................................................................................9 1.23 CPI.........................................................................................................................................................................9 1.24 CUSTOMER................................................................................................................................................................9 1.25 DISPOSAL..................................................................................................................................................................9 1.26 DISPOSAL SITE(S).....................................................................................................................................................9 1.27 DIVERT/DIVERSION..................................................................................................................................................9 1.28 ELECTRONIC WASTE OR E-WASTE......................................................................................................................... 10 February 11, 2020 60B=115 City of Santa Ana - DRAFT 1.29 ENVIRONMENTAL LAvt........................................................................................................................................... 10 1.30 EXECUTIVE DIRECTOR............................................................................................................................................ 10 1.31 FACILITY.................................................................................................................................................................10 1.32 FOOD WASTE..........................................................................................................................................................10 1.31 FRANCHISE............................................................................................................................................................. 11 1.34 FRANCHISE FEE...................................................................................................................................................... 11 1.35 GROSS RECEIPTS..................................................................................................................................................... 11 1.36 HAZARDOUS MATERIAL......................................................................................................................................... 11 1.37 HOUSEHOLD HAZARDOUS WASTE ("HHW„).......................................................................................................... 12 1.38 MATERIALS RECOVERY FACILITY (..MRF)........................................................................................................... 12 1.39 MI , ED WASTE PROCESSING.................................................................................................................................. 12 1.40 MULTI -FAMILY PREMISES...................................................................................................................................... 13 1.41 ORANGE COUNTY DISPOSAL SYSTEM..................................................................................................................... 13 1.42 ORGANIC MATERIALS............................................................................................................................................. 13 1.41 ORGANIC MATERIALS PROCESSING FACILITY........................................................................................................ 13 1.44 OwNER...................................................................................................................................................................13 1.45 PERSON...................................................................................................................................................................13 1.46 PREMISES................................................................................................................................................................ 14 1.47 RATE YEAR.............................................................................................................................................................14 1.48 RECYCLING............................................................................................................................................................. 14 1.49 RECYCLABLE MATERIALS...................................................................................................................................... 14 1.50 REFUSE...................................................................................................................................................................14 1.51 RESIDENTIAL.......................................................................................................................................................... 14 1.52 RESIDENTIAL CURBSIDE SERVICEUNIT.................................................................................................................. 14 1.51 RESIDENTIAL PREMISES.......................................................................................................................................... 15 1.54 ROLL -OFF Box.......................................................................................................................................................15 1.55 SB 1183..................................................................................................................................................................15 1.56 SHARPS...................................................................................................................................................................15 1.57 SOLIDWASTE.........................................................................................................................................................15 1.58 SOLID WASTE HANDLING SERVICES....................................................................................................................... 16 1.59 SOURCE SEPARATION/SOURCE-SEPARATED........................................................................................................... 16 1.60 STATE.....................................................................................................................................................................16 1.61 TRANSFORMATION.................................................................................................................................................. 16 1.62 TRANSFER STATION................................................................................................................................................ 17 1.63 UNIVERSAL WASTE............................................................................................................................................... 17 1.64 WASTE GENERATOR............................................................................................................................................... 17 1.65 YARD WASTE.........................................................................................................................................................17 ARTICLE 2.... ..................................................................18 GRANT AND ACCEPTANCE OF FRANCHISE................................................................................................................18 2.1 GRANT AND ACCEPTANCE OF FRANCHISE, INDEMNITY OF AWARD........................................................................ 18 2.2 EXCLUSIVE NATURE OF FRANCHISE....................................................................................................................... 18 2.3 EFFECTIVE DATE.................................................................................................................................................... 19 2.4 TERM OF AGREEMENT............................................................................................................................................ 19 2.5 EXTENSIONPERIOD................................................................................................................................................ 19 2.5.1 Mutual Option to Extend...............................................................................................................................19 2.5.2 City Option to Extend....................................................................................................................................20 2.6 REPRESENTATIONS AND WARRANTIES OF CONTRACTOR........................................................................................ 20 2.7 CONDITIONS TO EFFECTIVENESS OF AGREEMENT................................................................................................... 22 2.8 DELEGATION OF AUTHORITY.................................................................................................................................. 22 2.9 LIMITATIONS TO SCOPE.......................................................................................................................................... 22 2.10 CITY'S RIGHT To DIRECT CHANGES........................................................................................................................ 25 2.10.1 General..........................................................................................................................................................25 2.10.2 New Diversion Programs..............................................................................................................................26 2.10.3 Cih,'s Right to Acquire Services....................................................................................................................26 February 11, 2020 City of Santa Ana - DRAFT 60B" 116 2.11 OWNERSHIP OF SOLID WASTE AND CITY'S RIGHT TO DIRECT SOLID WASTE......................................................... 26 2.12 CONTRACTOR STATUS............................................................................................................................................ 27 2.13 CONTRACTOR AUTHORIZATION.............................................................................................................................. 28 2.14 ANNEX;ATIoxs........................................................................................................................................................28 2.15 PERMITS AND LICENSES.......................................................................................................................................... 28 ARTICLE3..............................................................................................................................................29 FRANCHISE FEE, NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM FEE, VEHICLE IMPACT FEE, & ADMINISTRATIVE FEE.........................................................................................................................................29 3.1 FRANCHISE FEE...................................................................................................................................................... 29 3.2 NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) FEE............................................................ 29 3.3 VEHICLE IMPACT FEE............................................................................................................................................. 30 3.4 ADMINISTRATIVE FEE.............................................................................................................................................31 3.5 TIME AND METHOD OF FEE PAYMENTS TO CITY..................................................................................................... 31 ARTICLE4..............................................................................................................................................33 DIRECTSERVICES...............................................................................................................................................................33 4.1 SERVICES TO BE PROVIDED BY CONTRACTOR - GENERAL...................................................................................... 33 4.2 RESIDENTIAL CURBSIDE SERVICE UNIT SERVICES.................................................................................................. 33 4.2.1 Residential Curbside Service Unit Refuse Collection................................................................................... 33 4.2.2 Cart Overage................................................................................................................................................. 34 4.2.3 Residential Curbside Service Unit Recyclable Materials Collection............................................................ 34 4.2.4 Residential Curbside Service Unit Organic Materials Collection................................................................ 35 4.2.5 Senior and Mobile Home Low Generator Customers................................................................................... 35 4.2.6 Section Deleted.............................................................................................................................................. 35 4.2.7 Contamination Warning Notice —Residential Curbside Service Unit Customers........................................35 4.2.8 Holiday Tree Collection Program................................................................................................................. 36 4.2.9 Walk -Out Service..........................................................................................................................................37 4.2.10 On -Call Bulky Item Pickup - Residential Curbside Service Unit Customers ................................................ 38 4.2.11 Sharps Collection Program........................................................................................................................... 39 4.2.12 Used Motor Oil Recycling and Used Motor Oil Filter Collection................................................................ 39 4.2.13 Universal Waste Collection........................................................................................................................... 39 4.2.14 Recycling Reward Program..........................................................................................................................40 4.3 COMMERCIAL AND MULTI -FAMILY SERVICES........................................................................................................ 40 4.3.1 Commercial and Multi -Family Customer Refuse Collection........................................................................ 40 4.3.2 Commercial Cart Service ..............................................................................................................................41 4.3.3 Roll -off Box Service....................................................................................................................................... 41 4.3.4 Temporary Bin Service ..................................................................................................................................42 4.3.5 Commercial and Multi -Family Recycling..................................................................................................... 42 4.3.5.1 Site Visits, Education and Outreach.............................................................................................................. 42 4.3.5.2 Processing of Mixed Waste...........................................................................................................................44 4.3.6 Commercial and Multi -Family Organics Collection..................................................................................... 44 4.3.6.1 Site Visits, Education and Outreach — Commercial and Multi -Family Organics Recycling ........................ 44 4.3.6.2 Organics Waste Recycling Program Cost..................................................................................................... 47 4.3.7 Roll -off Box Organic Materials Collection Service...................................................................................... 47 4.3.8 Food Rescue and Donation Program............................................................................................................ 47 4.3.9 Contamination Warning Notice — Commercial and Multi -Family Premises Bin Customers ........................ 47 4.3.10 Scout Service .................................................................................................................................................48 4.3.11 Bin Pushout Service...................................................................................................................................... 49 4.3.12 Locking Bins.................................................................................................................................................. 49 4.3.13 Return Trip Fee............................................................................................................................................. 49 4.3.14 On -Call Bulky Item Pickup —Multi -Family Premises with Refuse Bin Service and Commercial Premises Customers.................................................................................................................................................................... 50 4.3.15 Holiday Tree Collection — Multi -Family Bin Customers.............................................................................. 50 4.4 CITY SERVICES CITY GOVERNMENT OPERATIONS)............................................................................................... 50 February 11, 2020 60Biil 7 City of Santa Ana - DRAFT 4.4.1 City- Government Operations........................................................................................................................ 50 4.4.2 Construction and Demolition from City Government Operations................................................................ 50 4.4.3 CiiySponsoredEvents...................................................................................................................................51 4.4.4 Parkway Cleanup Following Garage Sales.................................................................................................. 51 4.4.5 WeeklvAllevCleanups ..................................................................................................................................52 4.4.6 Grant .Administration....................................................................................................................................52 4.4.7 Public Education and Outreach Consultant. ................................................................................................. 52 4.4.8 Batten, RecvclingProgram ...........................................................................................................................53 4.4.9 Procurement of Recovered Organic Waste Products.................................................................................... 53 4.4.9.1 Contractor Warranty of Recovered Organic Waste Products....................................................................... 54 4.5 COMMUNITY SERVICES........................................................................................................................................... 54 4.5.1 Neighborhood Cleanups................................................................................................................................ 54 4.5.2 Household Hazardous Waste Drop -Off Events.............................................................................................54 4.5.3 Shredding Service Event................................................................................................................................55 4.5.4 Compost Giveaway........................................................................................................................................ 55 4.5.5 MedicationTakebackProgram.....................................................................................................................55 4.5.6 Environmental Ambassador Program........................................................................................................... 56 4.6 DIVERSION AND PROCESSING REQUIREMENTS........................................................................................................ 56 4.6.1 Minimum Recvcling Requirements ................................................................................................................56 4.6.2 Organic !!LlaterialsProcessing ......................................................................................................................57 4.6.3 End Uses for Organic Materials................................................................................................................... 57 4.6.4 Bulky Item Diversion..................................................................................................................................... 57 4.6.5 Construction and Demolition Debris Diversion............................................................................................ 58 4.6.6 Diversion of Electronic, Universal and Other Special Wastes......................................................................58 4.6.7 Marketing and Sale of Recyclable Materials................................................................................................58 4.7 OPERATIONS........................................................................................................................................................... 59 4.7.1 Schedules.......................................................................................................................................................59 4.7.2 Missed Pickups..............................................................................................................................................60 4.7.3 Vehicles.........................................................................................................................................................60 4.7.4 Containers.....................................................................................................................................................63 4.7.4.1 Contractor -Provided Carts...........................................................................................................................63 4.7.4.2 Cart Reparab ility or Replacement ................................................................................................................67 4.7.4.3 Bins............................................................................................................................................................... 68 4.7.4.4 Roll-offBozes................................................................................................................................................69 4.7.4.5 Graffiti Removal ............................................................................................................................................69 4.7.4.6 Overflowing Containers................................................................................................................................69 4.7.4.7 Litter Abatement............................................................................................................................................70 4.7.4.8 Collection of Former Contractor's Containers.............................................................................................71 4.7.5 Personnel......................................................................................................................................................71 4.7.5.1 Employment of Former Contractor Employees............................................................................................. 72 4.7.5.2 Job Fair......................................................................................................................................................... 72 4.7.5.3 Identification Required.................................................................................................................................. 72 4.7.5.4 Fees and Gratuities....................................................................................................................................... 72 4.7.6 Non-Discrimination.......................................................................................................................................73 4.7.7 Coordination with Street Sweeping Services................................................................................................. 73 4.7.8 Change in Collection Schedule.....................................................................................................................73 4.7.9 Report of Accumulation of Solid Waste; Unauthorized Dumping.................................................................73 4.8 CONTINGENCY PLAN.............................................................................................................................................. 74 4.9 TRANSPORTATION OF SOLID WASTE....................................................................................................................... 74 4.10 DISPOSAL OF REFUSE.............................................................................................................................................. 74 4.11 FLOW CONTROL OPTION......................................................................................................................................... 75 4.12 COUNTY AGREEMENT............................................................................................................................................. 76 4.11 STATUS OF DISPOSAL SITE...................................................................................................................................... 76 4.14 SOLID WASTE FACILITY CAPACITY GUARANTEE.................................................................................................... 76 4.15 COMMINGLING OF REFUSE COLLECTION ROUTES................................................................................................... 76 4.16 ROUTEAUDIT.........................................................................................................................................................77 February 11, 2020 iv City of Santa Ana - DRAFT 60B-118 4.17 SERVICE EXCEPTIONS; HAZARDOUS MATERIAL NOTIFICATIONS............................................................................ 78 4.18 CONTRACTOR/CITY MEETINGS............................................................................................................................... 79 ARTICLE5..............................................................................................................................................80 OTHERSERVICES................................................................................................................................................................80 5.1 SERVICES AND CUSTOMER BILLING........................................................................................................................ 80 5.1.1 Residential Curbside Service Unit Billing..................................................................................................... 80 5.1.2 Senior and Mobile Home Low Generator Rate............................................................................................. 80 5.1.3 Multi -Family and Commercial Cart Service, and Multi -Family and Commercial/Industrial Bin Services Billing 80 5.1.4 Roll -Off Billing..............................................................................................................................................81 5.1.5 Special Bin Services and Customer Service Requirements........................................................................... 81 5.1.6 Other Optional Services................................................................................................................................ 81 5.1.7 Review of Billings..........................................................................................................................................81 5.1.8 Suspension of Service Due to Non-Payment................................................................................................. 82 5.2 CUSTOMER SERVICE............................................................................................................................................... 82 5.2.1 Local Office...................................................................................................................................................82 5.2.2 Complaint Documentation ............................................................................................................................83 5.2.3 Resolution of Customer Complaints.............................................................................................................. 83 5.2.4 City Liaison................................................................................................................................................... 84 5.2.5 Route Supervisor........................................................................................................................................... 84 5.3 EDUCATIoNANDPUBLIc AwARENEss................................................................................................................... 84 5.3.1 General..........................................................................................................................................................84 5.3.2 AB 341, AB 1826, and SB 1383 Implementation Plan.................................................................................. 85 5.3.3 Implementation and On -going Education Requirements.............................................................................. 86 5.3.4 Community Events......................................................................................................................................... 89 5.3.5 Media Relations............................................................................................................................................89 5.4 WASTE GENERATION/CHARACTERIZATION STUDIES.............................................................................................. 89 ARTICLE 6 COMPANY COMPENSATION AND RATES..............................................................90 6.1 GENERAL................................................................................................................................................................ 90 6.2 INITIAL RATES........................................................................................................................................................ 90 6.3 SCHEDULE OF FUTURE ADJUSTMENTs.................................................................................................................... 90 6.4 METHOD OF ADJUSTMENTS.................................................................................................................................... 91 6.4.1 General..........................................................................................................................................................91 6.4.2 Cost Component and Rate Adjustment Indexes............................................................................................. 91 6.4.3 Rate Adjustment Steps for Curbside Services and Bin Services.................................................................... 92 6.4.4 Rate AdjustmentforPermanent Roll -Off Box...............................................................................................93 6.4.5 Adjustment for Contractor's Monthly Compensation for Other Services ..................................................... 95 6.4.6 Rate Adjustment for Optional Construction and Demolition Roll -Off Box and Bin Services ....................... 95 6.5 EXTRAORDINARYADNSTMEmrs............................................................................................................................ 95 ARTICLE7..............................................................................................................................................97 REVIEW OF SERVICES AND PERFORMANCE.............................................................................................................97 7.1 PERFORMANCE HEARING........................................................................................................................................ 97 ARTICLE8..............................................................................................................................................99 RECORDS, REPORTS AND INFORMATION REQUIREMENTS .................................................................................99 8.1 GENERAL................................................................................................................................................................ 99 8.2 RECORDS................................................................................................................................................................ 99 8.2.1 General..........................................................................................................................................................99 8.2.2 Financial Records.......................................................................................................................................100 8.2.3 Solid Waste Records....................................................................................................................................100 8.2.4 CERCLA Defense Records ..........................................................................................................................101 8.2.5 Disposal Records........................................................................................................................................102 February 11, 2020 v 60B-119 City of Santa Ana - DRAFT 8.2.6 Other Programs'Records............................................................................................................................102 8.2.7 Audit............................................................................................................................................................102 8.2.8 Payments and Refunds................................................................................................................................103 8.3 REPORTS...............................................................................................................................................................104 8.3.1 Report Formats and Schedule.....................................................................................................................104 8.3.2 Monthly Reports..........................................................................................................................................104 8.3.3 Quarterly Reports........................................................................................................................................105 8.3.4 Annual Report.............................................................................................................................................106 8.3.5 Financial Report.........................................................................................................................................106 8.4 REPORTING ADVERSE INFORMATION.................................................................................................................... 107 8.5 RIGHT TO INSPECT RECORDS................................................................................................................................ 107 8.6 FAILURE To REPORT............................................................................................................................................. 108 ARTICLE9............................................................................................................................................109 INDEMNIFICATION, INSURANCE AND BOND............................................................................................................109 9.1 INDEMNIFICATION................................................................................................................................................. 109 9.2 HAZARDOUS MATERIAL INDEMNIFICATION.......................................................................................................... 110 9.3 AB 939 INDEMNIFICATION AND GUARANTEE....................................................................................................... 112 9.4 INSURANCE........................................................................................................................................................... 112 9.5 FAITHFUL PERFORMANCE BOND........................................................................................................................... 114 9.6 FAITHFUL PERFORMANCE LETTER OF CREDIT...................................................................................................... 114 9.7 FORFEITURE OF PERFORMANCE BOND.................................................................................................................. 114 9.8 FORFEITURE OF LETTER OF CREDIT...................................................................................................................... 115 9.9 PERFORMANCE SECURITY BEYOND SERVICE TERM.............................................................................................. 115 ARTICLE10..........................................................................................................................................116 CITY'S RIGHT TO PERFORM SERVICE.......................................................................................................................116 10.1 GENERAL..............................................................................................................................................................116 10.2 TEMPORARY POSSESSION OF CONTRACTOR'S PROPERTY...................................................................................... 117 10.3 BILLING AND COMPENSATION TO CITY DURING CITY'S POSSESSION.................................................................... 117 10.4 CITY'S RIGHT TO RELINQUISH POSSESSION........................................................................................................... 118 10.5 CITY'S POSSESSION NOT A TAKING...................................................................................................................... 118 10.6 DURATION OF CITY'S POSSESSION........................................................................................................................ 118 ARTICLE11..........................................................................................................................................120 DEFAULT, REMEDIES AND LIQUIDATED DAMAGES..............................................................................................120 11.1 EVENTS OF DEFAULT............................................................................................................................................ 120 11.2 CRIMINAL ACTIVITY OF CONTRACTOR................................................................................................................. 123 11.3 NOTICE, HEARING AND APPEAL OF CONTRACTOR BREACH-, ........ 123 11.4 LIQUIDATED DAMAGES........................................................................................................................................ 124 11.5 EXCUSE FROM PERFORMANCE.............................................................................................................................. 130 11.6 NOTICE, HEARING AND APPEAL OF CITY BREACH................................................................................................ 131 11.7 ASSURANCE OF PERFORMANCE............................................................................................................................ 132 11.8. CONTRACTOR'S CLAIM OF DEFAULT BY CITY...................................................................................................... 132 ARTICLE12..........................................................................................................................................133 OTHER AGREEMENTS OF THE PARTIES...................................................................................................................133 12.1 RELATIONSHIP OF PARTIES................................................................................................................................... 133 12.2 COMPLIANCE WITH LAw....................................................................................................................................... 133 12.3 GOVERNINGLAw.................................................................................................................................................133 12.4 JURISDICTION........................................................................................................................................................133 12.5 ASSIGNMENT........................................................................................................................................................ 134 12.6 AFFILIATED COMPANIES....................................................................................................................................... 136 12.7 CONTRACTING OR SUBCONTRACTING................................................................................................................... 136 12.8 BINDING ON ASSIGNS............................................................................................................................................ 136 February 11, 2020 vi City of Santa Ana - DRAFT 60B-120 12.9 TRANSITION TO NEXT CONTRACTOR.................................................................................................................... 137 12.10 PARTIES IN INTEREST............................................................................................................................................138 12.11 WAIVER................................................................................................................................................................138 12.12 CONTRACTOR'S INVESTIGATION........................................................................................................................... 138 12.13 CONDEMNATION...................................................................................................................................................138 12.14 NOTICE.................................................................................................................................................................138 12.15 REPRESENTATIVES OF THE PARTIES...................................................................................................................... 139 12.16 CITY FREE TO NEGOTIATE WITH THIRD PARTIES.................................................................................................. 139 12.17 COMPLIANCE WITH MUNICIPAL CODE.................................................................................................................. 140 12.18 PRIVACY...............................................................................................................................................................140 12.19 COOPERATION FOLLOWING TERMINATION........................................................................................................... 140 12.20 COMPLIANCE WITH IMMIGRATION LAWS.............................................................................................................. 140 12.21 PROPRIETARY INFORMATION, PUBLIC RECORDS................................................................................................... 141 12.22 GUARANTEE OF CONTRACTOR'S PERFORMANCE................................................................................................... 141 ARTICLE13..........................................................................................................................................142 MISCELLANEOUS AGREEMENTS.................................................................................................................................142 13.1 ENTIREAGRFEMENT............................................................................................................................................. 142 13.2 SECTION HEADINGS.............................................................................................................................................. 142 13.3 REFERENCES TO LAWS AND OTHER AGREEMENTS............................................................................................... 142 13.4 INTERPRETATION..................................................................................................................................................142 13.5 AGREEMENT.........................................................................................................................................................142 13.6 SEVERABILITY......................................................................................................................................................143 13.7 ExHIBITS..............................................................................................................................................................143 13.8 NoN-WAIVER PROVISION.....................................................................................................................................143 13.9 ATToRNEYs' FEES................................................................................................................................................143 Exhibits 1. Contractor's Proposal 2. Initial Maximum Rates 3. Example Rate Adjustment Formulas 4. Corporate Guarantee 5. Contractor's Faithful Performance Bond 6. Notary Certification 7. County Waste Disposal Agreement 8. AB 341, AB 1826, and SB 1383 Implementation Plan February 11, 2020 60Bvli 2 City of Santa Ana - DRAFT RECITALS This Franchise Agreement ("Agreement') is entered into this day of , 2021, by and between the City of Santa Ana ("City") and ("Contractor"), for the Collection, transportation, Recycling, processing, and Disposal of Solid Waste and other services related to meeting the goals and requirements of the California Integrated Waste Management Act. Recitals WHEREAS, the Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989 (AB 939) (California Public Resources Code Section 40000 et seq.), has declared that it is in the public interest to authorize and require local agencies to make adequate provisions for Solid Waste handling within their jurisdictions to meet the goals and requirements of AB 939; and, WHEREAS, pursuant to California Public Resources Code Section 40059(a)(2), the City Council of the City of Santa Ana has determined that the public health, safety, and well- being require that an exclusive franchise be awarded to a qualified company for the Collection, transfer and transportation, Recycling, processing, and Disposal of Solid Waste and other services related to meeting the Diversion goals required by AB 939, and other requirements of the California Integrated Waste Management Act; and, WHEREAS, the Legislature of the State of California, in California Public Resources Code Section 41780 et seq., has declared a mandatory commercial Recycling program and that it is the policy goal of the state that not less than 75 percent of Solid Waste generated be source reduced, recycled, or composted by the year 2020, and annually thereafter; and, WHEREAS, the Legislature of the State of California, in California Public Resources Code Section 41781.3 et seq., has declared that as of January 1, 2020, the use of green material as landfill alternative daily cover will no longer constitute diversion through recycling and will instead be considered disposal in terms of measuring a jurisdictions annual 50 percent per capita disposal rate; and, WHEREAS, California Public Resources Code Section 42649 et seq., requires a mandatory commercial organics waste diversion program; and, February 11, 2020 60B1 Ann City of Santa Ana - DRAFT WHEREAS, the Short -Lived Climate Pollutants Bill of 2016 (SB 1383) establishes regulatory requirements for jurisdictions, generators, haulers, solid waste facilities, and other entities to support achievement of state-wide organic waste disposal reduction targets; and, WHEREAS, SB 1383 requires jurisdictions to implement collection programs, meet processing facility requirements, conduct contamination monitoring, provide education, maintain records, submit reports, monitor compliance, conduct enforcement and fulfill other requirements; and, the City has chosen to delegate some of its responsibilities to Contractor, acting as the City's designee, through this Agreement; and, WHEREAS, the City declares its intention of maintaining reasonable rates and quality service related to the Collection, transportation, Recycling, processing, and Disposal of Solid Waste and other services; and, WHEREAS, the current franchise agreement will expire on June 30, 2022; and, WHEREAS, in response to a Request for Proposals, the Contractor has submitted a proposal to the City and the City selected the Contractor on the competitive advantages of that proposal over other proposals received by the City; and WHEREAS, City and Contractor ("Parties') hereto desire to enter said Agreement; and, WHEREAS, City and Contractor are mindful of the provisions of the laws governing the safe Collection, transport and transportation, Recycling, processing and Disposal of Solid Waste, including AB 939, the Resource Conservation and Recovery Act ("RCRA"), and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). City and Contractor desire to leave no doubts as to their respective roles and to memorialize that by entering into this Agreement, City is not thereby becoming an "arranger" or a "generator" as those terms are used in CERCLA, and that it is Contractor, not City, who is "arranging for" the Collection from premises in the City, transport for Disposal, composting or other processing, and Recycling of municipal Solid Waste which may contain Hazardous Material; and further to confirm that as a material inducement to City entering into this Agreement, Contractor has agreed to fully indemnify City in connection with any claims, losses, liabilities, lawsuits or actions relating to the inadvertent or intentional Collection, transportation and/or Disposal of Hazardous Materials that may occur in connection with Contractor's performance under this Agreement, and February 11, 2020 2 City of Santa Ana - DRAFT 60B-123 WHEREAS, the City Council of the City of Santa Ana, hereby desires that Contractor be engaged to provide for both the Collection of Solid Waste within the corporate limits of the City of Santa Ana and the transportation of such Solid Waste to appropriate places for processing, Recycling, Organics Diversion, and Disposal, and to perform such services on the terms and conditions set forth in this Agreement; and WHEREAS, Contractor has agreed, as part of this Agreement, acting as an independent contractor to provide such personnel, equipment and supplies as are necessary to ensure City complies with the requirements of Public Resources Code Section 49100 et seq., WHEREAS, Contractor agrees to and acknowledges that it shall arrange for the proper Disposal of all Solid Waste Collected in City and City is not instructing Contractor how to Collect, process and dispose of Solid Waste. NOW, THEREFORE, for the reasons recited above, and in consideration of the respective and mutual covenants and promises hereinafter contained and made, and subject to all the terms and conditions hereof, the parties hereto do hereby agree as follows: February 11, 2020 6083124 City of Santa Ana - DRAFT 1.1 1.2 1.3 1.4 ARTICLE 1 DEFINITIONS Whenever any term used in this Agreement has been defined by the provisions of Chapter 16, Article II, Section16.29 of the Santa Ana Municipal Code or by Division 30, Part 1, Chapter 2 of the California Public Resources Code, the definitions in the Municipal Code or the Public Resources Code shall apply unless the term is otherwise defined in this Agreement, in which case this Agreement shall control. Except as provided in Article 1, words beginning with lower case letters are being used with their common ordinary meanings, not as defined terms. Otherwise, the following capitalized words and terms used in this Agreement shall have the following respective meanings: AB 1594 "AB 1594" means that per California Public Resources Code Section 41781.3 et seq., commencing January 1, 2020, the use of green material as landfill alternative daily cover does not constitute diversion through recycling and shall be considered disposal. "AB 1826" means the Organic Waste Recycling Act of 2014 (Chapter 727, Statutes of 2014 modifying Division 30 of the California Public Resources Code), also commonly referred to as "AB 1826, ' as amended, supplemented, superseded, and replaced from time to time. AB 341 "AB 341" means the California Jobs and Recycling Act of 2011 (Chapter 476, Statutes of 2011 [Chesbro, AB 341]), also commonly referred to as "AB 341," as it may be amended supplemented, superseded, or replaced from time to time. ::• "AB 939" means the California Integrated Waste Management Act of 1989 (California Public Resources Code Section 40000 et seg.), as it may be amended, supplemented, superseded, or replaced from time to time. February 11, 2020 6 8412 5 City of Santa Ana - DRAFT 1.5 Affiliate "Affiliate" means all businesses (including corporations, limited and general partnerships and sole proprietorships) which are directly or indirectly related to Contractor by virtue of direct or indirect ownership interest or common management shall be deemed to be "Affiliated with" Contractor and included within the term "Affiliates" as used herein. An Affiliate shall include a business in which Contractor owns a direct or indirect ownership interest, a business which has a direct or indirect ownership interest in Contractor and/or a business which is also owned, controlled or managed by any business or individual which has a direct or indirect ownership interest in Contractor. For purposes of determining whether an indirect ownership interest exists, the constructive ownership provisions of Section 318(a) of the Internal Revenue Code of 1986, as in effect on the date of this Agreement, shall apply; provided, however, that (i) "ten percent (10%")" shall be substituted for "fifty percent (50%")" in Section 318(a)(2)(C) and in Section 318(a)(3)(C) thereof; and (ii) Section 318(a)(5)(C) shall be disregarded. For purposes of determining ownership under this paragraph and constructive or indirect ownership under Section 318(a), ownership interest of less than ten percent (10%") shall be disregarded and percentage interests shall be determined on the basis of the percentage of voting interest or value which the ownership interest represents, whichever is greater. Being an Affiliate does not exempt a business from the application of assignment requirements under Section 12.5. 1.6 Agreement "Agreement" means this Franchise Agreement between City and Contractor for Collection, transportation, Recycling, processing and Disposal of Solid Waste, and other services related to meeting the goals and requirements of AB 939, including all exhibits and attachments, and any amendments thereto. 1.7 Applicable Law "Applicable Law" means all statutes, rules, regulations, guidelines, actions, determinations, Permits, orders, or requirements of the United States, State, county, City and local and regional government authorities and agencies having applicable jurisdiction, that apply to or govern the Facility, the Site or the performance of the Parties' respective obligations hereunder, including any of the foregoing which concern health, safety, fire, environmental protection, labor relations, mitigation monitoring February 11, 2020 5 City of Santa Ana - DRAFT 60B-126 plans, building codes, zoning, non-discrimination, and prevailing wages if applicable. All references herein to Applicable Law include subsequent amendments or modifications thereof, unless otherwise specifically limited in this Agreement. 1.8 Billings "Billings" means any and all statements of charges for services rendered in accordance with this Agreement, howsoever made, described or designated by City or Contractor, or made by others for City or Contractor, to Customers in the City. 1.9 Bin "Bin" means a metal Container with hinged lids and wheels with a capacity of less than ten (10) cubic yards. 1.10 Bin Service "Bin Service" means all Solid Waste Handling Services provided by Contractor by means of front -loaded collection Bins. 1.11 Bulky Items "Bulky Items" means Solid Waste that cannot and/or would not typically be accommodated within a Cart including specifically: furniture (including chairs, sofas, mattresses, and rugs); appliances (including refrigerators, ranges, washers, dryers, water heaters, dishwashers, plumbing, small household appliances and other similar items, commonly known as "white goods"); up to twenty (20), thirty (30) gallon bags of green waste (including wood waste, tree branches, scrap wood; electronic equipment (including stereos, televisions, computers and monitors, VCRs, microwaves and other similar items commonly known as "brown goods" and "e-waste");. Bulky Items do not include car bodies, tires, Construction and Demolition Debris or items requiring more than two Persons to remove. Other items not specifically included or excluded above will be Collected provided that they are not more than eight feet in length, four feet in width, or more than 150 pounds. In the event a question ever arises as to whether a specific item or category of items meets the definition of Bulky Items, City shall be responsible to determine whether said definition shall apply, which determination shall be final and binding on the Parties. February 11, 2020 O B6 A n City of Santa Ana - DRAFT 1.12 CalRecycle "CalRecycle" means the State of California s Department of Resources Recycling and Recovery, and, as this department was structured prior to January 1, 2010, the California Integrated Waste Management Board or CIWMB, as well as any successor agency to CalRecycle. 1.13 Cart "Cart" means a plastic Container with a hinged lid and wheels serviced by an automated or semi -automated truck with a capacity of no less than 30 and no greater than 101 gallons. 1.14 City "City" means City of Santa Ana, California, a municipal corporation, and all the territory lying within the municipal boundaries of City as presently existing or as such boundaries may be modified during the term of this Agreement. 1.15 Collect/Collection "Collect" or "Collection" means to take physical possession, transport, and remove Solid Waste within and from City. 1.16 Commercial "Commercial" refers to services performed at or for Commercial Premises. 1.17 Commercial Premises "Commercial Premises" means Premises upon which business activity is conducted, and any other premises not defined as Residential Premises per Section 1.53 of this Agreement, including but not limited to retail sales, services, wholesale operations, manufacturing and industrial operations, but excluding Residential Premises upon which business activities are conducted when such activities are permitted under applicable zoning regulations and are not the primary use of the property. Notwithstanding any provision to the contrary herein, in the Santa Ana Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which the following uses (as defined in the Santa Ana Municipal Code) are occurring shall be deemed to be February 11, 2020 7 City of Santa Ana - DRAFT 60B-128 Commercial Premises: Assisted Living Facilities, Convalescent Homes, Dormitories, Extended Stay Motels, Group Residential Facilities, Group Care Facilities, Hotels, and Motels. 1.18 Construction and Demolition Debris "Construction and Demolition Debris" or "C&D Material," means any combination of inert building materials and Solid Waste resulting from construction, remodeling, repair, cleanup, or demolition operations as defined in California Code of Regulations, Title 22 Section 66261.3 et seq. This term includes, but is not limited to, asphalt, concrete, Portland cement concrete, brick, lumber, gypsum wallboard, cardboard, and other associated packaging; roofing material, ceramic tile, carpeting, plastic pipe and steel. The material may be commingled with rock, soil, tree stumps; and other vegetative matter resulting from land clearing and landscaping for construction or land development projects. 1.19 Containers "Containers" means any and all types of Solid Waste receptacles, including Carts, Bins, and Roll -off Boxes. 1.20 Contractor "Contractor" means agents, companies and Subcontractors. 1.21 Contractor's Proposal and its officers, directors, employees, "Contractor's Proposal" means the proposal submitted by Contractor to City on , 2020 in response to a Request for Proposals dated 2020. Contractor's Proposal was selected by City based on its competitive advantages over other proposals received, and City specifically relied upon the representations and warranties set forth therein in entering into this Agreement. Contractor's Proposal is attached as Exhibit 1 and incorporated into this Agreement by reference, and Contractor represents and warrants that all representations set forth in such proposal are true and correct. February 11, 2020 8 City of Santa Ana - DRAFT 60B-129 1.22 Contractor Compensation "Contractor Compensation" means the revenue received by the Contractor from Billings, excluding City fees as defined in Section 3 of this Agreement, in return for providing services in accordance with this Agreement and any amendments to this Agreement. 1.23 CPI "CPI" means the Consumer Price Index ("CPP'), All Urban Consumers Less Food and Energy - US City Average (CUUROOOOSAOLIE). 1.24 Customer "Customer" means the Person having the care and control of any Premises in the City receiving Solid Waste Handling Service from the Contractor pursuant to the terms of this Agreement. 1.25 Disposal "Disposal" means the ultimate disposition of Solid Waste Collected by Contractor at a landfill or otherwise in full regulatory compliance. 1.26 Disposal Site(s) "Disposal Site(s)" means the Solid Waste handling Facility or Facilities utilized for the ultimate Disposal of Solid Waste Collected by Contractor. 1.27 DiverVDiversion "Divert" or "Diversion" means to Divert from Disposal facilities or Transformation facilities (including incineration, pyrolysis, distillation, gasification or biological conversion) through source reduction, Recycling and composting, as provided in Section 41780 of California Public Resources Code as such act may be hereafter amended or superseded provided that Divert or Diversion shall include delivery to Transformation facilities if the overall Diversion achieved by the City is at a level where delivery to such facilities shall be considered Diversion pursuant to the Act. February 11, 2020 9 City of Santa Ana - DRAFT 60B-130 1.28 Electronic Waste or E-Waste "Electronic Waste" or "E-Waste' means electronic equipment and includes, but is not limited to, stereos, televisions, computers and computer monitors, VCRs, cellular phones, fax machines, household copiers, computer printers, other electronic items with electric plugs that are banned from landfilling, and other similar items commonly known as "brown goods." 1.29 Environmental Law "Environmental Law" means any federal and state statute, county, local and City ordinance, rule, regulation, order, consent decree, judgment or common-law doctrine, and provisions and conditions or permits, licenses and other operating authorizations relating to (i) pollution or protection of the environment, including natural resources, (ii) exposure of Persons, including employees, to Hazardous Materials or other products, raw materials, chemicals or other substances, (iii) protection of the public health or welfare from the effects of by-products, wastes, emissions, discharges or releases of chemical substances from industrial or Commercial activities, or (iv) regulation of the manufacture, use or introduction into commerce of chemical substances, including, without limitation, their manufacture, formulation, labeling, distribution, transportation, handling, storage and Disposal. 1.30 Executive Director "Executive Director" means the Executive Director of Public Works of the City of Santa Ana, or his or her designate. 1.31 Facility "Facility" means any plant or site, owned or leased and maintained, operated or used by Contractor for purposes of performing under this Agreement. 1.32 Food Waste "Food Waste" means all kitchen and table food scraps, animal or vegetable waste that is generated during or results from the storage, preparation, cooking or handling of food stuffs; discarded compostable paper that is contaminated with Food Waste; fruit waste, grain waste, dairy waste, meat, and fish waste, which has been Source Separated from other Solid Waste. Food Waste is a subset of Organic Materials and excludes Hazardous February 11, 2020 10 City of Santa Ana - DRAFT 60B-131 Waste. 1.33 Franchise "Franchise" means the special right granted by City to operate a public utility for Solid Waste services within the City. 1.34 Franchise Fee "Franchise Fee" means the fee paid by Contractor to City for the right to hold the Franchise for Solid Waste services granted by this Agreement. 1.35 Gross Receipts "Gross Receipts" means and includes all revenues actually received by Contractor arising from, or attributable to, the services provided by Contractor to its Customers in the City pursuant to this Agreement, without deducting Disposal charges or any other cost of doing business. Gross Receipts does not include any revenue received by Contractor from the sales of Recyclable Materials. 1.36 Hazardous Material "Hazardous Material" is defined to include any hazardous or toxic substance, material or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government. The term "Hazardous Material' includes, without limitation, any material or substance which is: (i) petroleum or oil or gas or any direct or derivate product or byproduct thereof; (ii) defined as a "hazardous waste," "extremely hazardous waste" or "restricted hazardous waste" under Sections 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); (iii) defined as a "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter -Presley -Tanner Hazardous Substance Account Act); (iv) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Sections 25501(j) and (k) and 25501.1 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (v) 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); (vi) "used oil' as defined under Section 25250.1 of the California Health February 11, 2020 11 City of Santa Ana - DRAFT 60B-132 1.37 1.35 1.39 and Safety Code; (vii) asbestos; (viii) listed under Chapter 11 of Division 4.5 of Title 22 of the California Code of Regulations, or defined as hazardous or extremely hazardous pursuant to Chapter 10 of Division 4.5 of Title 22 of the California Code of Regulations; (ix) defined as waste or a hazardous substance pursuant to the Porter -Cologne Act, Section 13050 of the California Water Code; (x) designated as a "toxic pollutant' pursuant to the Federal Water Pollution Control Act, 33 U.S.C. Section 1317; (xi) defined as " hazardous waste' pursuant to the Federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C. § 6903); (xii) defined as a "hazardous substance" pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 6901); (xiii) defined as "Hazardous Material' pursuant to the Hazardous Materials Transportation Act 29 U.S.C. Section 5101, et seq.: or (xiv) defined as such or regulated by any "Superfund" or "Superlieri' law, or any other federal, state or local law, statute, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning Hazardous Materials and/or oil wells and/or underground storage tanks and/or pipelines, as now, or at any time hereafter, in effect; (xv) defined as "medical waste' or "biohazardous waste" under applicable Federal or State law, excluding Sharps as defined in Section 1.56. Household Hazardous Waste ("HHW") "Household Hazardous Waste" or "HHW" means material used in residences that may threaten human health or the environment when improperly discarded and usually has one or more of the following characteristics; flammable, toxic, corrosive, and/or reactive. Materials Recovery Facility ("MRF") "Materials Recovery Facility" means a permitted Solid Waste Facility where Solid Wastes or Recyclable Materials are sorted or separated for the purposes of Recycling, processing or composting. Mixed Waste Processing "Mixed Waste Processing" means the separation and sorting of recyclables and other recoverable materials from Refuse at a MRF where commingled loads of Solid Waste are processed. February 11, 2020 12 City of Santa Ana - DRAFT 60B-133 1.40 Multi -Family Premises "Multi -Family Premises" means any Residential Premises three (3) or more dwelling units (not including hotels or motels), irrespective of whether residence therein is transient, temporary or permanent. Multi -Family Premises generally receive Solid Waste Handling service through the use of shared Bins, but may use Carts with approval of the Executive Director. 1.41 Orange County Disposal System "Orange County Disposal System' means any landfill owned or operated by the County of Orange, currently including landfills known as Olinda Alpha, Frank R. Bowerman, and Prima Deschecha. 1.42 Organic Materials "Organic Materials" means Food Waste, Yard Waste, and other organic material as defined by CalRecycle, collectively or individually. 1.43 Organic Materials Processing Facility "Organic Materials Processing Facility" means a permitted Facility where Organic Material is sorted, mulched, or separated for the purposes of Recycling, reuse or composting. 1.44 Owner "Owner" means the Person holding the legal title to the real property constituting the Premises to which Solid Waste Collection service is to be provided under this Agreement or the Person holding legal title to the Disposal Site. 1.45 Person "Person" means any individual, firm, association, organization, partnership, corporation, business trust, joint venture, the United States, the State of California, the County of Orange, towns, cities, and special purpose districts. February 11, 2020 13 City of Santa Ana - DRAFT 60B-134 1.46 Premises "Premises" means any land, or building in City where Solid Waste is generated or accumulated. 1.47 Rate Year "Rate Year" means the period July 1 to June 30, for each year during the Term of this Agreement. 1.48 Recycling "Recycling" means Collecting, sorting, cleansing, treating, Processing and reconstituting Recyclable Materials for the purpose of reuse or resale. 1.49 Recyclable Materials "Recyclable Materials" means Solid Waste that is Source Separated, or recovered through Mixed Waste Processing, has some potential economic value, and is set aside, handled, packaged, or offered for Collection in a manner different from Refuse in order to allow it to be processed for Recycling. 1.50 Refuse "Refuse" means Solid Waste or debris, except sewage, Construction and Demolition Debris, Recyclable Materials, and/or Organic Materials placed in source -separated Containers for Collection. 1.51 Residential 'Residential' refers to services performed at and for Residential Premises, which include both single-family and Multi -Family Premises. 1.52 Residential Curbside Service Unit "Residential Curbside Service Unit" means each single family residence and duplex unit which receives curbside Collection services using a Cart provided by Contractor. This shall include any Multifamily Premises which does not require Bin Service as determined by the Executive Director of Public Works. Residential Curbside Service Units do not include Commercial Cart service. February 11, 2020 14 City of Santa Ana - DRAFT 60B-135 1.53 Residential Premises "Residential Premises" means Premises upon which dwelling units exist, including, without limitation, single family and multi -family dwellings, apartments, boarding or rooming houses, condominiums, mobile homes, efficiency apartments, and second units. Notwithstanding any provision to the contrary herein, in the Santa Ana Municipal Code, or otherwise, for purposes of this Agreement, Premises upon which the following uses are occurring shall not be deemed to be Residential Premises, and rather shall be deemed to be Commercial Premises: assisted living facilities, convalescent homes, dormitories, extended stay motels, group residential facilities, group care facilities, hotels, motels, and any other businesses not specifically listed at which residency is transient in nature and hence should be classified as Commercial Premises as determined by City on a case by case bases. 1.54 Roll -off Box "Roll -off Box" means Solid Waste Collection Containers of 10-yards or larger. 1.55 SB 1383 "SB 1383" means the Short -Lived Climate Pollutants Act of 2016 (Chapter 395, Statutes of 2016), as it may be amended, supplemented, superseded, or replaced from time to time. 1.56 Sharps "Sharps" means hypodermic needles, pen needles, intravenous needles, lancets, and other devices that are used to penetrate the skin for the delivery of medications. 1.57 Solid Waste "Solid Waste" means all Solid Wastes generated by Residential, Commercial, and industrial sources, including Refuse, Recyclable Materials and Organic Materials, and all Solid Waste generated at construction and demolition sites, and at treatment works for water and waste water, which are Collected and transported under the authorization of the City or are self -hauled by residents or contractors. Municipal Solid Waste does not include agricultural crop residues, mining waste and fuel extraction waste, forestry wastes, ash from industrial boilers, furnaces and incinerators or Hazardous Material, any waste which is not permitted to be disposed of at a Class III February 11, 2020 15 City of Santa Ana - DRAFT 60B-136 landfill and which fall within the definition of "Nonhazardous Solid Waste' set forth in Title 23, Chapter 15, Section 2523(a) of the California Code of Regulations as amended or designated Class II wastes. Materials shall be deemed "Solid Waste" consistent with the meaning of California Public Resources Code Section 40191, and for purposes of this Agreement shall be regulated as such, whether or not they may be potentially Recyclables, in either of the following instances: (a) the material is mixed or commingled with other types of Solid Waste such that more than 65% of the material consists of Solid Waste rather than Recyclables, or (b) the payment of a fee, charge, or other consideration, in any form or amount, is directly or indirectly solicited or received from the generator by any Person or combination of Persons in exchange for Collection, removal, transportation, storage, processing, handling, consulting, Container rental or Disposal services ("fee for service" Recycling), whether or not arranged by or through a subcontractor, broker, agent, consultant, or affiliate of the provider of such service. 1.58 Solid Waste Handling Services "Solid Waste Handling Services" means the Collection, transfer, transport, Recycling, processing, and Disposal of Solid Waste. 1.59 Source Separation/Source-Separated "Source Separation" or "Source -Separated" means the segregation into separate Containers by the Waste Generator of individual components of material which otherwise would become Refuse (such as glass bottles, metal cans, newspapers, plastic containers, etc.) into separate Container(s) for the sole purpose of Recycling of such materials. Source separation includes the segregation of recyclable materials for single stream recyclables Collection. 1.60 State "State" means the State of California. 1.61 Transformation "Transformation" means incineration, pyrolysis, distillation, gasification, or biological conversion other than composting. "Transformation" does not include composting. February 11, 2020 16 City of Santa Ana - DRAFT 60B-137 1.62 Transfer Station "Transfer Station" means a Facility that receives Solid Waste from Collection vehicles and transfers the material to larger vehicles for transport to landfills and other destinations. Transfer Stations may or may not also include MRFs transferring residual Refuse (Refuse left after the sorting of Recyclable Materials) to landfills and Recyclable Materials, including Organic Materials and/or Construction and Demolition debris, to processors, brokers or end -users. 1.63 Universal Waste "Universal Waste" or "u-waste" means any of the following waste that are conditionally exempt from classification as hazardous wastes pursuant to Title 22 of the California Code of Regulations (22 CCR), § 66261.9: (i) batteries as described in 22 CCR § 66273.2; (ii) thermostats as described in 22 CCR § 66273.4; (iii) lamps as described in 22 CCR § 66273.5; and (iv) cathode tube materials as described in 22 CCR § 66273.6; (v) Electronic Waste or e-waste as defined in Section 1.28. 1.64 Waste Generator "Waste Generator" means any Person as defined by the Public Resources Code, whose act or process produced Solid Waste as defined in the Public Resources Code, or whose act first causes Solid Waste to become subject to regulation. 1.65 Yard Waste "Yard Waste" means leaves, grass clippings, brush, branches, and other forms of Organic Materials generated from landscapes or gardens, which have been Source Separated from other Solid Waste. Yard Waste is a subset of Organic Materials and excludes Hazardous Materials." February 11, 2020 17 City of Santa Ana - DRAFT 60B-138 ARTICLE 2 GRANT AND ACCEPTANCE OF FRANCHISE 2.1 Grant and Acceptance of Franchise, Indemnity of Award Subject to the terms and conditions of this Agreement (including but not limited to the exclusions set forth in Section 2.9 hereof) and applicable State laws, and to the rights of State, county and school district facilities to use a Solid Waste enterprise other than Contractor, City hereby grants to Contractor and Contractor hereby accepts from City, for the Term hereof, the exclusive Franchise, right and privilege to provide Solid Waste Handling Services as defined in this Agreement within the boundaries of the City (the "Franchise"). Contractor agrees to and shall timely take all actions that are reasonably necessary to defend the validity and enforceability of this Agreement and shall pay all costs related to such defense. To the maximum extent permitted by law, Contractor shall defend, indemnify, protect and hold harmless, the City, its officers, agents and employees from any and all claims, actions or proceedings to attack, set aside, void, annul or seek monetary damages resulting from an approval by the City of this Agreement, including but not limited to any action brought by referendum or under Proposition 218 (Calif. Const. Art. XIIID) to challenge the City's entry into this Agreement or the setting of Solid Waste rates as set forth in this Agreement. The City shall promptly notify Contractor of any such claim, action, or proceeding. The City and Contractor shall meet in good faith in an effort to come to a mutual agreement for a joint defense; provided that the City shall be entitled to select legal counsel of its choice to conduct the defense if an agreement cannot be reached. Contractor's obligations to pay all costs, defend, indemnify, protect and hold harmless under this section shall not be altered in the event City retains separate counsel. Contractor hereby accepts the Franchise on the terms and conditions set forth in this Agreement. 2.2 Exclusive Nature of Franchise During the term of this Agreement, except as otherwise provided in Section 2.9 below, or as may otherwise be provided by federal or state law, the rights granted to the February 11, 2020 18 City of Santa Ana - DRAFT 60B-139 2.3 2.4 2.5 Contractor under this Agreement shall be exclusive to the Contractor. The City will not let any contract to, or enter into any agreement with, any other Person for the performance of the services herein required to be performed by the Contractor. To the extent permitted under state or federal law, the City shall protect the Contractor's exclusive rights by proper ordinances, and may take action to enforce those ordinances upon request and at the City's sole and absolute discretion. Should the City take administrative, law enforcement, or other legal action against any Person that infringes on the Contractor's exclusive rights, the Contractor shall reimburse the City for its reasonable administrative, law enforcement, or other legal costs related to any such action. To the extent permitted under state or federal law, nothing herein shall preclude Contractor from taking such legal action against third parties as it deems appropriate to protect the exclusive nature of its Franchise. Effective Date The effective date of this Agreement shall be thirty (30) days after the date which the City Council approves this Agreement. Term of Agreement The term of this Agreement shall be ten (10) years, commencing at midnight July 1, 2022, and expiring at midnight June 30, 2032, subject to extension as provided herein. Notwithstanding the foregoing, the unexcused failure or refusal of Contractor to perform any material term, covenant, obligation or condition contained in this Agreement shall give rise to the right, in favor of City, for earlier termination of this Agreement for cause in accordance with the procedures elsewhere contained herein. Extension Period 2.5.1 Mutual Option to Extend City and Contractor may, by mutual agreement, extend the term of the Agreement for an additional five (5) years at the end of the initial ten (10) year term defined in Section 2.4. The mutual option to extend may be exercised by written amendment to this Agreement no sooner than five (5) years prior to the expiration of the initial term described in Section 2.4 and no later than two (2) years prior to the expiration of the initial term defined in Section 2.4. February 11, 2020 19 City of Santa Ana - DRAFT 60B-140 2.5.2 City Option to Extend City, in its sole discretion, may authorize an extension ("Extension Period") of up to thirty-six (36) months. The Extension Period shall be on a month -to -month basis. During the Extension Period, and in addition to rights of termination set forth elsewhere in this Agreement, this Agreement may be terminated by City at any time, without cause, if City gives Contractor a 90-day written notice of termination. City may, upon 90-days' advance written notice to Contractor prior to expiration of the Term of Agreement as defined in Section 2.4, or prior to the expiration of an extended term by mutual agreement under Section 2.5.1, exercise the twenty-four (24) month extension option. If City provides this extension notice, then the Agreement Term will automatically renew on a month -to -month basis, up to a total of twenty-four (24) months, unless earlier terminated pursuant to this Agreement. 2.6 Representations and Warranties of Contractor Contractor hereby covenants, represents, and warrants the following to City for the purpose of inducing City to enter into this Agreement and to consummate the transaction contemplated hereby, all of which shall be true as of the date of this Agreement and as of the Effective Date: a) Contractor is wholly owned by , a corporation duly organized and validly existing as a corporation under the laws of the State of b) Neither the execution of this Agreement nor the delivery by Contractor of services nor the performance by Contractor of its obligations hereunder: (1) conflicts with, violates or results in a breach of any Applicable Law; (2) conflicts with, violates or results in a breach of any term or condition of any judgment, decree, agreement (including, without limitation, the certificate of incorporation of Contractor) or instrument to which Contractor is a party or by which Contractor or any of its properties or assets are bound, or constitutes a default under any such judgment, decree, agreement or instrument; or (3) will result in the creation or imposition of any encumbrance of any nature whatsoever upon any of the properties or assets of Contractor. c) There is no action, suit or other proceeding as of the date of this Agreement, at law or in equity, or to the best of Contractor's knowledge, any investigation, February 11, 2020 60 Ef°141 City of Santa Ana - DRAFT d) e) f) m before or by any court or governmental authority, pending or threatened against Contractor or [parent/guaranteeing company] which is likely to result in an unfavorable decision, ruling or finding which would materially and adversely affect the validity or enforceability of this Agreement or any such agreement or instrument entered into by Contractor or [parent/guaranteeing company] in connection with the transactions contemplated hereby, or which could materially and adversely affect the ability of Contractor to perform its obligations hereunder or which would have a material adverse effect on the financial condition of Contractor or [parent/guaranteeing company]. Contractor has no knowledge of any Applicable Law in effect as of the date of this Agreement that would prohibit the performance by Contractor of this Agreement and the transactions contemplated hereby. Contractor has made an independent investigation, satisfactory to it, of the conditions and circumstances surrounding this Agreement and the work to be performed by it, and is satisfied that those conditions and circumstances will not impair its ability to perform the work and provide the Collection services required by this Agreement. The information supplied by Contractor in all submittals made in connection with negotiation and execution of this Agreement, including all materials in Exhibits of this Agreement, and all representations and warranties made by Contractor throughout this Agreement are true, accurate, correct and complete in all material respects on and as of the Effective Date of this Agreement. Note that inaccuracies in Contractor's Proposal, such as material omissions of past and pending litigation as requested under the Request for Proposals through which this Agreement was procured, is grounds for termination of this Agreement. Contractor's representative, designated in Section 5.2.4, shall have authority in all daily operational matters related to this Agreement. City may rely upon action taken by such designated representative as action of Contractor unless the actions taken are not within the scope of this Agreement. February 11, 2020 60 61142 City of Santa Ana - DRAFT 2.7 Conditions to Effectiveness of Agreement The obligation of City to permit this Agreement to become effective and to perform its undertakings provided for in this Agreement is subject to the satisfaction of each and all of the conditions set out below, each of which may be waived in whole or in part by City. a) Accuracy of Representations. Representations and warranties made by Contractor throughout this Agreement are accurate, true and correct on and as of the effective date of this Agreement. b) Absence of Litigation. There is no litigation pending in any court challenging the award of this Franchise to Contractor or the execution of this Agreement or seeking to restrain or enjoin its performance. c) Furnishing of Insurance and Bonds. Contractor has furnished evidence of the insurance and bonds required by Article 9. d) Effectiveness of City Council Action. City's Resolution approving this Agreement shall have become effective pursuant to California law. 2.8 Delegation of Authority The administration of this Agreement by the City shall be under the supervision and direction of the Executive Director's office and the actions specified in this Agreement, unless otherwise stated, shall be taken by the Executive Director, or his or her designee. 2.9 Limitations to Scope Notwithstanding any provision to the contrary contained herein, the exclusive Franchise, right and privilege to provide Solid Waste Handling Services at Premises within City granted to Contractor by this Agreement specifically excludes the following services, which services may be provided by Persons other than Contractor and which may be the subject of other permits, licenses, franchises or agreements issued or entered by City: a) The sale or donation of source -separated Recyclable Material and/or Organic Material by the Waste Generator to any Person or entity other than Contractor; provided, however, to the extent permitted by law, if the Generator is required to February 11, 2020 60 62143 City of Santa Ana - DRAFT pay monetary or non -monetary consideration for the Collection, transportation, transfer, or processing of Recyclable Material and/or Organic Material, the fact that the Generator receives a reduction or discount in price (or in other terms of the consideration the Generator is required to pay) shall not be considered a sale or donation as described in Section 16-30(c) of the City of Santa Ands Municipal Code; b) Solid Waste which is removed from any Premises by the Waste Generator, and which is transported personally by such Generator (or by his or her full-time employees, but not a subcontractor) to a processing or Disposal Facility in a manner consistent with all Applicable Laws and regulations; c) Yard Waste removed from a Premises by a gardening, landscaping, or tree trimming company, utilizing its own equipment, as an incidental part of a total service offered by that company rather than as a hauling service; d) The Collection, transfer, transport, Recycling, processing, and Disposal of animal remains from slaughterhouse or butcher shops for use as tallow; e) The Collection, transfer, transport, Recycling, processing, and Disposal of by- products of sewage treatment, including sludge, sludge ash, grit and screenings; f) The Collection, transfer, transport, Recycling, processing, and Disposal of Hazardous Material, Household Hazardous Waste and radioactive waste regardless of its source; g) Construction and Demolition Debris which has accumulated and/or been generated at a temporary construction site and which is removed using a Roll -off Box or Bin, except Construction and Demolition Debris which is generated from City Government Operations which is exclusive to this Agreement; [NOTE: IF COUNCIL ADDS C&D TO AGREEMENT THIS SECTION TO BE REVISED] h) The Collection, transfer, transport, Recycling, processing and Disposal of automobiles and automobile parts by vehicle dismantlers or owners of vehicle salvage yards; i) The Collection, transfer and transport of clean dirt, excepting that which is Collected from City Operations as described in Sections 4.4.1 and 4.4.2; February 11, 2020 60 -3 144 City of Santa Ana - DRAFT j) Containers delivered for Recycling under the California Beverage Container Recycling Litter Reduction Act, Section 14500, et. seq. California Public Resources Code; k) The Collection, transfer, transport, Recycling, processing, and Disposal of Solid Waste by City through City officers or employees in the normal course of their City employment; 1) Solid Waste Handling Services for governmental agencies other than City, which may have facilities in City, but over which City has no jurisdiction in connection with the regulation of Solid Waste; and, m) Solid Waste Handling Services for Solid Waste originating outside the City from hauling such Solid Waste over City streets, provided such collectors comply with any governing laws and/or ordinances; and, n) Contractor's right to Collect and/or Dispose of Solid Waste shall not be exclusive in the event of failure to Collect under Article 10 of this Agreement during which Contractor fails to maintain substantially complete regular Collection services pursuant to this Agreement and the Collection schedules then in effect, for any reason, including a strike by Contractor's employees or similar labor dispute. The City may provide for Collection and/or Disposal services from persons other than Contractor during such periods, including Contractor's Bin and/or Roll -off Service Customers. o) Food Waste or other Organic Materials diverted from Disposal by delivery to hog farms or otherwise used as animal feed; p) Edible food recovered for human consumption; and q) Collection services already lawfully provided by another contractor in any territory that has been annexed to the City during the term of this Agreement, as more specifically described in Section 2.14. r) Used motor oil and used motor oil filter Collection services provided under Section 4.2.12. Contractor acknowledges and agrees that City may permit other Persons besides Contractor to Collect any or all types of the Solid Waste listed in this Section 2.9 as February 11, 2020 60 6-1145 City of Santa Ana - DRAFT exempt from Contractor's Franchise, including Recyclable Materials, without seeking or obtaining approval of Contractor under this Agreement. This grant to Contractor of an exclusive Franchise, right and privilege to Collect, transport, or process and Dispose of Solid Waste shall be interpreted to be consistent with all Applicable Laws, now and during the term of the Franchise, and the scope of this exclusive Franchise shall be limited by current and developing Applicable Laws with regard to Solid Waste handling, exclusive Franchise, control of Recyclable Materials, Solid Waste flow control, and related doctrines. In the event that future interpretations of current law, enactment or developing legal trends limit the ability of City to lawfully provide for the scope of Franchise services as specifically set forth herein, Contractor agrees that the scope of the Franchise will be limited to those services and materials which may be lawfully provided for under this Agreement, and that City shall not be responsible for any lost profits claimed by Contractor to arise out of further limitations of the scope of the Agreement set forth herein. In such an event, it shall be the responsibility of Contractor to minimize the financial impact to other services being provided as much as possible. 2.10 City's Right to Direct Changes 2.10.1 General City may direct Contractor to perform additional services (including new Diversion programs, etc.) or modify the manner in which it performs existing services or bills for services. Pilot programs and innovative services which may entail new Collection methods, and different kinds of services and/ or new requirements for Waste Generators are included among the kinds of changes which City may direct. Contractor acknowledges that State law may increase the Diversion requirement during the term of this Agreement and Contractor agrees to propose services to meet such Diversion requirements. Contractor shall be entitled to an adjustment in its Contractor Compensation for providing such additional or modified services, if Contractor demonstrates that its cost of service would increase, as set forth in Sections 2.10.2 and 2.10.3. City may utilize cost components included in the Contractor's Proposal in calculating equitable rate adjustments. If City and Contractor cannot agree on compensation for new or additional services, then City may contract with other parties for such services, which shall be considered exempt from the exclusivity provisions of Section 2.2. February 11, 2020 60 6-2146 City of Santa Ana - DRAFT 2.10.2 New Diversion Programs Contractor shall present, within sixty (60) days of a request to do so by City, a proposal to provide additional or expanded Diversion services. The proposal shall contain a complete description of the following: • Collection methodology to be employed (equipment, manpower, etc.). • Equipment to be utilized (vehicle number, types, capacity, age, etc.). • Labor requirements (number of employees by classification). • Type(s) of Containers to be utilized. • Type(s) of material to be Collected. • Provision for program publicity/education/marketing. • Projection of the annual financial results of the program's operations in an operating statement format including documentation of the key assumptions underlying the projections and the support for those assumptions. • Any other information reasonably requested by the Executive Director. 2.10.3 City's Right to Acquire Services Contractor acknowledges and agrees that City may permit other Persons besides Contractor to provide additional Solid Waste services not otherwise contemplated under this Agreement. If pursuant to Sections 2.10.1 and 2.10.2, Contractor and City cannot agree on terms and conditions of such services within ninety (90) days from the date when City first requests a proposal from Contractor to perform such services, Contractor acknowledges and agrees that City may permit Persons other than Contractor to provide such services. 2.11 Ownership of Solid Waste and City's Right to Direct Solid Waste Once Solid Waste is placed in Containers and properly placed at the designated Collection location, ownership and the right to possession shall transfer directly from the Waste Generator to Contractor by operation of this Agreement and City ordinance. Subject to Contractor's objective to meet the Source Reduction and Recycling goals February 11, 2020 60-6147 City of Santa Ana - DRAFT which apply to City and City's right to direct Contractor to process and dispose of Solid Waste at a particular licensed Solid Waste Facility or to dispose of Solid Waste at a particular licensed Disposal Site, if and only if City exercises such right by providing specific written direction to Contractor, Contractor is hereby granted the right to retain, Recycle, process, Dispose of, and otherwise use such Solid Waste, or any part thereof, in any lawful fashion or for any lawful purpose desired by Contractor; this does not impact Contractor's right to retain Recyclable Materials revenue under Section 4.6.7. Subject to the provisions of this Agreement, Contractor shall have the right to retain any benefit resulting from its right to retain, Recycle, process, Dispose of, or reuse the Solid Waste which it Collects. Solid Waste which is delivered to a Disposal Site or sites (whether landfill, Transformation Facility, Transfer Station, Organic Materials Processing Facility or Material Recovery Facility) shall become the property of the Owner or operator of the Disposal Site(s) once deposited there by Contractor. City may obtain ownership or possession of Solid Waste placed for Collection upon written notice of its intent to do so, however, nothing in this Agreement shall be construed as giving rise to any inference that City has such ownership or possession unless such written notice has been given to Contractor. City has the option to provide written direction to the Contractor specifying a Facility for handling, processing, and Disposal of Solid Waste. If City directs Contractor to a Facility other than a Facility listed in this Agreement, or otherwise requested by Contractor, and in doing so it adversely affects the ability of the Contractor to meet either or both of the requirements of Section 9.3 and Section 4.6.1, then in this event the City and Contractor shall meet and confer and mutually agree on revised obligations for Sections 9.3 and 4.6.1. The foregoing notwithstanding, in the event City directs Contractor to a Facility other than a Facility listed in this Agreement or otherwise requested by Contractor, then Contractor shall be entitled to a rate adjustment based upon any increase or decrease in costs associated with handling, processing, Disposal and transportation. 2.12 Contractor Status Contractor represents and warrants that it is duly organized, validly existing and in good standing under Applicable Laws. It is qualified to transact business in the State of California and has the power to own its properties and to carry on its business as now owned and operated and as required by this Agreement. February 11, 2020 60 6' 148 City of Santa Ana - DRAFT 2.13 Contractor Authorization Contractor represents and warrants that it has the authority to enter into and perform its obligations under this Agreement. The Board of Directors or partners of Contractor (or the shareholders, if necessary) have taken all actions required by Applicable Law, its articles of incorporation, and its bylaws or otherwise to authorize the execution of this Agreement. The Persons signing this Agreement on behalf of Contractor have authority to do so. Contractor shall authorize one employee for the City as a single point of contact for issues arising under this Agreement. City may accept that this employee's actions are taken on behalf of and with the full approval of the Contractor. 2.14 Annexations This Agreement extends to any territory annexed to the City during the term of this Agreement except to the extent that Collection by Contractor within that annexed territory would violate the provisions of Public Resources Code Section 49520. In such event, this Agreement shall become effective as to such area at the earliest possible date permitted by law, and City agrees that it shall cooperate with Contractor to fulfill any requirement necessary for Contractor to serve the annexed area consistent with this paragraph. 2.15 Permits and Licenses Contractor shall acquire and maintain all necessary permits and licenses for the Collecting, transporting, Recycling, processing, disposing, and storing of Solid Waste as required under this Agreement. Failure to maintain all required permits shall be deemed a material breach of contract for which City may terminate this Agreement as provided in Section 11.3. Contractor must follow requirements of the Santa Ana Municipal Code, including, but not limited to, obtaining a City of Santa Ana business license. February 11, 2020 60 6-2149 City of Santa Ana - DRAFT ARTICLE 3 FRANCHISE FEE, NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM FEE, VEHICLE IMPACT FEE, & ADMINISTRATIVE FEE In addition to any other consideration set forth herein, as part of its consideration for entering into this Agreement, and for the exclusive Franchise, right and privilege to provide Solid Waste Handling Services as specified herein, Contractor shall provide the following: 3.1 Franchise Fee Contractor shall pay to the City a Franchise Fee based on the Gross Receipts received by Contractor from Customers direct -billed by Contractor. The Franchise Fee is now set at an amount equal to percent [amount to be based on proposal Exhibit 4-El of said Gross Receipts for Customers direct -billed by Contractor. This amount may be increased by resolution of the City Council and, whenever said Franchise Fee is increased by resolution of the City Council, Contractor shall be permitted to pass through to Customers direct -billed by Contractor one hundred percent (100%) of the amount of such increase. Invoices submitted to Customers by Contractor shall not reference the aforementioned Franchise Fee. The Parties acknowledge that this Franchise Fee reflects the reasonable value of the public right-of-way franchise rights granted to Contractor pursuant to this Agreement, as determined through good -faith negotiation of this Agreement. Concurrent with each Franchise Fee payment, Contractor shall provide an accounting worksheet showing the breakout of receipts by line of service and calculation of the Franchise Fee in a format approved by the City. 3.2 National Pollutant Discharge Elimination System (NPDES) Fee The City has an established National Pollutant Discharge Elimination System (NPDES) program that is designed to minimize any pollutants discharged into the City's storm drain system. The City conducted a study and found a nexus between the NPDES program and its storm drain infrastructure maintenance and cleaning to Solid Waste Collection. Refuse and debris that is generated on residential and non-residential parcels and not placed in appropriate containers for pick-up, is carried through the City's curb and gutter system to catch basins where it is captured by trash screen devices or ends up in the storm drain infrastructure, where it is extracted and disposed of. The City bears significant annual costs for these activities due to Solid Waste February 11, 2020 60 6-2150 City of Santa Ana - DRAFT impacts. The study identified the figure below as the City's cost of the NPDES program that may be reasonably apportioned to the cost of providing Solid Waste services. To reimburse the City for storm drain infrastructure maintenance and cleaning of Solid Waste, Contractor shall pay to the City an NPDES Fee in the amount of one million, ten thousand dollars ($1,010,000) annually as adjusted herein. The NPDES Fee shall be paid in twelve monthly installments over the course of each Rate Year, beginning with the Rate Year starting July 1, 2022. The July 1, 2022 Rate Year monthly payments will be eighty-four thousand, one hundred sixty-six dollars and sixty-seven cents ($84,166.67) due under the terms of Section 3.5. The foregoing notwithstanding, beginning with Rate Year 2 (July 1, 2023) and for all subsequent Rate Years, the amount of the NPDES Fee shall be adjusted annually to reflect the change in the average annual CPI for the twelve (12) month period ending December. If there is no increase in the CPI or if the CPI decreases, the NPDES Fee shall remain unchanged from the previous Rate Year. 3.3 Vehicle Impact Fee The City is adopting a vehicle impact fee program. The primary purpose of the vehicle impact fee program is to provide funding for necessary improvements to the City's streets to offset the "wear and tear" impact of heavy vehicle travel thereon. The City commissioned a study to assess the impact heavy vehicles travelling within the City have on City streets. The study concluded that approximately 38.1% of the "wear and tear" impact is due to refuse trucks and related heavy vehicles travelling on City streets, equivalent to $7,652,310 of impact annually. As such, the study concluded that the costs of maintaining City streets to offset these impacts may be fairly apportioned to the cost of providing Solid Waste services. The amount identified below reflects less than 30% of maximum costs the City could recover according to the study. To reimburse the City for the costs of road maintenance due to the use of Contractors Solid Waste Collection vehicles on City streets, Contractor shall pay two million, two hundred sixty-six thousand, six hundred and sixty-six dollars ($2,266,666) annually as adjusted herein. The Vehicle Impact Fee shall be paid in twelve monthly installments over the course of each Rate Year, beginning with the Rate Year starting July 1, 2022. The July 1, 2022 Rate Year monthly payments will be one hundred eighty-eight thousand, eight hundred, eighty-eight dollars and eighty-three cents ($188,888.83) due under the terms of Section 3.5. The foregoing notwithstanding, beginning the Rate Year 2 (July 2, 2023) and for all subsequent Rate Years, the amount of the Vehicle Impact Fee February 11, 2020 60830151 City of Santa Ana - DRAFT shall be adjusted annually to reflect the change in the average annual CPI for the twelve (12) month period ending December. If there is no increase in the CPI or if the CPI decreases, the Vehicle Impact Fee shall remain unchanged from the previous Rate Year. 3.4 Administrative Fee The City has analyzed its annual budgeted costs to bill residential accounts and for general administration of this Agreement. These costs are typically paid from the City's General Fund even though these services benefit the Solid Waste franchise, and therefore the costs may be reasonably allocated to and recovered from the Solid Waste franchise. In order to offset a portion of the City's costs to perform residential customer billing and administer this Agreement, Contractor shall pay to the City an Administrative Fee in the amount of two million, three hundred twenty-six thousand, and eight hundred dollars ($2,326,800) annually as adjusted herein. The Administrative Fee shall be paid in twelve monthly installments over the course of each Rate Year, beginning with the Rate Year starting July 1, 2022. The July 1, 2022 Rate Year monthly payments will be one hundred ninety-three thousand, and nine hundred dollars ($193,900) due under the terms of Section 3.5. The foregoing notwithstanding, beginning with Rate Year 2 (July 1, 2023) and for all subsequent Rate Years, the amount of the Administrative Fee shall be adjusted annually to reflect the change in the average annual CPI for the twelve (12) month period ending December. If there is no increase in the CPI or if the CPI decreases, the Administrative Fee shall remain unchanged from the previous Rate Year. 3.5 Time and Method of Fee Payments to City On or before the thirtieth (30th) day following the end of each calendar month, during the Term of this Agreement, Contractor shall remit to City the Franchise Fee, NPDES Fee, Vehicle Impact Fee, and Administrative Fee as described in Sections 3.1 through 3.4. The fee payments shall be submitted with an itemized statement identifying the amount of each fee. If the fees are not paid to the City on or before the thirtieth (30th) day following the end of the calendar month, Contractor shall pay to City a penalty in an amount equal to ten percent (10%) of the amount of each delinquent fee, or portion thereof, owing for that month. Contractor shall pay an additional ten percent (10%), on any unpaid balance for each following thirty (30) day period the fees remain unpaid. Late payment penalties shall not be included in any revenue requirement. February 11, 2020 60B31 52 City of Santa Ana - DRAFT Each monthly Franchise Fee remittance to City shall be accompanied by a statement detailing Gross Receipts from Customers direct -billed by Contractor for the period covered from all operations conducted or permitted, pursuant to this Agreement. In addition, Contractor shall maintain copies of all Billing and Collection records for five (5) years, following the date of billing, for inspection and verification by City at any reasonable time upon request. February 11, 2020 32 City of Santa Ana - DRAFT 60B-153 ARTICLE 4 DIRECT SERVICES 4.1 Services to be Provided by Contractor - General The work to be done by Contractor pursuant to this Agreement shall include, but not be limited to, the furnishing of all labor, supervision, equipment, materials, supplies, and all other items necessary to perform the services required. The enumeration of, and specification of requirements for, particular items of labor or equipment shall not relieve Contractor of the duty to furnish all others, as may be required, whether enumerated elsewhere in the Agreement or not. The work to be done by Contractor pursuant to this Agreement shall be accomplished in a thorough and professional manner so that Customers within City are provided reliable, courteous and high -quality Solid Waste Handling Services at all times. The enumeration of, and specification of requirements for, particular aspects of service quality shall not relieve Contractor of the duty of accomplishing all other aspects in the manner provided in this section, whether such other aspects are enumerated elsewhere in the Agreement or not. 4.2 Residential Curbside Service Unit Services 4.2.1 Residential Curbside Service Unit Refuse Collection Contractor shall provide all Residential Curbside Service Unit Customers with one 96- gallon Refuse Cart. Customers may request a smaller 64-gallon or 35-gallon Refuse Cart. See Section 4.7.4.1 for Cart selection procedures. Additional Refuse Carts may be requested for a monthly fee per Cart in accordance with the approved rate schedule. Collection frequency shall be not less than once per week from Contractor -provided Refuse Carts placed at a suitable location, which is typically on the street adjacent to the curb or along an alley with street access at both ends, unless otherwise approved by the Executive Director. If there is a dispute between a Customer and Contractor as to whether Refuse Cart or Bin Service shall be provided, or the proper location for Refuse Cart placement, City will make the final determination. February 11, 2020 60 B33154 City of Santa Ana - DRAFT 4.2.2 Cart Overage Customers may periodically generate more Solid Waste than will fit in the Refuse Cart(s). Customers may contact Contractor to have extra waste Collected as a Bulky Item pickup under Section 4.2.10. Items left adjacent to Carts on regularly scheduled Collection days that have not been scheduled as a Bulky Item pickup, shall be counted as a Bulky Item pickup as described in Section 4.2.10. Contractor to Collect items and leave a notice on Customer's Refuse Cart notifying the Customer of the proper procedures to schedule a Bulky Item pickup. 4.2.3 Residential Curbside Service Unit Recyclable Materials Collection [NOTE: MATERIALS TO BE UPDATED BASED ON SUCCESSFUL PROPOSER'S PROPOSAL] Contractor shall provide all Residential Curbside Service Unit Customers receiving Cart Refuse Collection with a 96- gallon Cart for Collection of Recyclable Materials. Customers needing smaller Containers may request 64-gallon or 35-gallon Recycling Carts. Additional Recycling Carts may be requested for a monthly fee per Cart in accordance with the approved rate schedule. Recyclable Material Collection from Cart Customers within the City shall be a minimum of once each week, on the same day as Refuse Collection, and from the same set -out location as Refuse Containers. Contractor is responsible for moving all Recycling Carts as necessary for Collection, and then returning them to their original location. At a minimum, Recyclable Material Collected from Cart Customers shall include, but not be limited to: glass, tin, aluminum, PET, HDPE, narrow neck plastics, newspaper, mixed paper (including junk mail, phone books, and magazines), cardboard, and any additional materials that can be recovered and Recycled. Contractor and the City may meet and confer from time to time to re-evaluate this Recyclable Material list and to consider any amendments to it, based upon new or enhanced recycling technologies. Contractor shall ensure that all public education and outreach is updated to reflect materials that may be placed in Recyclable Materials Containers as they change during the term of this Agreement. Residential Recyclable Materials Collection shall be on the same day of the week as Refuse Collection service. February 11, 2020 60 B34155 City of Santa Ana - DRAFT 4.2.4 Residential Curbside Service Unit Organic Materials Collection [DETAILS OF COLLECTION PROGRAM TO BE INCLUDED IN COMPANY'S PROPOSAL] Contractor shall provide a Residential Curbside Unit Organics Collection program sufficient to enable City and Customers to meet or exceed the requirements of SB 1383 as of the start of Collection services under this Agreement. Contractor is required to implement a program to Divert Residential Food Waste from Residential Curbside Service Unit Customers, either co -collected with Yard Waste or separately Collected. Contractor shall provide weekly Collection of Organic Materials on the same day as Refuse Collection from the same set -out location as Refuse Carts. Contractor shall Collect Organic Materials placed in Contractor -provided Carts. The standard Organics Cart size is 96 gallons but customers may request a 64-gallon or 35-gallon Cart. Additional Organics Carts may be requested for a monthly fee per Cart in accordance with the approved rate schedule. Contractor is responsible for moving all Containers as necessary for Collection, and then returning them to their original location. Contractor shall have an Organic Materials Recycling program whereby it, at a minimum, Collects the types of Organic Materials required by CalRecycle for Residential Cart Customers. Contractor shall provide to the City a list of Organic Materials to be collected from Residential Curbside Service Unit Customers upon execution of this Agreement. Contractor shall ensure that all public education and outreach is updated to reflect materials that may be placed in Organics Materials Containers as they change during the term of this Agreement. 4.2.5 Senior and Mobile Home Low Generator Customers Contractor shall provide senior residents, as described in Section 5.1.2, and residents living in mobile home communities, both of which must live in households with no more than two persons and are low trash generators, a 35-gallon Refuse, Recycling, and Organics Cart. Senior Residents, and Residents living in mobile home communities, and receiving the Senior and Mobile Home Low Generator Rate (Section 5.1.2), are not eligible to receive additional Carts. 4.2.6 Section Deleted 4.2.7 Contamination Warning Notice - Residential Curbside Service Unit February 11, 2020 35 City of Santa Ana - DRAFT 60B-156 Customers Contractor is responsible for visually inspecting Containers for the Collection of Recyclables and Organics as may be necessary to determine whether the content is contaminated with non -Recyclable or non -Organic Solid Waste. Additionally, Contractor shall perform contamination monitoring, route reviews, and inspections in compliance with the CalRecycle requirements under SB 1383. The Recycling Containers shall be considered contaminated if it contains more than ten percent (10%) non -Recyclable material by weight. The Organics Containers shall be considered contaminated if it contains more than ten percent (10%) non -Organic material by weight. Contractor shall warn Customers who have non -Recyclable Materials or Organic Materials in their Recycling Container, Non -Organic Materials in their Organic Materials Container, or Organic Materials or Recyclables in their Refuse Containers as required by CalRecycle under SB 1383. a) 1st and 2nd instance: Contractor shall take photograph(s) of Cart content, collect the material from the Cart, leave a courtesy notice approved by the City that explains why the material collected was non -conforming, and notify the City. The written notice shall also explain the policy for non -conforming materials, recommend corrective action, explain the consequences for repeated instances, and any other information required by CalRecycle. b) 3rd and subsequent instances: In addition to the requirements under the Pt and 2nd instance, Contractor shall have the option of requesting that the City assess a Residential Curbside Service Unit Contamination Fee included in the approved rate schedule. 4.2.8 Holiday Tree Collection Program Except as provided herein, Contractor shall collect all holiday trees discarded by Residential Curbside Service Units on the first three regularly scheduled weekly Collection days after Christmas Day, at no additional charge. After this period, trees will be Collected as Bulky Items under Section 4.2.10. Trees under six (6) feet in length will be Collected and diverted without Customers needing to cut them. Contractor may require that Customers with larger trees cut the trees to pieces no longer than six (6) February 11, 2020 60B36A 57 City of Santa Ana - DRAFT feet, and that tinsel, ornaments and stands be removed prior to placement at Collection point (curb or as otherwise determined by Customer and Contractor). Contractor will Divert all holiday trees properly set out from landfilling. Contractor shall have no obligation to Collect larger trees if they have not been cut into pieces no longer than six (6) feet. Holiday trees with tinsel, ornaments or stands attached may be landfilled. 4.2.9 Walk -Out Service Contractor shall provide walk -out service to disabled individuals at Residential Curbside Service Units, consisting of removing Refuse, Recycling and Organics Carts from Customer's storage area, placing the Carts out for Collection, and returning Carts to Customer's storage area after Collection, ensuring that all doors or gates are closed securely. This service is provided at no additional charge to disabled Customers subject to the criteria below. To be eligible for this service, the Customer at the Residential Curbside Service Unit shall have a DMV issued disabled person placard or license plate or provide a letter to Contractor from a licensed physician certifying that he or she is unable to move his/her Carts to the curb. For all forms of eligibility, Customer must certify that there is no other capable person living in the Residential Curbside Service Unit. If eligibility is established by a physician certification, Contractor may require each eligible person at the Residential Curbside Service Unit to provide a new letter from a physician on an annual basis in order to maintain eligibility for walk -out service. Contractor shall provide walk -out service to other than disabled individuals at the request of the Customer, for a monthly fee as defined in the approved rate schedule. Contractor may require as a condition of walk -out service that a Customer sign a standardized agreement, the terms of which shall be subject to City's approval, which authorizes entry onto the Residential Curbside Service Unit premises serviced under Customer's account and holds Contractor harmless from liability (including specifically liability related to pets escaping) associated with Contractor providing such service. Contractor will notify all Residential Curbside Service Unit Customers annually, beginning within thirty (30) days of effectiveness of this Agreement, of this Collection option and submit, for approval, a draft notification to City prior to distribution to Customers. New Customers shall be notified of this option upon initiation of new Collection services. February 11, 2020 37 City of Santa Ana - DRAFT 60B-158 4.2.10 On -Call Bulky Item Pickup - Residential Curbside Service Unit Customers Contractor shall provide Bulky Item pickup service to all Residential Curbside Service Unit Customers. Each Residential Curbside Service Unit Customer shall be entitled to four (4) Bulky Item pickups per Rate Year at no additional charge. Contractor shall provide assistance of removal of Bulky Items on private property to senior citizens and the disabled at no additional cost. Customers may put out up to four (4) Bulky Items at each pickup, or four (4), thirty (30) gallon bags of Refuse, or twenty (20), thirty (30) gallon bags of Yard Waste. Contractor shall Collect all Bulky Items as defined in Section 1.11 including items referred to as Electronic Waste or "e-waste' as defined in Section 1.28. The following provisions shall apply to this program: • No single item that cannot be handled by two workers will be accepted. • The following items will not be picked up: Hazardous Materials (including u-waste but excepting e-waste), waste oil or anti -freeze. For the purposes of this section, items referred to as "e-waste' are not considered hazardous. Requests by Residential Curbside Service Unit Customers for such Collections shall be made directly to the Contractor who shall provide satisfactory telephone message receiving, transmitting and response procedures and shall be responsible for maintaining a log of such large item collections. On -call Bulky Item Collection requests shall be responded to by Contractor within a reasonable time but no more than five (5) working days after such a request is received. Residential Curbside Service Unit Customers that exceed the number of free pickups may receive Bulky Item Collection under the same terms for a fee, in accordance with the approved rate schedule, and shall be billed directly by Contractor. Contractor will notify all Residential Curbside Service Unit Customers of this service annually, beginning within thirty (30) days of effectiveness of this Agreement. New Customers shall be notified of this service upon request of Collection services. Contractor to develop a warning notice to inform Customers who set out Bulky Items without contacting Contractor and that exceed the number of items per pickup, or the number of pickups per year, that they may incur a charge in accordance with the approved rate schedule. February 11, 2020 38 City of Santa Ana - DRAFT 60B-159 4.2.11 Sharps Collection Program Contractor shall deliver or arrange for delivery to Customers, at no additional charge, within one week of request, a pre -paid, postage -paid mail -back container to safely collect Sharps and send Sharps for proper disposal. Residents are limited to four (4) containers at no additional charge per year. Each container shall be of adequate volume to accommodate the needs of a diabetic person for a three month period. 4.2.12 Used Motor Oil Recycling and Used Motor Oil Filter Collection Contractor shall Collect and Recycle used motor oil and used motor oil filters placed curbside by Refuse Carts on collection day. Contractor may instruct Customers to call - in for this service at least two business days (excluding Saturday, Sunday and holidays listed in Section 4.7.1) in advance. Contractor shall provide used motor oil Recycling containers and used motor oil filter Recycling bags to Customers upon request. Upon Collection of used motor oil, Contractor shall leave an empty container and oil filter Recycling bag. Contractor shall include in its public education materials the availability of this program and the free used motor oil containers and bags, and how to properly place the oil and filters for Collection. Contractor shall bill the City once per month for its costs associated with the Collection and Recycling of used motor oil and used motor oil filters in accordance with the approved rate schedule. Used motor oil Recycling containers and used motor oil filter Recycling bags are purchased by the City. City may elect to reduce or eliminate the used motor oil and used motor oil filter Recycling program and related Contractor compensation if grant funds are insufficient or not available. City may also elect to have a different contractor provide these services. 4.2.13 Universal Waste Collection Contractor shall provide a toll free number for Residential Curbside Service Unit Customers to schedule a Universal Waste pickup. Contractor shall collect the following Universal Waste items from Residential Curbside Service Unit Customers: • Electrical or electronic items (including televisions, stereos, computers, printers, cell phones and microwaves) • Household batteries • Automotive batteries February 11, 2020 39 City of Santa Ana - DRAFT 60B-160 • Mercury thermometers, switches • Fluorescent and compact fluorescent light bulbs Contractor shall instruct Residential Curbside Service Unit Customers to leave the materials on their door step or near their garage on the scheduled Collection date. Assistance will be provided to disabled Customers. A receipt will be left for all materials Collected per stop. Contractor shall provide public education and outreach of this program through the initial mailing, workshops, annual brochures/ mailings, the Santa Ana Green Quarterly Newsletter, Contractor's webpage, and community events as described in Sections 5.3.3 and 5.3.4. Contractor shall provide this service at no additional charge. 4.2.14 Recycling Reward Program On a quarterly basis, Contractor and City staff will choose four residences that have placed uncontaminated Recycling out for Collection. Contractor shall provide a $25 gift card, approved by the City, for the selected residences. 4.3 Commercial and Multi -Family Services This section describes Service provided to Commercial Customers, and Multi -Family Customers that are not Residential Curbside Service Units. 4.3.1 Commercial and Multi -Family Customer Refuse Collection Contractor shall provide Bin Refuse Service to Multi -Family Premises Customers and Commercial Customers. Contractor shall Collect and remove all Refuse that is placed in Bins from the property of Customers receiving Bin Service, at least once per week and more frequently if required to handle the waste generated at the Premises where the Bins are located, or if requested by Customer. Minimum Container capacity requirements are described in Section 16-37 of the City of Santa Ands Municipal Code. Special consideration shall be given when determining the pickup areas to ensure that the flow of traffic is not impeded. Repeated, reasonable public complaints about unreasonable interference with traffic flows may constitute a default or violation of this Agreement. February 11, 2020 40 City of Santa Ana - DRAFT 60B-161 Customers may lease from Contractor or third parties compaction equipment that may be attached to Bins. The provision of compaction equipment is outside the scope of this Agreement. Collection of Bins using these devices remains within the scope of this Agreement unless otherwise excluded per Section 2.9. 4.3.2 Commercial Cart Service As an alternative to the requirements of Section 4.3.1, Contractor shall offer Collection in Refuse Carts to Customers at Multi -Family and Commercial Premises that do not have space for, or do not generate enough waste to require the use of Bins for Collection in accordance with the approved rate schedule. If Contractor and Customer have a disagreement as to whether Cart service is appropriate, or if City determines that Collection in Carts causes health and safety or other concerns, City shall make the final determination as to whether Collection in Carts may occur. Multi -Family Premises with a Homeowners' Association may request Cart service upon approval by the Executive Director, and shall be charged the Residential Curbside Service Unit rates included in the approved rate schedule. Commercial and Multi -Family Premises Customers that receive Refuse Carts, shall also receive a Recycling Cart at no additional charge. 4.3.3 Roll -off Box Service Contractor shall provide exclusive (as limited by Section 2.9) permanent and temporary Roll -off Box Collection (excluding Temporary Construction and Demolition service) service upon request. Contractor must deliver a temporary Roll -off Box to a Customer within two business days (excluding Saturday, Sunday and holidays listed in Section 4.7.1) of request. Special request to empty Roll -off Boxes outside of regularly scheduled Collections shall be performed within one business day. Contractor will provide standard 10, 30 and 40-cubic-yard standard Roll -off Boxes. The provision of compactor Roll -off Boxes, which are enclosed Containers attached to a compaction devise, is not included in this Agreement. Providing service to such compactor Roll -off Boxes is included. Contractor shall transport and process Roll -off loads at a MRF in compliance with CalRecycle and acceptable to the City. hi the event that Contractor is unable to provide temporary service to any Customer within five (5) business days (excluding Saturday, Sunday, or holidays listed in Section February 11, 2020 41 City of Santa Ana - DRAFT 60B-162 4.7.1), Executive Director may permit any other licensed hauler to provide service if, but only if, Contractor has not provided service within twenty-four (24) hours after reasonable notification by Executive Director. 4.3.4 Temporary Bin Service Contractor shall provide exclusive (as limited by Section 2.9) temporary Bin Service to Customers upon request. Contractor must deliver a temporary Bin to a Customer within two business days (excluding Saturday, Sunday or holidays listed in Section 4.7.1), if requested by 12:00 noon; otherwise delivery shall be no later than the second day. Rates for temporary Bin Service are listed separately in the approved rate schedule. 4.3.5 Commercial and Multi -Family Recycling Contractor shall provide Source -Separated Recycling using Bins or Carts for Commercial and Multi -Family Refuse Bin Customers requesting such service in accordance with the approval rate schedule. 4.3.5.1 Site Visits, Education and Outreach Commercial and Multi -Family Recycling Contractor will promote Commercial and Multi -Family Recycling programs and assist the City in providing reports on Customers' Recycling efforts. Contractor shall conduct the planned tasks, and procedures contained in Exhibit 8 "AB 341, AB 1826, and SB 1383 Implementation Plan," based on the schedule included in Exhibit 8. Beginning July 1 of the first contract year, and annually thereafter, a Contractor representative will contact, via in -person meetings, all Multi -Family and Commercial Customers not subscribing to Recycling Collection service required under applicable CalRecycle requirements. The Contractor representative shall assist customers with selecting appropriate Containers and Container sizing, identifying acceptable Recyclable Materials for Collection, and attempting to resolve any logistical detriments to providing Recyclable Materials Collection service. Contractor shall provide a written proposal to each AB 341 non -compliant Commercial and Multi -family Customer annually. The proposal shall provide pricing for implementing Recycling service and reducing, or'right-sizing', Refuse service to account for materials diverted through the Contractor -provided Recycling program; a proposed start date for the implementation February 11, 2020 42 City of Santa Ana - DRAFT 60B-163 of new Recycling services; a description of the requirements of AB 341 and any relevant City ordinances; a plan for training staff and/or residents; and any other components as directed by the City. A proposal template shall be approved by the City prior to initiation of services under this Agreement. Electronic copies of all service proposals from site visits that have been submitted to a Customer shall be provided to the City in an electronic storage format acceptable to the City, such as a cloud -based file sharing system that can be accessed by the City or its representative. If a Customer rejects the proposal from the Contractor or does not provide a response within 30 days of the Contractor submitting the proposal, and, after at least three documented attempts by the Contractor to follow-up with the Customer, the Customer continues to be non -responsive, the Contractor may refer the Customer to the City for enforcement action through any future ordinances that may be implemented by the City. Such a referral to the City by the Contractor for non -compliant accounts must include a written summary and timeline of the actions taken by the Contractor to implement an AB 341-compliant program; a copy of the written proposal submitted to the Customer by the Contractor; and any written correspondence from the Customer to the Contractor. If, after the City begins enforcement proceedings against the Customer, the Customer agrees to comply and implement an AB 341-compliant program, the City will notify the Contractor of the Customer's willingness to comply and the Contractor will coordinate with the Customer to implement an AB 341-compliant program. Contractor will incorporate education regarding Recyclable Material Collection and the State requirements into materials produced under Section 5.3, and will develop its own Recycling -specific instructional materials for use in educating participating Customers. Additional materials may include instructional posters, brochures, educational presentations, bin signage, enclosure signage, stickers to be attached to internal recycling receptacles, or other formats as mutually agreed to between City and Contractor. As with all outreach material, all items must be submitted for review and approval by City prior to distribution. Contractor shall provide a report, on City provided forms, to the City noting the time, Customer contact, name of Contractor's staff that contacted the Customer, and result of each meeting and, if the Customer will not agree to a meeting, provide the time of contact, Customer contact name and number, and reason for not accepting a meeting. Reports will be updated on a quarterly basis and submitted with Contractor quarterly reports to the City. Contractor will report all Customers that have service levels within February 11, 2020 43 City of Santa Ana - DRAFT 60B-164 the thresholds of AB 341 on reporting forms provided by the City on a quarterly basis. The report will document whether the Customer receives Recycling service from the Contractor, self -recycles, or receives Recycling from a third party. Any internal Recycling programs or third -party recycling programs that the Contractor encounters while conducting Customer site visits shall be documented using a City -approved electronic reporting form and provided in an electronic format such as a cloud -based file -sharing system that can be accessed by the City or its representatives. 4.3.5.2 Processing of Mixed Waste [OPTIONAL PROGRAM - TO BE UPDATED BASED ON SUCCESSFUL PROPOSER'S PROPOSAL] Contractor shall process mixed Solid Waste at a Material Recovery Facility for those Commercial and Multi -Family Customers that do not subscribe to a Source -Separated Recycling program, or otherwise participate in a qualifying Recycling program in accordance with AB 341. 4.3.6 Commercial and Multi -Family Organics Collection [DETAILS OF COLLECTION PROGRAM TO BE INCLUDED IN COMPANY'S PROPOSAL] Contractor shall Collect, process and divert Organic Materials from Commercial and Multi -Family Customers. Contractor shall provide a program sufficient to enable City and Customers to meet or exceed the requirements of SB 1383 as of the start of Collection services under this Agreement. Contractor shall tailor the appropriate program to accommodate the waste generation and space constraints of each Customer. Contractor shall offer Organic Materials Carts and Bins based on the Customer's needs and space limitations for Container placement. 4.3.6.1 Site Visits, Education and Outreach - Commercial and Multi -Family Organics Recycling Contractor will promote Commercial and Multi -Family Organics Collection programs and assist the City in providing reports on Customers' Organics Collection efforts. Contractor shall conduct the planned tasks, and procedures contained in Exhibit 8 "AB February 11, 2020 44 City of Santa Ana - DRAFT 60B-165 341, AB 1826, and SB 1383 Implementation Plan;' based on the schedule included in Exhibit 8. Beginning July 1 of the first contract year, and annually thereafter, a Contractor representative will contact, via in -person meetings, all Multi -Family and Commercial Customers not subscribing to the Organic Materials Collection service required under applicable CalRecycle requirements. The Contractor representative shall assist customers with selecting appropriate Containers and Container sizing, identifying acceptable Organic Materials for Collection and processing, and attempting to resolve any logistical detriments to providing Organic Materials Collection service. Contractor shall provide a written proposal to each non -compliant Commercial and Multi -family Customer that meets the thresholds of AB 1826 and/or SB 1383 annually. The proposal shall provide pricing for implementing Organics Recycling service and reducing, or 'right -sizing', MSW service to account for materials diverted through the Contractor - provided Recycling program; a proposed start date for the implementation of new Organics Recycling services; a description of the requirements of AB 1826/SB 1383 and any relevant City ordinances; a plan for training staff and/or residents; and any other components as directed by the City. A proposal template shall be approved by the City prior to contract initiation. Electronic copies of all service proposals from site visits that have been submitted to a Customer shall be provided to the City in an electronic storage format acceptable to the City, such as a cloud -based file sharing system that can be accessed by the City or its representatives If a Customer rejects the proposal from the Contractor or does not provide a response within 30 days of the Contractor submitting the proposal, and, after at least three documented attempts by the Contractor to follow-up with the Customer, the Customer continues to be non -responsive, the Contractor may refer the Customers to the City for enforcement action through any future ordinances that may be implemented by the City. Such a referral to the City by the Contractor for non -compliant accounts must include a written summary of the actions taken by the Contractor to implement an AB 1826/SB 1383-compliant program; a copy of the written proposal submitted to the Customer by the Contractor; and any written correspondence from the Customer to the Contractor. If, after the City begins enforcement proceedings against the Customer, the Customer agrees to comply and implement an AB 1826/SB 1383-compliant program, the City will notify the Contractor of the Customer's willingness to comply and the February 11, 2020 45 City of Santa Ana - DRAFT 60B-166 Contractor will coordinate with the Customer to implement an AB 1826/SB 1383- compliant program. Contractor will incorporate education regarding Organics Recycling and the State requirements into materials produced under Section 5.3, and will develop its own Organics -specific instructional materials for use in educating participating Customers. All participants shall receive ongoing, on -site training from Contractor for management, kitchen staff, service employees, janitors, etc. Annually, Contractor will create and distribute a letter to all Customers that are enrolled in the Contractor's Organics Recycling program to offer re-training services, printed collateral such as signage and posters, and general technical assistance. Additional materials may include instructional posters, brochures, educational presentations, bin signage, enclosure signage, stickers to be attached to internal Recycling receptacles, or other formats as mutually agreed to between City and Contractor. Contractor will provide Customers that enroll in the Contractor's Organics Recycling program with one (1), yellow, internal Recycling receptacle upon request by the Customer at a price equal to Contractor's cost. Contractor will track the distribution of the internal Recycling receptacles and provide quarterly distribution data to the City. As with all outreach material, all items must be submitted for review and approval by City prior to distribution. Contractor shall provide a report, on City provided forms, to the City noting the time, Customer contact, name of Contractor staff that contacted the Customer, and result of each meeting and, if the Customer will not agree to a meeting, provide the time of contact, Customer contact name and number, and reason for not accepting a meeting. Reports will be updated on a quarterly basis and submitted with Contractor quarterly reports to the City. Contractor will report all Customers that have service levels within the thresholds of AB 1826 and SB 1383 on reporting forms provided by the City on a quarterly basis. The report will document whether the Customer receives Recycling service from the Contractor, self -recycles, receives Organics recycling from a third party, or donates edible food. Any internal Organics Recycling programs or third -party Organics Recycling programs that the Contractor encounters while conducting Customer site visits shall be documented using a City -approved electronic reporting form. Contractor shall collect photograph documentation of the internal recycling program or third -party recycling program. All documentation of the internal Organics Recycling programs or third -party Organics Recycling programs, shall be provided in an electronic format approved by the City, such as a cloud -based file -sharing system February 11, 2020 46 City of Santa Ana - DRAFT 60B-167 organized such that each Customer has a unique folder that will house service proposals, photographs, and other items documenting the Contractor's compliance implementation interactions with the Customer. 4.3.6.2 Organics Waste Recycling Program Cost The full compensation to Contractor to provide the Commercial and Multi -Family Organic Materials program as described in Section 4.3.6 is included in the approved rate schedule. Organic Materials Carts and Bins, public outreach, and all other elements of this program are to be provided at no additional cost. Participation in this program is anticipated to increase over time and has been factored into the rates, and no further compensation adjustment shall be implemented except for the annual rate adjustment described in Article 6. 4.3.7 Roll -off Box Organic Materials Collection Service Contractor shall make permanent Roll -off Box Organic Materials Collection available to all Customers in accordance with the approved rate schedule. 4.3.8 Food Rescue and Donation Program Contractor shall coordinate food rescue and donation efforts with each Customer deemed to generate Organic Materials as required by CalRecycle. Coordination shall include providing Customers with information on rescue and donation opportunities. Contractor shall perform quarterly examinations of Customer's waste stream for food donation opportunities and report results to the City and food rescue organizations. 4.3.9 Contamination Warning Notice - Commercial and Multi -Family Premises Bin Customers Contractor is responsible for visually inspecting Containers for the Collection of Recyclables and Organics as may be necessary to determine whether the content is contaminated with non -Recyclable or non -Organic Solid Waste. Additionally, Contractor shall perform contamination monitoring, route reviews, and inspections in compliance with the CalRecycle requirements under SB 1383. The Recycling Containers shall be considered contaminated if it contains more than ten percent (10%) non -Recyclable material by weight. The Organics Containers shall be February 11, 2020 47 City of Santa Ana - DRAFT 60B-168 considered contaminated if it contains more than ten percent (10%) non -Organic material by weight. Contractor shall warn Customers who have non -Recyclable Materials or Organic Materials in their Recycling Container, Non -Organic Materials in their Organic Materials Container, or Organic Materials or Recyclables in their Refuse Containers as required by CalRecycle under SB 1383. a) 151 instance: Contractor shall take photograph(s) of Container content, collect the material from the Container, provide a courtesy notice that explains why the material collected was non -conforming, and notify the City. The written notice shall also explain the policy for non -conforming materials, recommend corrective action, explain the consequences for repeated instances, and any other information required by CalRecycle. b) 2nd and subsequent instances: In addition to the requirements under the 191 instance, Contractor shall have the option of assessing a Commercial and Roll -off Customer Contamination Fee included in the approved rate schedule, or Contractor may refuse to collect contaminated Containers upon written notification of Customer indicating the reason for non -Collection, and options for corrective action. A copy of such notice shall be delivered to the City via email upon request by the Executive Director or designee. Each written notice and photograph shall be available to the City upon request. For Residential Curbside Service Units, the second or third instance shall be counted as such if they occur within twelve (12) calendar months of the initial instance. For Commercial and Roll -off Customers, the second instance shall be counted as such if it occurs within twelve (12) calendar months of the initial instance. If twelve (12) calendar months have elapsed since a written notification was issued for a non -conforming Cart or Container, the next instance stall be deemed the initial instance. If the Customer has changed, and the account is new, with different occupants, the written notification shall be considered the initial instance. 4.3.10 Scout Service Upon Customer request and approval by the Executive Director, Contractor shall provide scout service, whereby Contractor will access Containers using a small vehicle either to move Containers to street or other public right-of-way for Collection, or February 11, 2020 48 City of Santa Ana - DRAFT 60B-169 Collecting Solid Waste directly from Container storage location. The Contractor may charge the scout rate included in the approved rate schedule to move or retrieve a Container when operationally required in order to safely position the Container for Collection. In the event of a dispute between Contractor and Customer as to whether scout service will be used, the Executive Director will make the final determination. If a scout fee is charged then a Bin pushout fee shall not be charged. 4.3.11 Bin Pushout Service Upon Customer request, Contractor shall provide Bin pushout service, whereby Contractor will move Containers manually to facilitate Collection. The Contractor may charge the pushout rates included in the approved rate schedule to move or retrieve a Container over twenty-five (25) feet to facilitate Collection. For Containers in Bin enclosures, the measurement of distance shall be from location of the Bin once removed from the enclosure to the point of Collection. hi the event of a dispute between Contractor and Customer as to whether pushout service will be used, Executive Director will make the final determination. If a Bin pushout fee is charged then a scout service fee shall not be charged. If Contractor must place a Bin in the public right-of-way to facilitate Collection, Contractor shall not permit the Bin to remain in the public right-of-way over one hour. If the Bin is stored under a chute for Solid Waste Collection, the Bin must be serviced and returned immediately. 4.3.12 Locking Bins Contractor shall provide locking Bin Service (providing the hasp, key and lock and servicing the lock) to Customers that request such service in accordance with the approved Rate Schedule. 4.3.13 Return Trip Fee Contractor may charge a return trip fee, per the approved rate schedule, in the event that Contractor arrives on time for a scheduled Collection of Bins or Roll -off Boxes, and is impeded from Collection due to Container being blocked or otherwise unable to be Collected due to issues within the Customer's control. The fee may be assessed if Contractor must return a second time for Collection. Charge may be assessed for the trip, not per Container, in the event of a Customer with multiple Containers. If February 11, 2020 49 City of Santa Ana - DRAFT 60B-170 Contractor attempts to contact Customer to confirm that the Container is accessible, but Customer is non -responsive, Contractor need not return that day and, therefore, may not charge the return trip fee. 4.3.14 On -Call Bulky Item Pickup - Multi -Family Premises with Refuse Bin Service and Commercial Premises Customers [TO BE UPDATED BASED ON COMPANY'S PROPOSAL.] 4.3.15 Holiday Tree Collection - Multi -Family Bin Customers Contractor shall collect all holiday trees discarded by Multi -Family Premises during the three weeks following Christmas Day, at no additional charge. After this period, trees will be Collected as Bulky Items under Section 4.3.14. Trees under six (6) feet in length will be Collected and diverted without Customers needing to cut them. Contractor may require that Customers with larger trees cut the trees to pieces no longer than six (6) feet, and that tinsel, ornaments and stands be removed prior to placement at Collection point (curb or as otherwise determined by Customer and Contractor). Contractor will Divert all holiday trees from landfilling. Contractor shall have no obligation to Collect larger trees if they have not been cut into pieces no longer than six (6) feet. Holiday trees with tinsel, ornaments or stands attached may be landfilled. 4.4 City Services (City Government Operations) 4.4.1 City Government Operations Contractor shall collect all Solid Waste, Electronic Waste, and Construction and Demolition Solid Waste which is generated by City government operations at no additional cost to the City. The City shall provide Contractor with a list of locations of bins and/or Roll -off containers from which such Solid Waste shall be collected. Said list may be modified by time to time by the Executive Director. Solid Waste generated by such City operations shall be collected by Contractor per a schedule provided to Contractor by the Executive Director. Schedule shall be approved between the Contractor and the Executive Director. 4.4.2 Construction and Demolition from City Government Operations The City will implement procedures to separate wood, Organics, metals, and inert materials from mixed waste generated through City construction projects, from City February 11, 2020 60B50A 7 City of Santa Ana - DRAFT government operations. Contractor is not required to Collect, transport and Divert Construction and Demolition Debris from significant City construction and demolition projects performed by contractors. The separation procedures will be applied to inbound loads that readily lend themselves to manual separation. The implementation of the procedures may, from time -to -time, be hampered by City Yard logistics or by personnel availability. The separation procedures will be incorporated by the City as a standard operating procedure and will be reasonable and practicably applied. 4.4.3 City Sponsored Events Contractor shall provide Solid Waste Collection and Disposal/processing service for City -sponsored events at no additional charge to City or Ratepayers. This shall include providing Refuse Containers (Carts, Bins, Roll -off Boxes, and cardboard waste boxes with liners) to Collect and dispose of, or process, all Solid Waste. Contractor shall provide Containers for the Collection of Recyclable Materials and Organics Materials. The list of City -sponsored events may change over time and include, but are not limited to: • 411' of July Celebration at Centennial Park • Wilshire Square Summer Concert • Townsend-Raitt Community Fiesta/SoCal Day of Hope, Health and Resource Fair • Santa Ana Fiestas Patrias • Cleanup Your Yard Cascade Street • Santa Ana National Night Out 4.4.4 Parkway Cleanup Following Garage Sales Contractor shall provide two (2) employees in a "front loader" vehicle to provide sixty (60) vehicle hours each six (6) working days following the quarterly garage sales to canvass the City neighborhoods in order to remove debris left in the parkways after the garage sales at no additional charge. Contractor shall transport all Solid Waste Collected by Contractor from Parkway Cleanups within the City boundaries to a state permitted MRF, in compliance with CalRecycle and acceptable to the City. February 11, 2020 O B51 A n City of Santa Ana - DRAFT 4.4.5 Weekly Alley Cleanups Contractor shall provide two (2) employees in a "front loader" vehicle to provide sixty (60) vehicle hours each six (6) working days each week to canvass the City neighborhoods in order to remove debris left in alleyways at no additional charge. Contractor shall transport all Solid Waste Collected by the Contractor from Alley Cleanups within the City boundaries to a state permitted MRF, in compliance with CalRecycle and acceptable to the City. 4.4.6 Grant Administration Contractor shall be responsible for the development and management of grants pursuant to the regulations contained in AB 939 and/or adopted by CalRecycle including the Department of Conservation and other governmental agencies that offer grants related to Collection and Recycling Services provided under this Agreement. Contractor shall be compensated $ per hour for grant administrators time to develop and administer grant programs as requested by the City. Contractor shall submit an invoice detailing tasks performed, and time charged in quarter-hour increments in order to be reimbursed for grant administrator's time. 4.4.7 Public Education and Outreach Consultant hi the event that City, in its sole discretion, determines that the Contractor fails to fulfill the public education and outreach requirements contained in this Agreement to the City's satisfaction, or if CalRecycle refers the City to the Jurisdiction Compliance Unit OCU) for additional enforcement review/action, or if less than ninety percent (90%) of the City's Commercial and Multi -Family Customers subject to the requirements of AB 341 and/or AB 1826 are in compliance with the mandatory requirements for Commercial Recycling and/or Organics by December 31, 2023, the City retains the right to direct Contractor to provide funding for the City to retain a public education and outreach consultant to perform the duties set forth in this Agreement, at no additional cost to the City. The City will notify the Contractor in writing of its intent to procure a public education and outreach consultant. Within 30 days of written notice from the City, Contractor and City shall meet and confer in good faith prior to City retaining a public education and outreach consultant to develop a scope of work, timeline, and projected budget amount for the public education and outreach consultant. Upon 120 days of written notice to the Contractor of the City's intent for to procure a public February 11, 2020 52 City of Santa Ana - DRAFT 60B-173 education and outreach consultant, the Contractor shall provide funds to the City to retain a public education and outreach consultant of the City's choosing. The minimum term of the public education and outreach consultant's contract shall be 12 months and any subsequent contract extensions shall be in increments of 12 months. Upon selection of the public education and outreach consultant by the City, the Contractor shall remit quarterly payments to the City for the cost of the public education and outreach consultant (i.e. if the contract amount was $100,000, the Contractor would remit quarterly payments to the City of $25,000 for the term of the engagement). The City will direct the work efforts of the public education and outreach consultant. During the term of the consultant's engagement, the Contractor shall cooperate with the consultant to provide customer service and operations data to the consultant, implement Recycling and Organics programs at Customer sites as requested by the consultant, and to meet with the City and the consultant periodically to assess program progress. The City and the Contractor shall confer annually to assess the City's outreach/education progress, compliance status, and to determine if the public education and outreach consultant's contract shall be extended by an additional 12 months. 4.4.8 Battery Recycling Program Contractor shall provide and service as many battery Recycling containers as requested by City, to City facilities for no additional cost. Contractor shall Collect and replace containers upon City's request for proper Recycling of batteries. 4.4.9 Procurement of Recovered Organic Waste Products Contractor shall procure sufficient compost, mulch, and/or renewable natural gas to meet the City's per capita requirement contained in SB 1383. Contractor may meet this obligation by one or a combination of the following activities: • Bulk Compost and/or Mulch Reserved for Jurisdiction -Company shall make available for City Compost or Mulch for use in City parks and facilities at no cost to the City. • Compost Giveaway as described in Section 4.4.5. • Use of renewable natural gas in Collection vehicles. Contractor shall ensure sufficient capacity of California recovered organics waste products to meet the mandatory procurement requirements for jurisdictions contained February 11, 2020 60B53A 74 City of Santa Ana - DRAFT in SB 1383, as may be amended, during the term of this Agreement including Agreement extensions granted by the City. 4.4.9.1 Contractor Warranty of Recovered Organic Waste Products Contractor shall provide assurance through the execution of a liability waiver stating that all organic waste products provided by the Contractor and used within the City are free from pathogens and inorganic waste material that may be harmful to the health and welfare of the City. The Contractor shall indemnify and hold harmless the City against any claims arising from contaminated recovered organic waste products provided by the Contractor as set forth in Section 9.1. 4.5 Community Services 4.5.1 Neighborhood Cleanups Contractor shall supply Roll -off Containers for City sponsored neighborhood cleanups at no additional cost to City. The number of Roll -off Containers shall not exceed a maximum total number of three hundred (300) Containers annually. Notwithstanding the above, at any time that the City determines that the number of Collections and/or the number of Roll -off Containers provided for in this section is not adequately meeting the City's needs, the City and Contractor will meet and confer regarding these provisions, and may, by mutual agreement, modify the number of Collections and/or Roll -off Containers. 4.5.2 Household Hazardous Waste Drop -Off Events [TO BE UPDATED BASED ON CONTRACTOR'S PROPOSAL] Contractor to sponsor an annual Household Hazardous Waste Drop -Off Event at a site selected by the City. Contractor to provide Collection and safe Disposal of all Household Hazardous Waste brought to the event by residents of City at no additional charge. Contractor shall coordinate with selected site to determine the date and time of event and will advertise the event in local newspapers, through a direct -mail postcard to residents, on the City's website, and through additional print media as requested by the City. February 11, 2020 O B54 7 5 City of Santa Ana - DRAFT 4.5.3 Shredding Service Event Contractor shall provide an on -site mobile shredding service for use by City residents (a "Shredding Event") one (1) time per calendar year at no additional charge. The Shredding Event shall be provided at a date, time, and location designated and approved by the Executive Director, in his or her reasonable discretion, and should be for a minimum of three (3) hours in duration. In the event inclement weather prevents a Shredding Event from occurring, Contractor shall reschedule the Shredding Event to a date, time and location designated and approved by the Executive Director. The Shredding Event shall be conducted at Contractor's sole cost and expense, utilizing equipment, personnel, and methods appropriate for such event, as approved by the Executive Director. Prior to each Shredding Event, Contractor shall coordinate with City staff and/or public safety personnel to make arrangements for safe, convenient, and effective access to and participation by City residents in the Shredding Event, and shall procure all necessary insurance coverage. Each Shredding Event shall be designed to accommodate up to a maximum of five (5) 'Bankers" boxes of paper or other media suitable for shredding from each Residential and Multi -Family Premises Customer within the City that is participating in the Shredding Event. Residents participating in the Shredding Event must be able to visually observe the materials they delivered to the Shredding Event. Contractor shall publicize each Shredding Event through methods, and using materials, approved by the Executive Director, at no cost to the City. 4.5.4 Compost Giveaway Contractor shall provide one compost giveaway event per calendar year at no additional charge. Santa Ana residents will be allowed to fill up their containers on a first -come, first -serve basis. Contractor shall provide forty (40) tons of compost material, generated in the State of California, delivered to a location designated by the City. Any compost material remaining after event shall be removed by Contractor. The compost giveaway event will be coordinated with the City and can be held in conjunction with other City events. 4.5.5 Medication Takeback Program Contractor will assist the City in increasing awareness of medication takeback programs provided by local pharmacies, or programs offered by other government entities. Promotional activities will include: posting on Contractor's website, inclusion in the February 11, 2020 55 City of Santa Ana - DRAFT 60B-176 Annual Brochures/Mailings mailed to each Residential Customer, quarterly newsletters, social media targeted outreach, and press releases to local news outlets. 4.5.6 Environmental Ambassador Program Contractor must establish an annual recognition program for commercial businesses in the City. The Environmental Ambassador Program will be a voluntary program managed entirely by Contractor, and certification may include refuse, water and energy conservation, pollution prevention, and reduction of toxic substances in the workplace. Businesses certified will be honored by Contractor at a City Council Meeting. 4.6 Diversion and Processing Requirements 4.6.1 Minimum Recycling Requirements Contractor shall Divert from landfilling a minimum of % of all Solid Waste it Collects under this Agreement excluding Construction and Demolition Debris. Compliance will be measured on a calendar year basis, except that compliance will be measured during the first compliance period for the eighteen (18) months ending December 31, 2023, and compliance during the final year will be based on a partial year if the term ends before December 31 in the final year. Solid Waste Collected shall only be considered to have been Recycled or diverted as required under this Agreement if it is deemed to be Diversion by CalRecycle in connection with efforts to meet City's Diversion goals. Contractor shall provide documentation to the City within 45 days of the end of each calendar year stating and supporting that calendar year's Diversion rate. Diversion from sources other than Contractor's Collection and Diversion efforts (such as source reduction, reuse, or Recyclable Materials diverted by other Solid Waste enterprises, Collection of materials that are not the subject of this Agreement, or the efforts of self -haulers) is not to be counted as Diversion achieved by Contractor. Failure to achieve the minimum diversion requirement may result in liquidated damages as described in Section 11.4.13.9 of this Agreement. In the event that the minimum Diversion requirement is not met, and, no sooner than three (3) years after the start of services under this Agreement, and not more often than once every two (2) years thereafter, the Parties agree to meet and confer regarding adjustments to the minimum Diversion rate, based on factors including waste characterization data provided by Contractor, trends in source reduction and reuse, trends in third party Diversion, the availability of permitted Facilities that are capable of February 11, 2020 60B56A �� City of Santa Ana - DRAFT processing material to achieve the required levels of Diversion, emerging methods of processing and Recycling/reusing new waste materials, the availability of markets, and the impact of scavenging. City shall consider such information provided by Contractor and other industry data and shall, at its sole discretion, determine if any adjustments to the minimum Diversion requirements shall be made, and such changes must be approved by the City Council before becoming effective. If these Diversion requirements are not met, City may instruct Contractor to initiate new programs at Contractor's expense in order for this goal to be met on a consistent basis. 4.6.2 Organic Materials Processing Contractor shall process recovered Organic Materials in a manner that maximizes diversion credit for City in accordance with CalRecycle regulations. 4.6.3 End Uses for Organic Materials Contractor shall Divert from landfilling Organic Material Collected through weekly Cart, bundle, Bin and Roll -off Box Collection, holiday tree Collection, and Mixed Waste Processing from Disposal. Contractor must provide end uses for Organic Material that maximizes Diversion credits for City according to regulations established by AB 1594. Contractor is responsible for monitoring how the Organic Material will be diverted at selected facilities and for selecting alternative facilities if necessary to ensure full Diversion credit. Failure to do so places the Contractor in default. City has the option, but not obligation, to direct Contractor where to deliver the material, and if City directs Contractor to an alternative Facility then Contractor may request a rate adjustment in accordance with Section 2.10.2. 4.6.4 Bulky Item Diversion Bulky Items Collected by Contractor in accordance with Sections 4.2.10 and 4.3.14, or otherwise Collected under this Agreement, may not be landfilled or disposed of until the following hierarchy of Diversion efforts has been followed by Contractor: 1) Reuse as is 2) Disassemble for reuse or Recycling 3) Recycle or market and sell Recyclable Materials for Recycling February 11, 2020 57 City of Santa Ana - DRAFT 60B-178 4) Disposal This hierarchy is intended to preclude the use of front or rear loading packer vehicles for Bulky Items unless the compaction mechanism is not used to compact the Bulky Items, unless they have been designated for Disposal. 4.6.5 Construction and Demolition Debris Diversion [OPTIONAL SERVICE IF ADDED TO EXCLUSIVE SCOPE OF AGREEMENT BY CITY]. Contractor will bring all loads of mixed Construction and Demolition Debris to a properly permitted construction and demolition debris processing Facility selected by Contractor for separation and recovery of this material. Contractor may deliver separated loads of Construction and Demolition Debris, such as clean dirt, concrete or rebar, to facilities specializing in the reuse of such materials, provided this material is Diverted from landfilling. Contractor shall Divert from landfilling a minimum of the State -mandated Construction and Demolition Diversion percentage of all Construction and Demolition Debris Collected. 4.6.6 Diversion of Electronic, Universal and Other Special Wastes Contractor shall Divert waste requiring special handling, such as Electronic Waste, or "e-waste' Collected in accordance with Sections 4.2.10 and 4.3.14, or by other means under this Agreement, by taking these goods to a properly permitted Facility, and not by landfilling. Contractor may encourage Customers through public education materials to bring small items requiring special handling, such as fluorescent bulbs or batteries, to a local HHW drop-off center. 4.6.7 Marketing and Sale of Recyclable Materials Contractor shall be responsible for marketing and sale of all Recyclable Materials Collected pursuant to this Agreement. Contractor may retain revenue from the sale of Recyclable Materials, and shall report the amount of such revenues to City upon request. In the event that Contractor is unable, after reasonable diligence, to sell or donate certain Recyclable Materials due to the lack of a market for them, Contractor may request, and City may authorize Contractor, in its sole discretion, to dispose of said February 11, 2020 58 City of Santa Ana - DRAFT 60B-179 Recyclable Materials without sale, subject to on -going review by the City. In the event market conditions for said Recyclable Materials change such that they can, once again, be sold by Contractor, City may withdraw its consent for Contractor to dispose of said Recyclable Materials and may, again, require Contractor to sell said Recyclable materials as otherwise provided in this Agreement. 4.7 Operations 4.7.1 Schedules To preserve peace and quiet, Solid Waste shall only be Collected from Residential areas between 6:00 A.M. and 6:00 P.M. Monday through Friday. Solid Waste may be Collected from Commercial and industrial locations between 3:00 A.M. and 9:00 P.M. Monday through Saturday, provided that said Commercial and industrial locations are at least one hundred (100) feet away from Residential units. Commercial and industrial locations which are less than one hundred (100) feet away from Residential units shall be treated as Residential areas and Solid Waste may only be collected from those locations between 6:00 A.M. and 6:00 P.M. Monday through Friday. Further, if complaints are received from Residential units which are at least one hundred (100) feet away from Commercial and industrial locations, the Executive Director may direct that collections in such Commercial or industrial areas shall be made between the hours of 6:00 A.M. and 6:00 P.M., and in that event Contractor agrees to comply with such order. Contractor may not make exceptions to these Collection days and times without advanced written approval from the City. If the regularly scheduled Collection day falls on New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, or Christmas Day, Collection days for the remainder of that week shall all be postponed one Collection day and Residential Collection is permitted on Saturday during the make-up week. Contractor shall annually review with the City its operations plan outlining the Collection routes, intervals of Collection and Collection times for all materials Collected under this Agreement upon 30-day written notice requesting said review. More frequent reviews may be required by City if operations are not satisfactory based on documented observations, reports or complaints. If the plan is determined to be inadequate by City, Contractor shall revise the plan incorporating any changes into a revised plan and review said revised plan with City within thirty (30) calendar days. February 11, 2020 59 City of Santa Ana - DRAFT 60B-180 4.7.2 Missed Pickups When notified of a missed pickup prior to noon, Contractor shall Collect the Refuse, Recyclable Materials, and/or Organic Materials that was not Collected the same day. If notified after noon, Collection must take place no later than the next Collection day (excludes only Sundays and holidays listed in Section 4.7.1 and, for Residential Cart Customers, Saturday). 4.7.3 Vehicles A. General. Contractor shall provide Collection vehicles sufficient in number and capacity to efficiently perform the work required by the Agreement in strict accordance with its terms as described in Contractor's Proposal. Any additional vehicles/routes that may be required to meet the service standards during the term of this Agreement, above the number included in Contractor's Proposal shall be done so at Contractor's sole expense. Contractor shall have available on Collection days sufficient back-up vehicles for each type of Collection vehicle used to respond to complaints and emergencies. B. Specifications. All route Collection vehicles will be not older than 2-years and in like -new condition upon initiation of services under this Agreement. Contractor shall operate no vehicles within the City over 10-years in age during the initial ten-year term of this Agreement and no older than 15-years in age during any future extensions of this Agreement. All route Collection vehicles used by Contractor in providing Refuse, Recycling, and Organics Collection services, excluding spares, Roll -off Box Collection vehicles, scout vehicles, supervisor vehicles, Container delivery and other specialty vehicles used on a sporadic basis, shall use exclusively renewable natural gas (RNG). Such vehicles must be registered with the California Department of Motor Vehicles and shall have water -tight bodies designed to prevent leakage, spillage or overflow. At all times during the term of this Agreement, Contractor's Collection vehicles shall comply with Department of Transportation requirements, South Coast Air Quality Management District Requirements and the California Air Resource Board requirements as they are currently in force and as they may be approved for Refuse removal vehicles, as well as other Federal, State and local laws and regulations that may be enacted during the term of this Agreement. February 11, 2020 60 City of Santa Ana - DRAFT 60B-181 C. Vehicle Identification. Contractor's name, local telephone number, and a unique vehicle identification number designed by Contractor for each vehicle shall be prominently displayed on all vehicles, in letters and numbers no less than two and one half (2 1/2) inches high. No advertising shall be permitted other than the name of the Contractor except promotional advertisement of the Recyclable Materials and Organic Materials programs, other programs specific to the City, or information requested by City. All advertisement must be approved by the City. Contractor shall not place City's name and/or any City logos on Contractor vehicles. D. Cleaning and Maintenance 1) Contractor shall maintain all of its properties, vehicles, facilities, and equipment used in providing service under this Agreement in a good, safe, neat, clean and operable condition at all times. 2) Vehicles used in the Collection of Refuse, Recyclable Materials, and Organics shall be painted, thoroughly washed, and thoroughly steam cleaned on a regular basis so as to present a clean appearance. City may inspect vehicles at any time to determine compliance with this Agreement. Contractor shall also make vehicles available to the Orange County Health Department for inspection, at any frequency it requests. Contractor agrees to replace or repair to the City's satisfaction, any vehicle which City determines to be of unsightly appearance, leaking, or in unsatisfactory operating condition. 3) Contractor shall repaint all vehicles used in the Collection of Refuse, Recyclable Materials and Organics at least every five years, and within thirty (30) days' notice from City, if City determines that their appearance warrants painting. 4) Contractor shall inspect each vehicle daily to ensure that all equipment is operating properly. Vehicles which are not operating properly shall be removed from service until repaired and operating properly. Contractor shall perform all scheduled maintenance functions in accordance with the manufacturer's specifications and schedule. Contractor shall keep accurate records of all vehicle maintenance, recorded according to date and mileage and shall make such records available to City upon request. 5) Contractor shall repair, or arrange for the repair of, all of its vehicles and equipment for which repairs are needed because of accident, breakdown or any February 11, 2020 61 City of Santa Ana - DRAFT 60B-182 other cause so as to maintain all equipment in a safe and operable condition. Contractor shall maintain accurate records of repair, which shall include the date and mileage, nature of repair and the verification by signature of a maintenance supervisor that the repair has been properly performed. 6) Contractor shall clean up any leaks or spills from its vehicles per the National Pollutant Discharge Elimination System (NPDES) permit in effect at the time. No fluids shall be washed into storm drains at any time. All NPDES dry-cleaning measures shall be complied with. All Collection Vehicles must be equipped with absorbent for such cleanup efforts. 7) Upon request, Contractor shall furnish City a written inventory of all equipment, including Collection vehicles, used in providing service. The inventory shall list all equipment by manufacturer, ID number, date of acquisition, type, and capacity. E. Operation. Vehicles shall be operated in compliance with the California Vehicle Code, and all applicable safety and local ordinances. Contractor shall not load vehicles in excess of the manufacturer's recommendations or limitations imposed by state or local weight restrictions on vehicles. Contractor equipment used for Refuse, Recycling, and Organics services shall be registered with the California Department of Motor Vehicles. Equipment shall comply with US EPA noise emission regulations, currently codified at 40 CFR Part 205 and other applicable noise control regulations, and shall incorporate noise control features throughout the entire vehicle. Noise levels of equipment used for Collection shall comply with City ordinance and in no event shall the noise level exceed 75 dba when measured at a distance of 25 feet from the vehicle, five feet from the ground. Contractor shall store all equipment in safe and secure locations in accordance with City's applicable zoning regulations. Subject to Section 9.1, Contractor shall be responsible for any damage resulting from or directly attributable to any of its operations, and which it causes to: City's driving surfaces, whether or not paved; associated curbs, gutters and traffic control devices; and other public improvements. F. City Inspection Per Code. City may cause any vehicle used in performance of this Agreement to be inspected and tested at any commercially February 11, 2020 62 City of Santa Ana - DRAFT 60B-183 reasonable time and in such manner as may be appropriate to determine that the vehicle is being maintained in compliance with the provisions of the State Vehicle Code, including, but not limited to, California Vehicle Code Sections 27000(b), 23114, 23115, 42030, 42032, and all Vehicle Code Sections regarding smog equipment requirements. City may direct the removal of any vehicle from service if that vehicle is found to be in nonconformance with applicable codes. No vehicle directed to be removed from service shall be returned to service until it conforms with, and its return to service has been approved by the City. G. Vehicle Inspections. Upon City request, Contractor shall submit the Safety Compliance Report/ Terminal Record Update from its Biennial Inspection of Terminal, or BIT. If Contractor receives a terminal rating below satisfactory, the Contractor is in violation of the Agreement. The Contractor has the time allowed by the Department of California Highway Patrol ("CHP") to cure violations and bring the terminal rating up to satisfactory. If the CHP does not adjust the rating to satisfactory or better within six months, then the Contractor shall be considered in default of the contract and the City may terminate the Agreement as provided in Section 11.3. H. Correction of Defects. Following any inspection, the Executive Director shall have the right to cause Contractor, at its sole cost and expense, to recondition or replace any vehicle or equipment found to be unsafe, unsanitary or unsightly. The Executive Director's determination may be appealed to the City Council, whose decision shall be final. 1. City Informational Displays. Contractor shall equip all vehicles which Collect Solid Waste within the City with informational displays. The City shall advise Contractor as to the messages which should be displayed while vehicles are operating for the City. The City may, at its option, have the messages to be displayed changed once per year at no additional cost. 4.7.4 Containers 4.7.4.1 Contractor -Provided Carts A. Cart Selection, Distribution and Exchanges. Contractor shall provide Customers with new Refuse, Recycling and Organics Carts at the start of service under this Agreement, at no extra charge. February 11, 2020 63 City of Santa Ana - DRAFT 60B-184 In advance of initial new Cart distribution, Contractor shall mail a notice of rates, and provide Customers the opportunity to request service changes. If no response is received by Customer by specified date, Customer will retain the same level of service currently provided as reported by the previous waste hauler. B. Cart Design Requirements. The Carts shall be manufactured by injection or rotational molding and meet the Cart design and performance requirements as specified below. All Carts selected shall be subject to City approval. The City will not permit Carts and Cart lids with inconsistent colors or m poor condition to be used in the City at any time during the term of this Agreement, and may require Contractor to replace such Carts. Contractor shall ensure that all Carts in service during the terms of this Agreement comply with CalRecycle requirements under SB 1383. C. Capacity. References to Cart sizes of 35, 64, or 96 gallons are approximate. Acknowledging the different sizes provided by the various Cart manufacturers, the Carts shall be uniform in appearance and must conform to the following ranges in size: - 30 to 40 gallons, - 60 to 70 gallons, and - 90 to 101 gallons. D. Cart Handles. The Cart handles and handle mounts may be an integrally molded part of the Cart body or molded as part of the lid. The Cart handles will provide comfortable gripping area for pulling or pushing the Cart or lifting the lid. Pinch points are unacceptable. E. Cart Lid. Each Container shall be provided with a lid that continuously overlaps and comes in contact with the Container body or otherwise causes an interface with the Container body that simultaneously: - Prevents the intrusion of rainwater, rodents, birds, and flies; - Prevents the emission of odors; - Enables the free and complete flow of material from the Container during the dump cycle without interference with the material already deposited in the truck body or the truck body itself and its lifting mechanism; February 11, 2020 64 City of Santa Ana - DRAFT 60B-185 • Permits users of the Container to conveniently and easily open and shut the lid throughout the serviceable life of the Container; • The lid handle shall be an integrally molded part of the lid; • The lid (and body) must be of such design and weight that would prevent an empty Container from tilting backward when flipping the lid open; and, • The lid shall be hinged to the Cart body in such a manner so as to enable the lid to be fully opened, free of tension, to a position whereby it may rest against the backside of the Container body. F. Cart Colors. The Refuse, Recycling and Organics Carts or Cart lids will be differentiated by color. The colors shall be colorfast and resistant to fading as a result of weathering or ultraviolet degradation. Cart and Cart lid colors shall be consistent throughout the City, and shall comply with CalRecycle requirements under SB 1383. G. Cart Labeling and Hot Stamping. Labels used on Carts shall be placed on the inside of the Cart lid, and hot stamps shall be on the top of the lid and/or on the body of the Cart. Each Cart shall be hot stamped with the material type (e.g., trash, Recycling, Organics) in English and Spanish. Labels shall include graphic instruction on what materials should and should not be placed in each Cart. Design for both the labels and the hot stamps must be approved by City prior to ordering labels or Carts. City shall approve what information is included on the label and in the hot stamp, as well as approve design and quality. Labels shall be replaced when worn, and when information on the label is in need of updating, but no later than 90 days of request from City. Information on the Carts shall include the telephone number to call for Contractor for Bulky Item pickups and for general Customer service. All Carts shall be labeled in accordance with CalRecycle requirements under SB 1383 throughout the term of this Agreement. H. Cart Performance Requirements. All Carts shall be designed and manufactured to meet the minimum performance requirements described below. I. Cart Load Capacity. Depending on the capacity, the Carts shall have a minimum load capacity as noted below without Container distortion, damage, or reduction in maneuverability or any other functions as required herein. February 11, 2020 65 City of Santa Ana - DRAFT 60B-186 Minimum Load Capacity Cart Size (Gallons) (LBS) 90-101 200 60-70 130 30-40 70 Cart Durability. Carts shall remain durable, and at a minimum, shall meet the following durability requirements to satisfy its intended use and performance, for the term of this Agreement: • Maintain its original shape and appearance; • Be resistant to kicks and blows; • Require no routine maintenance and essentially be maintenance free; • Not warp, crack, rust, discolor, or otherwise deteriorate over time in a manner that will interfere with its intended use; • Resist degradation from ultraviolet radiation; • Be incapable of penetration by biting or clawing of household pets (i.e., dogs and cats); • The bottoms of Cart bodies must remain impervious to any damage, that would interfere with the Cart's intended use after repeated contact with gravel, concrete, asphalt or any other rough and abrasive surface; • All wheel and axle assemblies are to provide continuous maneuverability and mobility as originally designed and intended; and, • Resist degradation by other airborne gases or particulate matter currently present in the ambient air of the City. K. Chemical Resistant. Carts shall resist damage from common household or Residential products and chemicals. Carts, also, shall resist damage from human and animal urine and feces. February 11, 2020 66 City of Santa Ana - DRAFT 60B-187 L. Stability and Maneuverability. The Carts shall be stable and self - balancing in the upright position, when either empty or loaded to its maximum design capacity with an evenly distributed load, and with the lid in either a closed or open position. The Carts shall be capable of maintaining an upright position in sustained or gusting winds of up to 25 miles per hour as applied from any direction. The Carts shall be capable of being easily moved and maneuvered, with an evenly distributed load equal in weight to its maximum design capacity on a level, sloped or stepped surface. M. Lid Performance. Cart lid assemblies shall meet the following minimum requirements: • Prevent damage to the Cart body, the lid itself or any component parts through repeated opening and closing of the lid by residents or in the dumping process as intended; • Remain closed in winds up to 25 miles per hour from any direction. All lid hinges must remain fully functional and continually hold the lid in the original designed and intended positions when either opened or closed or any position between the two extremes; and, • Lid shall be designed and constructed such that it prevents physical injury to the user while opening and closing the Container. 4.7.4.2 Cart Reparability or Replacement Contractor shall be responsible for Cart repair and maintenance, and replacing lost, stolen or damaged Carts within two (2) business days of notification (excluding Saturday, Sunday and holidays listed in Section 4.7.1), at no additional charge to the Customer or to City, unless Contractor can demonstrate to the Executive Director that the damage or loss was due exclusively to the Customer's intentional or wanton destruction. Executive Director shall make the final determination. All repairs must restore the Cart to its full functionality. If City permits a Cart replacement charge to be assessed against Customer, Contractor may charge the Customer the Cart Replacement Fee in the approved rate schedule. Unsightly/worn-out/broken Carts shall be replaced by Contractor upon Customer request at no additional cost to Customer. February 11, 2020 67 City of Santa Ana - DRAFT 60B-188 Customers are responsible for the cleanliness and sanitation of Carts. Contractor shall steam clean Carts upon request of Customers at the rates shown in the approved rate schedule. All Carts in service for the duration of this Agreement shall comply with color and labeling requirements specified by CalRecycle under SB 1383. 4.7.4.3 Bins A. Cleaning and Maintenance. Contractor shall provide Customers with Bins required during the term of this Agreement and maintain Containers in safe working condition. The size of Contractor -provided Bins shall be determined by mutual agreement of Customer and Contractor, and shall be subject to City approval. All Bins in use shall be constructed of heavy metal, or other suitable, durable material, and shall be watertight and well painted. Wheels, forklift slots, and other apparatuses, which were designed for movement, loading, or unloading of the Bin shall be maintained in good repair. Upon Customer or City request, or if required to maintain the Containers in a clean condition, Contractor shall clean Customer Bins at the rates shown in the approved rate schedule. Contractor shall perform cleaning, repainting, or replacement of Bins as necessary to prevent a nuisance caused by odors or vector harborage. When a Bin is removed for cleaning, Contractor shall replace the Bin, either temporarily or as a change -out, with another Container. B. Bin Identification and Color. Each Bin placed in City by Contractor shall have the name of Contractor and phone number in letters not less than three (3) inches high on the exterior of the Bin so as to be visible when the Bin is placed for use. Bins shall be labeled to include bilingual (English and Spanish) and graphic instruction on what materials should and should not be placed in each Bin. Contractor shall repaint Bins upon City's request if the City deems it necessary to maintain a neat appearance. All Refuse Bins shall be painted a uniform color of, and all Recycling and Organics Bins shall be painted a different, uniform color. All Bins in service for the duration of this Agreement shall comply with color and labeling requirements specified by CalRecycle under SB 1383. C. Bin Exchanges. Contractor may charge the Bin exchange fee included in February 11, 2020 68 City of Santa Ana - DRAFT 60B-189 the approved rate schedule for each of two or more Bin exchanges in a twelve (12) month period, due to Bin size change requested by a Customer. 4.7.4.4 Roll -off Boxes Contractor shall provide sufficient Roll -off Boxes to meet Customer demand throughout the Term of the Agreement, and will keep all Roll -off Boxes clean, free from graffiti, equipped with reflectors, and with the name and phone number of Contractor in letters not less than three (3) inches high on the exterior of the Roll -off Box so as to be visible when the Roll -off Box is placed for use. Contractor shall properly cover all open Roll -off Boxes during transport as required by the State Vehicle Code. 4.7.4.5 Graffiti Removal Contractor shall remove graffiti from any Cart or Bin within two (2) business days (excluding Saturday, Sunday and holidays listed in Section 4.7.1) of request by City or Customer at no additional charge. Contractor shall remove graffiti from any Roll -Off Box within five (5) business days of request by City or Customer at no additional charge. Contractor is required to proactively look for graffiti when Collecting Containers, with all graffiti removed from Containers as stated above after any Collection without notification. Contractor shall ensure that all Collection vehicles are equipped with paint, which is the same color as the Containers serviced within the City, for minor graffiti removal observed by drivers. 4.7.4.6 Overflowing Containers Multi -Family Premises with Refuse Bin Service, and Commercial Customers that regularly produce more Refuse than their current level of service can accommodate may have their service level increased in accordance with the following procedure: First Incident in Six Month Period - If more material is placed for Collection than fits in a Container Contractor shall photograph the overflowing Container, Collect the Solid Waste, and send to the Customer (at both the service and billing addresses) the picture and a letter instructing that the next instance of an overflowing Container may result in a charge. Second Incident in Six Month Period - Upon the second event of an overfilled Container in a six-month period, Contractor shall photograph the overflowing February 11, 2020 69 City of Santa Ana - DRAFT 60B-190 Container, Collect the Solid Waste, and send to the Customer the picture and a letter instructing that a third incident in that same six month period may result in an increase in the level of service. If the Container overflowed sufficiently to require the driver to leave the Collection vehicle to clean around the Container, Contractor may charge the Container Overage Cleanup fee in the approved rate schedule. Third Incident in Six Month Period - Upon the third event of an overfilled Container in a six-month period, Contractor shall photograph the overflowing Container, Collect the Solid Waste, and send to the Customer the picture and a letter notifying Customer of an increase in its service level. If the Container overflowed sufficiently to require the driver to leave the Collection vehicle to clean around the Container, Contractor may charge the Container Overage Cleanup fee in the approved rate schedule. In the event that this Section gives rise to a dispute between Contractor and a Customer, City shall settle the dispute in accordance with Section 5.2.3. 4.7.4.7 Litter Abatement A. Minimization of Spills. Contractor shall use due care to prevent Solid Waste or fluids from leaking, being spilled and/or scattered during the Collection or transportation process. If any Solid Waste or fluids leak or are spilled during Collection, Contractor shall promptly clean up all such materials. Each Collection vehicle shall carry a broom and shovel at all times for this purpose. Contractor shall not transfer loads from one vehicle to another on any public street, unless it is necessary to do so because of mechanical failure, accidental damage to a vehicle, or a pre -approved method of Solid Waste transfer between vehicles, without prior written approval by City. B. Clean Up. Contractor shall clean up litter in the immediate vicinity of any Solid Waste storage area if Contractor has caused the litter during the Collection process. Customer shall be responsible for cleanup of litter in Solid Waste storage area not caused by Contractor. Contractor shall identify instances of repeated spillage not caused by it directly with the Waste Generator responsible and will report such instances to City. Contractor may address habitual offenders in accordance with Section 4.7.4.6. February 11, 2020 70 City of Santa Ana - DRAFT 60B-191 C. Covering of Loads. Contractor shall properly cover all open debris boxes during transport to the Disposal Site. 4.7.4.8 Collection of Former Contractor's Containers If any Solid Waste enterprise providing Solid Waste Handling Services to Customers prior to the start of Collection services under this Agreement does not remove the Containers it had in use prior to the start of Collection services under this Agreement, Contractor shall Collect and recycle/dispose of all such Containers at no additional charge to City or Customers. 4.7.5 Personnel A. Qualified Drivers. Contractor shall furnish such qualified drivers, mechanical, supervisory, clerical, management and other personnel as may be necessary to provide the services required by this Agreement in a satisfactory, safe, economical and efficient manner. All drivers shall be trained and qualified in the operation of vehicles they operate and must possess a valid license, of the appropriate class, issued by the California Department of Motor Vehicles. B. Hazardous Material Employee Training. Contractor also agrees to establish and implement an educational program which will train Contractor's employees in the identification of Hazardous Material. Contractor's employees shall not knowingly place such Hazardous Material in the Collection vehicles, nor knowingly dispose of such Hazardous Materials at the Processing Facility or Disposal Site. C. Customer Courtesy. Contractor shall train its employees in Customer courtesy, shall prohibit the use of loud or profane language, and shall instruct Collection crews to perform the work quietly. Contractor shall use its best efforts to assure that all employees present a neat appearance and conduct themselves in a courteous manner. If any employee is found to be discourteous or not to be performing services in the manner required by this Agreement, Contractor shall take all necessary corrective measures including, but not limited to, transfer, discipline or termination. If City has notified Contractor of a complaint related to discourteous or improper behavior, Contractor will consider reassigning the employee to duties not entailing contact with the public while Contractor is pursuing its investigation and corrective action process. February 11, 2020 71 City of Santa Ana - DRAFT 60B-192 D. Training. Contractor shall provide suitable operations, health and safety training on an ongoing basis for all of its drivers and other employees who use or operate equipment or who are otherwise directly involved in Collection or other related operations. E. Unauthorized Material Removal. Contractor shall dismiss or discipline employees who remove documents or any other material from Containers, other than specifically for the purposes of Disposal and Diversion as described in this Agreement. 4.7.5.1 Employment of Former Contractor Employees Contractor shall interview all former employees of the previous hauler to be displaced by the transition of Solid Waste Collection under this Agreement. Contractor shall make offers of employment to all such applicants qualified for positions with Contractor. 4.7.5.2 Job Fair Contractor shall hold, at a minimum, one job fair in the City prior to the start of services under this Agreement. The purpose of the job fair is to provide City residents with the opportunity to apply for positions with the Contractor. Contractor shall make offers of employment to all such applicants qualified for available positions with Contractor. 4.7.5.3 Identification Required Contractor shall provide its employees, companies and Subcontractors with identification for all individuals who may make personal contact with residents or businesses in City. Contractor shall provide a list of current employees, companies, and Subcontractors to City upon request. The City reserves the right to perform a security and identification check through the Orange County Sheriff's Department upon Contractor and all its present and future employees, in accordance with accepted procedures established by the City, or for probable cause. 4.7.5.4 Fees and Gratuities Contractor shall not, nor shall it permit any agent, employee, or Subcontractors employed by it, to request, solicit, demand, or accept, either directly or indirectly, any February 11, 2020 72 City of Santa Ana - DRAFT 60B-193 compensation or gratuity for services authorized to be performed under this Agreement except as described in this Agreement, in accordance with Exhibit 2 as updated and approved by City throughout the Term of the Agreement. 4.7.6 Non -Discrimination Contractor shall not discriminate in the provision of service or the employment of Persons engaged in performance of this Agreement on account of race, color, religion, sex, age, physical handicap or medical condition in violation of any applicable federal or state law. 4.7.7 Coordination with Street Sweeping Services Contractor shall coordinate with the Executive Director to ensure that Solid Waste Collection is compatible with the City's street sweeping operations. Contractor will be required to complete their designated routes each day so as not to interfere with the City's street sweeping operations. 4.7.8 Change in Collection Schedule Contractor shall notify City forty-five (45) days prior to, and Customers not later than thirty (30) days prior to, any change in Collection operations which results in a change in the day on which Solid Waste Collection occurs. Contractor will not permit any Customer to go more than seven (7) days without service in connection with a Collection schedule change. City's approval of any change in Collection is required prior to such change, and such approval will not be withheld unreasonably. Any changes in the route map or Collection schedule shall require the prior approval of the City. City may require reasonable changes in the route map or Collection schedule, to improve service, to resolve complaints or for other reasons. Prior to the change of a route schedule, Contractor shall provide written notice of the change to affected Customers ninety (90) days in advance. 4.7.9 Report of Accumulation of Solid Waste; Unauthorized Dumping Contractor shall direct its drivers to note (1) the addresses of any Premises at which they observe that Solid Waste is accumulating and is not being delivered for Collection; and (2) the address, or other location description, at which Solid Waste has been February 11, 2020 73 City of Santa Ana - DRAFT 60B-194 dumped in an apparently unauthorized manner. Contractor shall deliver the address or description to City within five (5) working days of such observation. 4.8 Contingency Plan Contractor shall submit to City on or before the start of Collection services under this Agreement, a written contingency plan demonstrating Contractor's arrangements to provide vehicles and personnel and to maintain uninterrupted service during breakdowns, and in case of natural disaster or other emergency including labor disputes and the events described in Section 11.5. 4.9 Transportation of Solid Waste The Contractor shall transport all Solid Waste Collected under Sections 4.2, 4.3, 4.4, and 4.5 to permitted Solid Waste facilities. Contractor agrees to make all reasonable efforts to separate Recyclable and Organic Materials from Refuse for Diversion from landfill Disposal. The Contractor shall maintain accurate records of the quantities of Solid Waste transported to permitted Solid Waste facilities and will cooperate with the City in any audits or investigations of such quantities. The Contractor shall cooperate with the operator of any permitted Solid Waste facility with regard to operations therein, including, for example, complying with directions from the operator to unload Collection vehicles in designated areas, accommodating to maintenance operations and construction of new facilities, cooperating with its Hazardous Material exclusion program, and so forth. 4.10 Disposal of Refuse a) Contractor shall be required to dispose of any and all Solid Waste which is not Recycled or Diverted by means of composting, mulching and/or transforming pursuant to the terms of this Agreement, at a legally authorized Disposal Site(s) as designated by City. Unless and until the City otherwise obtains ownership of the Solid Waste stream, the designated Disposal Site shall be the Orange County Disposal System. If Contractor is directed to dispose of said Solid Waste at a location other than the Orange County Disposal System, both parties agree to meet and confer regarding any potential rate adjustments which may be February 11, 2020 74 City of Santa Ana - DRAFT 60B-195 necessitated thereby. Should Disposal Sites become unavailable in Orange County at any time during the term of this Agreement, both parties agree to meet and confer regarding any potential rate adjustments which may be necessitated thereby. Contractor hereby agrees and guarantees to the City that the City will be indemnified for CERCLA liability for any Solid Waste Collected by Contractor in the City. Contractor will act as the contracting body and lead agency with the MRF and composting facility with respect to this Agreement and shall be responsible for, and ensure that both facilities act so as to meet the requirements of both this Agreement, AB 939 and SB 1383. 4.11 Flow Control Option City shall have the absolute ability to choose the location for the delivery and/or Disposal of all Solid Waste (including residue Refuse from Recyclables, Organic Materials, and Construction and Demolition Debris Collected pursuant to this Agreement (hereinafter City's "Flow Control Option'). Contractor expressly consents to City's ability to direct the location for disposal of Solid Waste hereunder, and waives any and all rights to challenge City's ability to do so, including without limitation any rights under the Commerce Clause of the United States Constitution. As of the effective date, City shall be deemed to have exercised its Flow Control Option so as to require delivery of all Solid Waste Collected hereunder to the Orange County Disposal System in a manner consistent with its obligations under the County Agreement (Exhibit 7) (including, without limitation, its obligations related to Solid Waste that is delivered to a processing/transfer facility prior to being delivered to a landfill for disposal), and Contractor has agreed to handle all Solid Waste Collected hereunder in a manner consistent with City's exercise of its Flow Control Option as noted above. At any time during the Term of this Agreement the Executive Director may notify Contractor in writing that City no long desires to exercise its Flow Control Option. In the event City so notifies Contractor of its desire to cease exercising its Flow Control Option, Contractor shall have the absolute discretion to utilize any Disposal facility, Transfer Station, Recycling facility, Material Recovery Facility, landfill, or other facility of its choosing to retain, Recycle, process, and dispose of Solid Waste generated within the City, provided the use of such facility by Contractor enables it to meet all other requirements of this Agreement. February 11, 2020 75 City of Santa Ana - DRAFT 60B-196 4.12 County Agreement Contractor expressly acknowledges its awareness and understanding of the County Agreement which has been adopted and entered into by the City. Moreover, Contractor acknowledges that it has had an opportunity to review the County Agreement, and is aware of the provisions thereof that require all Solid Waste Collected in the City limits to be disposed of in the Orange County Disposal System. Contractor further acknowledges that the County of Orange is an intended third party beneficiary of Contractor's obligations relating in any way to the disposal of Solid Waste pursuant to this Agreement and the County Agreement. Contractor hereby adopts as its obligations hereunder such provisions of the County Agreement that require action or inaction by it as City's Solid Waste franchisee. Contractor represents and warrants that it can and will perform its duties in connection with this Agreement in such a manner as to ensure that the City does not breach the terms of the County Agreement as a result of Contractor's actions or inactions. In the event City advises Contractor in writing that the County Agreement has been terminated, or that it no longer wishes to exercise its Flow Control Option in a manner consistent with the County Agreement, then Contractor's obligations pursuant to this paragraph will be terminated. 4.13 Status of Disposal Site Any Disposal Site chosen and utilized by Contractor, shall have been issued all permits from federal, state, regional, county and City agencies necessary for it to operate as a Class III Sanitary Landfill. 4.14 Solid Waste Facility Capacity Guarantee Contractor shall provide City with guaranteed capacity for the following Solid Waste facilities for the Term of this Agreement: [INCLUDE LIST FROM COMPANY'S PROPOSAL] 4.15 Commingling of Refuse Collection Routes Contractor shall not commingle City Refuse Collection routes with other city or county routes. If this is not feasible, upon approval by the City, Contractor may commingle routes, but must submit to City a detailed monthly report setting forth the breakdown of tonnage Collected from the commingled routes within thirty (30) days after the end February 11, 2020 76 City of Santa Ana - DRAFT 60B-197 of each month. Contractor shall have the methodology used to segregate the loads between jurisdictions approved in advance by the City. 4.16 Route Audit Once during the first year or at City request (but not more than once every three years), Contractor shall conduct an audit of its Collection routes in the City. City may use information from the audit to develop a request for proposals for a new service provider. City may instruct Contractor when to conduct the audit in order for the results to be available for use in preparation of a request for proposals or for other City uses. City may also instruct Contractor to conduct an audit at a time that would produce the most accurate Customer service information for a new service provider to use in establishing service with Customers. In setting these audit dates, City will establish due dates for Contractor providing routing and account information, and later, the report, to City. The route audit, at minimum, shall consist of an independent physical observation by Person(s) other than the route driver of each Customer in City. This Person(s) is to be approved in advance by City. The route audit information shall include, as a minimum, the following information for each account: For Residential Curbside Service Unit and Multi -Family Customers with Cart Service: • Route Number; • Truck Number; • Number and size of Carts by waste stream (Refuse, Recycling, Organics) • Cart condition; For Bin and Roll -Off Customers: • Route Number; • Truck Number; • Account Name; • Account Number; • Account Service Address; • Account Type (Residential, Commercial, Roll -Off); • Service Level per Contractor Billing system (Quantity, Size, Frequency, Waste Stream); February 11, 2020 77 City of Santa Ana - DRAFT 60B-198 • Observed Containers (Quantity, Size, Frequency, Waste Stream). • Container condition; • Proper signage; and, • Graffiti. Within thirty (30) days after the completion of the route audit, Contractor shall submit to City a report summarizing the results of the audit. This summary shall include: • Identification of the routes; • Route map; • Truck numbers; • Number of accounts, by route and in total (Residential, Commercial and Roll -off); • Confirmation that all Refuse routes are dedicated exclusively to City Customers; • Number and type of exceptions observed; • Total monthly service charge (Residential, Commercial and Roll -off Box), pre -audit; • Total monthly service charge (Residential, Commercial and Roll -off), post -audit (subsequent to corrections of identified exceptions); and, The report shall include a description of the procedures followed to complete the route audit. This description shall include the names and titles of those supervising the route audits and the name and titles of those performing the observations. The report shall also include a description of the changes and Contractor's plans to resolve the exceptions. The results of the audit, and supporting back-up data, shall be available for review by City or its representative. 4.17 Service Exceptions; Hazardous Material Notifications A. Failure to Collect. When Solid Waste is not Collected from any Solid Waste service recipient, Contractor shall notify its service recipient in writing, at the time Collection is not made, through the use of a "tag" or otherwise, of the reasons why the Collection was not made. B. Hazardous Material Inspection and Reporting. Contractor reserves the right to reject Solid Waste observed to be contaminated with Hazardous Material and the right not to Collect Hazardous Material put out with Solid Waste. Contractor shall notify all agencies with jurisdiction, if appropriate, including the California Department of Toxic Substances Control and Local Emergency Response Providers and the National February 11, 2020 78 City of Santa Ana - DRAFT 60B-199 Response Center of reportable quantities of Hazardous Material, found or observed in Solid Waste anywhere within the City. In addition to other required notifications, if Contractor observes any substances which it or its employees reasonably believe or suspect to contain Hazardous Materials unlawfully Disposed of or released on any City property, including storm drains, streets or other public rights of way, Contractor will immediately notify the Executive Director or the Executive Director's designee. Contractor shall implement and maintain a training program that will assist its employees in identifying and properly disposing of any Hazardous Material that may come into their possession. C. Hazardous Material Diversion Records. Contractor shall maintain records showing the types and quantities, if any, of Hazardous Material found in Solid Waste and which was inadvertently Collected from service recipients within the City, but diverted from landfilling. 4.18 Contractor/City Meetings Contractor and City will meet monthly for the term of this Agreement, to discuss concerns and comments. City reserves the right to increase or reduce the number of Contractor/City Meetings at any time during the term of this Agreement. February 11, 2020 79 City of Santa Ana - DRAFT 60B-200 ARTICLE 5 OTHER SERVICES 5.1 Services and Customer Billing 5.1.1 Residential Curbside Service Unit Billing Contractor shall establish rates for its provision of services for Residential Curbside Service Unit Customers pursuant to this Agreement. Such rates shall in no case exceed those set forth in the approved rate schedule. The City shall collect on behalf of the Contractor the rates established by the Contractor for said services. Rates collected and paid to the Contractor shall be based on the total number of Residential Curbside Service Units billed by the City for curbside service during that month, less City fees described in Article 3. City shall make billing records available to Contractor upon reasonable notice for the purpose of auditing such records. Remittance to Contractor of payments collected by the City for curbside service shall be on a monthly basis. 5.1.2 Senior and Mobile Home Low Generator Rate Seniors 65 years of age and older and residents living in mobile home communities, both of which must live in households with no more than two persons, are low trash generators, and be the person named on the Municipal Utility Services account receiving Cart Service shall be provided one (1) 35-gallon Cart for Refuse, one (1) 35- gallon Cart for Recycling, and one (1) 35-gallon Cart for Organics for the monthly rate included in the approved rate schedule. Customers receiving the senior and mobile home low generator rate may not request additional Carts. 5.1.3 Multi -Family and Commercial Cart Service, and Multi -Family and Commercial/Industrial Bin Services Billing Contractor shall be responsible for billing for Commercial Cart, and Multi -Family and Commercial/Industrial Bin services and other special charges as permitted in the approved rate schedule on a monthly basis. For Multi -Family Cart Customers whose residences are governed by a homeowners February 11, 2020 80 City of Santa Ana - DRAFT 60B-201 association, Contractor may enter into an agreement with the homeowners association with the approval of the Executive Director, whereby the homeowners association shall be billed directly by Contractor, and remit payments for all residents within the association directly to Contractor. Contractor is responsible for customer billing and remittance to City of the City Franchise Fee and other City fees for homeowners associations direct -billed by the Contractor. Bills must be itemized by Container size, frequency of service, and period billed for. 5.1.4 Roll -Off Billing Contractor shall bill for Roll -off services and other special charges as permitted in the approved rate schedule on a monthly basis. Bills must be itemized by Container size, frequency of service, tons, per ton fees, and period billed for. 5.1.5 Special Bin Services and Customer Service Requirements Contractor may enter into agreements with Bin Service Customers for special Collection services different from, in addition to, or greater than the minimum collection services required in this Agreement. Minimum Container capacity requirements are described in Section 16-37 of the City of Santa Ands Municipal Code. 5.1.6 Other Optional Services Contractor may offer on a subscription basis other optional services for which a rate is not provided in the approved rate schedule, at a rate negotiated between Contractor and a Residential Curbside Service Unit Customer or other Customers, subject to approval by the Executive Director. Contractor may not charge a fee for moving its vehicles in reverse for the purposes of emptying a Bin. Contractor must notify Executive Director of service type, and negotiated rate prior to initiating service. 5.1.7 Review of Billings Contractor shall review its Billings to Customers under Sections 5.13 and 5.1.4. The purpose of the review is to determine that the amount which Contractor is billing each Customer is correct in terms of the level of service being provided to such Customer by Contractor. Contractor shall review Customer accounts annually, and submit to City a February 11, 2020 81 City of Santa Ana - DRAFT 60B-202 written report of that review annually on the anniversary of the Effective Day of this Agreement. 5.1.8 Suspension of Service Due to Non -Payment Contractor may charge a delinquency fee of not more than ten (10%) percent per month on accounts billed by Contractor which have not remitted required payments within thirty (30) days after the date of billing. Should payment not be received within forty- five (45) days of billing, Contractor shall notify said Customer on forms approved by the City that service may be discontinued fifteen (15) days from the date of the notice if payment is not made before than time. Upon payment by the Customer of all amounts due, including delinquent fees, Contractor shall resume collection on Contractors next regularly scheduled collection day. Contractor may charge a re -start fee in accordance with the approved rate schedule for re-establishing service that was discontinued due to non-payment. At City's request, Contractor shall provide the City with a list indicating the Customers which have had service ceased due to nonpayment. 5.2 Customer Service 5.2.1 Local Office Contractor shall maintain an office within the City of Santa Ana. Office hours shall be, at a minimum, from 8:00 A.M. to 5:00 P.M., Monday through Friday and from 8:00 A.M. to noon on Saturdays, exclusive of holidays. A responsible and qualified representative of Contractor shall be available during office hours for communication with the public at the local office, and to receive payments from Customers. Normal office hour telephone numbers shall be a toll free call. Contractor's telephone system shall be adequate to handle the volume of calls typically experienced on the busiest days. Contractor shall also maintain a toll free telephone number for use during other than normal business hours. Contractor shall have a representative, answering or message providing/receiving (voice -mail) service available at said after-hours telephone number. After -hour calls shall be responded to on the next business day (excluding Saturday, Sunday and holidays listed in Section 4.7.1). Contractor shall have the capability of responding to the public in English and Spanish during office hours. February 11, 2020 82 City of Santa Ana - DRAFT 60B-203 5.2.2 Complaint Documentation All service complaints shall be directed to Contractor. Daily logs of complaints shall be retained for a minimum of twenty-four (24) months and shall be available to City at all times upon request, and included in Contractor's monthly reports as described in Section 8.3.2. Contractor shall log all complaints received by telephone and said log shall include the date and time the complaint was received, name, address and telephone number of caller, description of complaint, employee recording complaint and the action taken by Contractor to respond to and remedy complaint. Missed pickups shall be included in this log. All Customer complaints and inquiries shall be date -stamped when received and shall be initially responded to within one (1) business day (excluding Saturday, Sunday and holidays listed in Section 4.7.1) of receipt. Contractor shall log action taken by Contractor to respond to and remedy the complaint. All Customer service records and logs kept by Contractor shall be available to City upon request and at no cost to City. City shall, at any time during regular Contractor business hours, have access to Contractor's Customer service department for purposes that may include monitoring the quality of Customer service or researching Customer complaints. 5.2.3 Resolution of Customer Complaints Disputes between Contractor and its Customers regarding the services provided in accordance with this Agreement may be resolved by the City. The City's decision shall be final and binding. Should Contractor and Customers not be able to establish a mutually acceptable fee to be charged for special hauling services, the matter shall also be determined by the City, and the City's decision shall be final. Intervention by the City is not a condition precedent to any rights or remedies third parties might otherwise have in any dispute with Contractor. Nothing in this section is intended to affect the remedies of third parties against Contractor. To the extent that remedies are warranted through this Agreement, this section shall apply. February 11, 2020 83 City of Santa Ana - DRAFT 60B-204 5.2.4 City Liaison The Contractor shall designate a person to serve as agent and liaison between the Contractor and the City and shall maintain a telephone and a means for contact at all times including during periods of strike or other emergencies. Contractor shall not change this designation without prior approval of the City, excluding cases of termination of the employee. City may request that Contractor change City Liaison, and shall have the right to approve the City Liaison. The Contractor's City Liaison shall meet with the City as necessary to effectuate the purposes of the Agreement. 5.2.5 Route Supervisor Contractor shall designate in writing a route supervisor that shall be assigned exclusively to the City, and who shall be responsible for working with City's Executive Director to resolve Customer service related complaints. Route supervisor shall be accessible via cell phone or radio in the field at all times. City shall be notified in advance of any change in Route Supervisor and shall have the right of approval. City may request that Contractor change Route Supervisor. 5.3 Education and Public Awareness 5.3.1 General Contractor acknowledges and agrees that education and public awareness are critical, key and essential elements of any efforts to achieve AB 939 requirements. Accordingly, Contractor agrees to take direction from City to exploit opportunities to expand public and Customer knowledge concerning needs and methods to reduce, reuse and recycle Solid Waste and to cooperate fully with City in this regard. Contractor shall maintain its own program of providing information relevant to billing and Solid Waste services, issues and needs with its bills. All public education materials shall be approved in advance by City, and produced in English, Spanish and Vietnamese. Additional languages may be required during the Term of this Agreement. City may request Contractor to perform mailing services for Customers direct -billed by Contractor, and if so able, provide not less than thirty (30) days' notice to Contractor prior to the mailing date of any proposed mailing to permit Contractor to make appropriate arrangements for inclusion of City's materials. City will provide Contractor February 11, 2020 84 City of Santa Ana - DRAFT 60B-205 the mailers at least fifteen (15) days prior to the mailing date. Contractor shall be responsible for all costs associated with the printing and distribution of mailers. 5.3.2 AB 341, AB 1826, and SB 1383 Implementation Plan Contractor shall ensure the City's compliance with AB 341, AB 1826, and SB 1383 by initiating the planned tasks, procedures, proposed staffing assignments, and schedules for AB 341, AB 1826, and SB 1383 included in Sections 4.3.5.1 and 4.3.6.1 and more fully documented in the implementation plan included in Contractor's proposal to the City. The implementation plan includes a timeline for conducting on -site compliance audits to all AB 341, AB 1826, and SB 1383 non -compliant Commercial and Multi -family Customers; a proposal template as described in Section 4.3.5.1 and 4.3.6.1; written protocols for conducting on -site compliance audits and documenting internal compliance programs; proposed staffing assignments for implementing compliance audits at Commercial and Multi -family non -compliant Customers; specifications of the proposed internal Collection receptacle for distribution during the AB 1826/SB 1383 outreach; an education and outreach plan for a SB 1383 Residential Curbside Unit Organics program including the use of any strategic marketing or social media; an operations plan for delivering new Residential Curbside Unit Organics carts, re- stickering or augmenting existing Residential Curbside Unit Carts; a plan for providing in -home kitchen pails to Residential Curbside Unit Customers who request them (if proposed); a plan for community workshops to educate Customers about the Residential Curbside Unit Organics program; a plan for door-to-door Residential Curbside Unit Organics outreach for neighborhoods (if any); a plan for conducting route reviews and/or waste characterization studies to assess compliance with SB 1383 monitoring requirements; a plan for notifying Customers of unacceptable levels of contamination and a template hang -tag; proposed drafts of written `welcome letters' and other outreach materials to Residential, Multi -family, and Commercial Customers to notify them of the transition and the new program offerings; a plan and timeline for how the Contractor will implement Multi -Family Organics Recycling programs at all Multi -Family Customers as required by SB 1383; templates for compliance reporting documents; etc. It is the responsibility of the Contractor to develop an implementation plan for SB 1383 based on the final approved regulatory requirements. Within 30 days of receiving the written implementation plan, the City will review the plan and provide further direction to the Contractor to ensure the plan is satisfactory in complying with AB 341, AB 1826, and SB 1383. The Contractor shall have 30 days to incorporate the February 11, 2020 85 City of Santa Ana - DRAFT 60B-206 requests of the City into the plan. 5.3.3 Implementation and On -going Education Requirements Contractor will provide a minimum of the following public education items to be developed at Contractor's expense and distributed as indicated below: • Initial Mailing - Contractor will prepare and mail an initial mailing to Customers explaining the transition from the existing program to the new program. The mailing will describe program changes, route changes, dates of program implementation, and other necessary information. • Workshops - Contractor will conduct a minimum of five public workshops describing program changes, route changes, dates of program implementation, and other necessary information. • Instructional Packet Accompanying Contractor -Provided Containers - An information packet shall be attached to each set of Carts distributed to a Customer. At a minimum, packet should describe available services, including how to place Carts for Collection, which materials should be placed in each Cart, Collection holidays, and a Customer service phone number. • Cart Instruction Markings - Contractor will place stickers on, or hot stamp, Recyclable Materials and Organics Carts to demonstrate to Customers which materials are and are not acceptable for placement in each Cart. Stickers shall be replaced when materials change or as labels become worn. Markings shall be written in both English and Spanish. Additionally, all Carts shall be labeled in accordance with CalRecycle requirements under SB 1383 throughout the term of this Agreement. • How -To Brochure - Contractor will prepare and distribute a brochure packet to new Customers when they start service. Packet will contain updated information on how to use the Contractor -provided Containers, when, where and how to place Solid Waste for Collection, and who to contact with service or billing questions. • Annual Brochures/Mailings - Not less than once per year during each Rate Year, Contractor shall prepare and distribute to each Customer a mailing to update Customers regarding program basics, program changes, holiday schedules and February 11, 2020 86 City of Santa Ana - DRAFT 60B-207 other service -related information. Separate brochures shall be developed for Residential, Multi -family, and Commercial Customers, reflecting the different services provided to each group. Mailings should promote and explain: all Solid Waste programs offered by City and Contractor (such as Recycling, Organics, Holiday Tree and Bulky Item Collections) describe in detail; the environmental, regulatory, and other benefits of participating in Recycling; how to properly dispose of Household Hazardous Material such as syringes, paint, etc.; Collection schedules, including holiday schedules; Customers service numbers; State -mandated program requirements; and the procedures to begin and terminate services. This brochure shall be at least two (2) pages, and printed in full color in English, Spanish and Vietnamese. Contractor is responsible for all associated costs. • Billing Inserts - Upon request by the City, Contractor shall include information developed by the City, or developed by Contractor at request of City, with invoices for Customers direct -billed by Contractor. • Santa Ana Green Quarterly Newsletter - Not less than four times per year during each Rate Year, Contractor shall be responsible for twenty-five percent (25%) of all costs incurred by City for the production and mailing of the City's quarterly newsletter. The City reserves the right to direct the production of the quarterly newsletter to a contractor of the City's choosing. The Contractor shall be required to coordinate distribution via U.S. Mail of the quarterly newsletter with a local mailing house, including furnishing Residential Curbside Service Unit, and Multi -Family Premises Customers' mailing addresses. • Corrective Action Notice - For use in instances where the Customer sets out inappropriate materials. Recycling Coordinator - To achieve a high level of Recycling public education and awareness, the Contractor shall dedicate one (1) or more full-time Recycling Coordinators to the City to complete outreach to Residential, Multi -family and Commercial customers, and develop and implement all public education and outreach activities required under the Agreement. The Recycling Coordinator shall conduct outreach, promote waste reduction, recycling, diversion programs, and provide technical assistance to Multi -family and Commercial Customers. February 11, 2020 87 City of Santa Ana - DRAFT 60B-208 • The Recycling Coordinator shall work exclusively on the City programs and services and shall not have other, non -City responsibilities or other City responsibilities not related to Recycling Coordinator responsibilities in the City. • Contractor shall provide a fully trained and experienced Recycling Coordinator on or before the start of services under this Agreement. In the event of resignation of a Coordinator, Contractor shall have a maximum of ninety (90) calendar days to replace the Coordinator. Contractor shall notify City, in writing, of the name, education, background and experience, including a resume, and a list of three (3) references for each Coordinator prior to commencing operations and whenever there is a change in the staffing of the positions. • Upon City request, Contractor shall designate a different Coordinator if the City is dissatisfied with the performance of the designated Coordinator. • The Contractor shall allow the City a reasonable opportunity to review, request modifications to, and approve all materials including, but not limited to: print, radio, television, or internet media before publication, distribution, and/or release. The Recycling Coordinators shall also work cooperatively with a City -selected outreach and education consultant. • Technical Assistance - Contractor is responsible for providing technical assistance to Customers to promote participation in the diversion programs included in this Agreement, and future regulatory requirements. Contractor may utilize the services of a consultant to provide these services upon approval by the City using the procurement protocols set forth in Section 4.4.7. • Web Site Page - Contractor shall dedicate one page of a Contractor web site to City services, including, at a minimum, listing contact names and numbers for Customer Service and information on Bulky Item Collection and other service -related information. The Contractor shall assist the City in establishing a link to this web page from the City's web site. The web site page shall host Recycling- and sold waste -related content as directed by the City. February 11, 2020 88 City of Santa Ana - DRAFT 60B-209 5.4 • Integrated Waste Management Video - Contractor shall cooperate in the production of a video for use by the City with an approximate length of three (3) minutes describing the SB 1383-mandated Residential Curbside Organics program as well as Residential Curbside Recycling procedures to reduce contamination. All brochures, mailings, and other educational materials are to be approved by the City in advance of distribution, and shall bear the City seal, unless otherwise approved by the City. 5.3.4 Community Events At the direction of City, Contractor shall participate in and promote Recycling and other Diversion techniques at a minimum of four (4) community events per calendar year. Such participation would normally include providing, without cost, Collection and educational and publicity information promoting the goals of City's Solid Waste program. The City reserves the right to modify the required events and Contractor's participation requirements. 5.3.5 Media Relations Contractor shall notify the City of all requests for news media interviews related to the City's Solid Waste Handling Services within twenty-four (24) hours. Before responding to any inquiries, Contractor will discuss the proposed response with the City. Copies of draft news releases or proposed trade journal articles shall be submitted to City for prior review and approval at least two (2) working days in advance of release. Copies of articles resulting from media interviews or news releases shall be provided to the City within five (5) days after publication. Waste Generation/Characterization Studies Contractor acknowledges that City must perform Solid Waste generation and Disposal characterization studies periodically to comply with AB 939 requirements. Contractor agrees to participate and cooperate with City and its agents and to accomplish studies and data collection and prepare reports, as needed, to determine weights and volumes of Solid Waste and characterize Solid Waste generated, disposed, transformed, diverted or otherwise handled/ processed to satisfy AB 939 requirements. February 11, 2020 89 City of Santa Ana - DRAFT 60B-210 ARTICLE 6 COMPANY COMPENSATION AND RATES 6.1 General Contractor Compensation provided for in this Article shall be the full, entire and complete compensation due to Contractor pursuant to this Agreement for all labor, equipment, materials and supplies, taxes, insurance, bonds, overhead, Disposal, Recycling, processing, transfer, profit and all other factors necessary to perform all the services required by this Agreement in the manner and at the times prescribed. Contractor will perform the responsibilities and duties described in this Agreement in consideration of the right to receive compensation for services rendered at maximum rates approved by City from time -to -time. 6.2 Initial Rates The rates for the Rate Year beginning July 1, 2022 and ending June 30, 2023 shall not exceed those set forth in Exhibit 2 hereto, unless amended by a written amendment to this Agreement entered into by and between the City and the Contractor. Contractor has reviewed these maximum rates and agrees they are reasonably expected to generate sufficient revenues to provide adequate Contractor Compensation. Unless and until the maximum rates set forth on Exhibit 2 are adjusted, Contractor will provide the services required by this Agreement, charging no more than the maximum rates authorized by Exhibit 2, except as provided herein and in Section 6.3. 6.3 Schedule of Future Adjustments Beginning with Rate Year 2 (July 1, 2023) and for all subsequent Rate Years, Contractor is to submit the annual rate adjustment calculation (increase or decrease) to the maximum rates shown in Exhibit 2. The Contractor shall submit its calculation to be received by City, by March 1 of the same year based on the method of adjustment described in Section 6.4. Failure to submit a written request by March 1, shall result in Contractor waiving the right to request such an increase for the subsequent year. If in any year, the Contractor does not request the annual adjustment, and the adjustment would have been a decrease, the next year's adjustment will be offset to the extent of the February 11, 2020 60890211 City of Santa Ana - DRAFT waived decrease or the City may choose to notify the Contractor that it will implement the decrease. 6.4 Method of Adjustments 6.4.1 General Pursuant to Section 6.3, Contractor may request an annual adjustment to the Total Rate according to the formula shown in Exhibit 3, subject to review and approval of the City, in compliance with California Constitution Article XIIIIID (Proposition 218) and the Proposition 218 Omnibus Implementation Act (Govt. Code Sections 53750 et. seq.). All future adjustments to be effective July 1 shall be based on the rates described in the Contractor's Proposal. 6.4.2 Cost Component and Rate Adjustment Indexes The approved rates consist of the following cost components, followed by the initial weightings of each component. Each cost component may be adjusted by the change in the corresponding index as provided below. See Sections 6.4.3 through 6.4.6 for detailed rate adjustment procedures and Exhibit 3 for examples of rate adjustment procedures. RESIDENTIAL CURBSIDE, MULTI -FAMILY AND COMMERCIAL SERVICES COST COMPONENTS %of Costs (1) v U N � � U N > � � N v7 Cost Component u' m Rate Adjustment Index A. Service 72% 78% Consumer Price Index for All Urban Consumers (CUUR0000A0LIE), all items less food and energy — U.S. City Average (2) B. Fuel 5% 5% Producer Price Index WPU05522101, Fuels and related products and power - Commercial natural gas (2) C. Disposal 23% 17% Waste Disposal Agreement per ton gate rate at Orange County Landfill System Total 100% 100% (1) Weightings may be adjusted annually based on the adjustment process discribed in this Article 6. (2) Average annual change forthe 12 months ending December of the previous Calendar Year compared to the 12 months ending in December of year prior. February 11, 2020 60B91 n A n City of Santa Ana - DRAFT ROLL -OFF COST COMPONENTS ROLL -OFF PULL FEE PER LOAD - ALL TYPES AND SIZES Cost Component % of Costs (1) Rate Adjustment Index A. Service 90% Consumer Price Index for All Urban Consumers (CUUROOOOAOLIE), all items less food and energy— U.S. City Average (2) B. Fuel 10% Producer Price Index WPU05522101, Fuels and related products and power - Commercial natural gas Tota I 100 ROLL -OFF TONNAGE CHARGE Cost Component Rate Adjustment Index C. Tonnage Charge Consumer Price Index for All Urban Consumers (CUUROOOOOSAO), All Items, not seasonally adjusted — U.S. City Average (2) (1) Weightings may be adjusted annually based on the adjustment process discribed in this Article 6. (2) Average annual change for the 12 months ending December of the previous Calendar Year compared to the 12 months ending in December of year prior. OTHER SERVICES Cost Component Rate Adjustment Index A. Used Motor Oil and Consumer Price Index for All Urban Consumers Used Motor Oil (CUUROOOOAOLIE), all items less food and energy— U.S. City Filter Collection: Average (1) Monthly Collection Charge B. Emergency Services: Consumer Price Index for All Urban Consumers Hourly Rate (CUUROOOOAOLIE), all items less food and energy— U.S. City Average (1) C. Grant Consumer Price Index for All Urban Consumers Administration: (CUUROOOOAOLIE), all items less food and energy— U.S. City Hourly Rate Average (1) (1) Average annual change for the 12 months ending December of the previous Calendar Year compared to the 12 months ending in December of year prior. 6.4.3 Rate Adjustment Steps for Curbside Services and Bin Services Curbside Services rates and Bin Services rates (excluding roll -off) will be adjusted using the same method, but will be calculated separately due to the differences in the weightings of the service and disposal components for each Customer type, as listed in Section 6.4.2. February 11, 2020 92 City of Santa Ana - DRAFT 60B-213 Step One - Calculate the percentage increase or decrease in Service, Fuel, and Disposal component indices listed in Section 6.4.2. The increase or decrease in the Service and Fuel component indices will be for the change in the average annual published indices for the twelve (12) month period ending December prior to the July 1 when the rate change will take effect. The Disposal component will be based on the actual percentage change in the waste disposal agreement per ton gate rate at the Orange County Landfill System as of July 1 of each Rate Period. Step Two - The first rate adjustment cost components as a percentage of total costs are provided in Section 6.4.2 above, with subsequent components calculated in Step Four of the rate adjustment. For Step Two of each subsequent rate adjustment, use the cost components recalculated in Step Four during the previous rate adjustment. Multiply the percentage changes for each rate adjustment component by that component's weighting and add these resulting percentages together to get the total weighted change to the rates. Step Three - Multiply the total weighted percent change from Step Two by the existing maximum Curbside Services rates and Bin Services rates to determine the increase or decrease in maximum rates. Then add (subtract) the changes in rates to (from) the existing maximum rates to determine the new maximum rates. Step Four - Recalculate weightings for the following year based on these changes. 6.4.4 Rate Adjustment for Permanent Roll -Off Box This Section shall apply exclusively to the adjustment of Roll -off Box rates that are billed as "pull plus dump' and consist of a pull rate, or service component, plus a tonnage cost. See Exhibit 3 for example rate adjustment procedures. Service or "Pull" Component Step One - Calculate the percentage increase or decrease in the Service and Fuel components for "Pull Fee Per Load - All Types and Sizes" listed in Section 6.4.2. The increase or decrease in the rate adjustment indices for Service and Fuel components will be for the change in the average annual published indices for the twelve (12) month period ending December prior to the July 1 when the rate change will take effect. February 11, 2020 60893214 City of Santa Ana - DRAFT Step Two - The first rate adjustment cost components as a percentage of total costs are provided in Section 6.4.2 above, with subsequent components calculated in Step Four of the rate adjustment. For Step Two of each subsequent rate adjustment, use the cost components recalculated in Step Four during the previous rate adjustment. Multiply the percentage changes for each rate adjustment component by that component's weighting and add these resulting percentages together to get the total weighted change to the rates. Step Three - Multiply the total weighted percent change from Step Two by the existing Pull Per Load - All Types and Sizes rate to calculate the increase or decrease to the maximum rate. Then add (subtract) the change in rates to (from) the existing maximum rates to determine the new maximum rates. Step Four - Recalculate weightings for the following year based on these changes. Roll -Off Tonnage Charge Step One - Calculate the percentage increase or decrease in the tonnage component for "Roll -Off Tonnage Charge" listed in Section 6.4.2. The increase or decrease in the rate adjustment indices for the tonnage component will be for the change in the average annual published indices for the twelve (12) month period ending December prior to the July 1 when the rate change will take effect. Step Two - Multiply the percent change from Step One by the existing tonnage rate to calculate the increase or decrease to the maximum rate. Then add (subtract) the change in rates to (from) the existing maximum rates to determine the new maximum rates. Note: Under the Waste Disposal Agreements (WDA) with Orange County Waste and Recycling, the per ton gate rate, which is a portion of the "Roll -Off Tonnage Charge, is adjusted annually based on the increase or decrease in the Consumer Price Index for All Urban Consumers (CUUROOOOSAO), all items, U.S. city average, not seasonally adjusted, until the WDAs expire in 2025. In the event that there is an extraordinary adjustment to the Orange County Landfill per ton gate rates during or after the term of the WDAs, Contractor may request an extraordinary rate adjustment to the Roll Off Tonnage Charge as provided in this Agreement in Section 6.5. February 11, 2020 60894215 City of Santa Ana - DRAFT 6.4.5 Adjustment for Contractor's Monthly Compensation for Other Services StMOne - Calculate the percentage increase or decrease in the CPI. The increase or decrease in the will be for the change in the average annual published indices for the twelve (12) month period ending December prior to the July 1 when the rate change will take effect. St�Two - Multiply the percent change from Step One by the existing compensation to calculate the increase or decrease to the maximum rate. Then add (subtract) the change in compensation to (from) the existing maximum compensation to determine the new compensation. 6.4.6 Rate Adjustment for Optional Construction and Demolition Roll -Off Box and Bin Services [Upon determination by City Council to include the optional construction and demolition services in this Agreement, the rate increase methodology for this program shall be included in this section] 6.5 Extraordinary Adjustments Contractor or City may request an adjustment to maximum rates at reasonable times other than that allowed under Section 6.3 in the event of extraordinary changes in the cost of providing service under this Agreement. Such changes shall not include changes in the market value of Recyclables from the values assumed in Contractor's Proposal, inaccurate estimates by the Contractor of its proposed cost of operations, unionization of Contractor's work force, or change in wage rates or employee benefits. Contractor may request an extraordinary adjustment based on changes in a direct per ton fee assessed at the Disposal Site by federal, state or local regulatory agencies after the effective date. Extraordinary rate adjustments shall only be effective after approval by City Council in compliance with California Constitution Article XIIID (Proposition 218) and the Proposition 218 Omnibus Implementation Act (Govt. Code Sections 53750 et. seq.) and may not be applied retroactively. For each request for an adjustment to the maximum rates that Contractor may charge Customers brought pursuant to this section, Contractor shall prepare a schedule documenting the extraordinary costs. Such request shall be prepared in a form acceptable to City with support for assumptions made by Contractor in preparing the February 11, 2020 95 City of Santa Ana - DRAFT 60B-216 estimate. Contractor shall also submit a schedule showing how its total costs and total revenues have changed over the past three years for the services provided under this Agreement. Contractor shall provide to City a report of its annual revenues and expenses for the services provided in the City, and City shall have right to audit this information in connection with the City's review of Contractor's rate adjustment request. City shall review the Contractor's request and conduct a duly -noticed public hearing as required by California Constitution Article XIIID (Proposition 218) and the Proposition 218 Omnibus Implementation Act (Govt. Code Sections 53750 et. seq.). If, after closing the public hearing, there is not a "majority protest" to the extraordinary adjustment, as defined in Proposition 218, the City may, in its sole judgment and absolute, unfettered discretion, make the final determination as to whether an adjustment to the maximum rates will be made, and, if an adjustment is permitted, the appropriate amount of the adjustment. City may consider increases or decreases in the Contractor's total revenues and total cost of services when reviewing an extraordinary rate adjustment request. A rate adjustment request made in response to a new service requested by City will be determined in accordance with Section 2.10. February 11, 2020 60B96n A City of Santa Ana - DRAFT ARTICLE 7 REVIEW OF SERVICES AND PERFORMANCE 7.1 Performance Hearing City may hold a public hearing on or about the two-year anniversary of the start of this Agreement, and each 12 months thereafter, at which time Contractor shall be present and shall participate, to review the Solid Waste Collection, source reduction, processing and other Diversion services and overall performance. The purpose of the hearing is to provide for a discussion and review of technological, economic, and regulatory changes in Collection, source reduction, Recycling, processing and Disposal to achieve a continuing, advanced Solid Waste Collection, source reduction and Recycling and Disposal system; and to ensure services are being provided with adequate quality, effectiveness and economy. Forty-five (45) days after receiving notice from City of a Solid Waste Services and Performance Review Hearing, Contractor shall, at a minimum, submit a report to City indicating the following: a) Changes recommended and/or new services to improve City's ability to meet the recycling/waste diversion goals. b) Any specific plans and proposed costs for provision of changed or new services by Contractor. c) Results of the most recent route audit as described in Section 4.16. The records required by this Agreement regarding Customer complaints may be used as one basis for review. Contractor may submit other relevant performance information and reports for consideration. City may request Contractor to submit specific information for the hearing. In addition, any Customer may submit comments or complaints during or before the hearing, either orally or in writing, and these shall be considered. Topics for discussion and review at the Solid Waste Services and Performance Review Hearing shall include, but shall not be limited to, services provided, route audit results feasibility of providing new services, application of new technologies, Customer February 11, 2020 97 City of Santa Ana - DRAFT 60B-218 complaints, amendments to this Agreement, developments in the law, new initiatives for meeting or exceeding AB 939's goals, regulatory constraints and Contractor performance. City and Contractor may each select additional topics for discussion at any Solid Waste Services and Performance Review Hearing. Not later than sixty (60) days after the conclusion of each Solid Waste Services and Performance Review Hearing, City may issue a report. As a result of the review, City may require Contractor to provide expanded or new services within a reasonable time and for reasonable rates and compensation and City may direct or take corrective actions for any performance inadequacies. February 11, 2020 98 City of Santa Ana - DRAFT 60B-219 ARTICLE 8 RECORDS, REPORTS AND INFORMATION REQUIREMENTS 8.1 General Contractor shall maintain such accounting, statistical and other records related to its performance under this Agreement as shall be necessary to develop the financial statements and other reports required by this Agreement. Also, Contractor agrees to conduct data collection, information and record keeping, and reporting activities needed to comply with Applicable Laws and regulation and to meet the reporting and Solid Waste program management needs of City. To this extent, such requirements set out in this and other Articles of this Agreement shall not be considered limiting or necessarily complete. In particular, this Article is intended to only highlight the general nature of records and reports and is not meant to define exactly what the records and reports are to be and their content. Further, with the written direction or approval of City, the records and reports to be maintained and provided by Contractor in accordance with this and other Articles of the Agreement shall be adjusted in number, format, or frequency. 8.2 Records 8.2.1 General Contractor shall maintain records required to conduct its operations, to support requests it may make to City, and to respond to requests from City in the conduct of City business. Adequate record security shall be maintained to preserve records from events that can be reasonably anticipated such as a fire, theft and earthquake. Electronically maintained data/records shall be protected and backed up. All records shall be maintained for five (5) years, and shall continue to be available for five (5) years after the expiration of this Agreement. After minimum holding periods are met, Contractor will notify City 90 days before destroying records. Contractor agrees that the records of any and all companies conducting operations addressed in the Agreement shall be provided or made available to City and its official representatives during normal business hours. Account histories shall be accessible to February 11, 2020 99 City of Santa Ana - DRAFT 60B-220 the City by computer for a minimum of five (5) years. City may review or utilize any of the records described in this section for any purpose whatsoever. 8.2.2 Financial Records Financial records shall be maintained and expense and revenue information for City shall be segregated from other areas served by Contractor. Contractor shall maintain at least the following records: • Audited financial statements for Contractor or, if a guarantee was provided, for the parent company guarantor as a whole; • Financial statements (compiled, reviewed or audited) of revenue and expense for this Agreement segregated from the other operations of Contractor (including without limitation those operations of Contractor in City and surrounding jurisdictions which are not covered by this Agreement), including a description of segregation methodology; and, • Complete descriptions of related party transactions (corporate and/or regional management fees, inter -company profits from transfer, processing or Disposal operations and supporting data). 8.2.3 Solid Waste Records Records shall be maintained by Contractor for City relating to: • Customer services and billing; • Tons Collected, processed, diverted and disposed by waste stream (Refuse, Recycling, Organics), by Customer type (Cart, Residential Bin, Commercial and Roll - off Box) and Facilities (Transfer Station, MRF, Organic Material Processing Facility, Transformation Facility or landfill) where such material was taken (Residential Bin versus Commercial Bin tonnage may be estimated based upon Container distribution or other method approved by City); • Quantity of Recyclable Materials recovered by material type; • Bulky Item, results including tons disposed and diverted; February 11, 2020 60 6OOn n A City of Santa Ana - DRAFT • Annual cleanup event results, including tons disposed and diverted; • Routes; • Facilities, equipment and personnel used; • Facilities and equipment operations, maintenance and repair; • Number of Refuse, Recycling and Organics Contractor -owned Containers in service; • Complaints; and, • Missed pickups. Contractor shall maintain copies of said Billings and receipts, each in chronological order, for a period of five (5) years after the date of service and shall make said documents available for inspection by City upon request. Contractor may, at its option, maintain those records in computer form, on microfiche, or in any other manner, provided that the records can be preserved and retrieved for inspection and verification in a timely manner, are sufficient to verify accuracy of any Fees owed to the City, and may be produced in a form and manner sufficient to establish the existence of Customer obligations in a court of competent jurisdiction. 8.2.4 CERCLA Defense Records City views the ability to defend against the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), State Hazardous Substance Law, and related litigation as a matter of great importance. For this reason, the City regards the ability to prove where Solid Waste Collected in the City was taken for Disposal, as well as where it was not taken, to be matters of concern. Contractor shall maintain data retention and preservation systems which can establish where Solid Waste Collected in the City was landfilled (and therefore establish where it was not landfilled) and provide a copy or summary of the reports required in Section 8.3 for five (5) years after the term during which Collection services are to be provided pursuant to this Agreement, or to provide copies of such records to City. Contractor agrees to notify City's Risk Manager and City Attorney before destroying such records and to offer records to the City. This provision shall survive the expiration of the period during which Collection services are to be provided under this Agreement. February 11, 2020 60 601n n n City of Santa Ana - DRAFT 8.2.5 Disposal Records Contractor shall maintain records of Disposal of all Solid Waste Collected in City for the period of this Agreement and all extensions to this Agreement or successor Agreements. In the event Contractor discontinues providing Solid Waste services to City, Contractor shall provide all records of Disposal or processing of all Solid Waste Collected in City within thirty (30) days of discontinuing service. Records shall be in chronological and organized form and readily and easily interpreted. 8.2.6 Other Programs' Records Records for other programs shall be tailored to specific needs. In general, they shall include: a) Plans, tasks, and milestones; and, b) Accomplishments in terms such as dates, activities conducted, quantities of products used, produced or distributed, and numbers of participants and responses. 8.2.7 Audit City may conduct an audit of Contractor at any time. The scope of the audit, and auditing party, will be determined by City and the scope may include, but is not limited to: • Extraordinary rate adjustment requests; • Compliance with terms of this Agreement; • Customer service levels and Billing; • Fee payments; • Receipts; • Tonnage; • Complaint log; • Compliance with Mandatory Commercial Recycling, Mandatory Commercial Organics Recycling, and SB 1383; and, February 11, 2020 60 602,E n 3 City of Santa Ana - DRAFT • Verification of Diversion rate. The first audit, to be performed during 2024, will be based on the Contractor's reports and records for the period of July 1, 2022 through June 30, 2023. Audits will be performed every third year thereafter (the triennial audit). Contractor will reimburse to the City the cost of such audits as shown in the table below: Audit Performed In: Audit Amount 2024 $95,000 2027 $102,000 2030 $110,000 2033* $119,000 2036* $128,000 2039* $138,000 Optional extension term Should the Agreement be extended beyond the extension terms as described in Section 2.5, the audits shall continue every third year, and each additional audit amount shall be increased by ten -thousand dollars ($10,000) per audit period for audits conducted after 2039. Should an audit by the City disclose that Franchise or other fees payable by the Contractor were underpaid by two percent (2%) or more, or that more than 2% of the Customers were inaccurately billed, for the period under review, Contractor shall pay for additional audit costs, if the initial audit findings determine it is necessary to expand the scope of the audit. 8.2.8 Payments and Refunds Should an audit by the City disclose that any of the City fees payable by the Contractor were underpaid or that Customers were overcharged for the period under review, Contractor shall pay to City any underpayment of City fees and/or refund to Contractor's Customers any overcharges within thirty (30) days following the date of the audit. Should an audit disclose that City fees were overpaid, the amount of the over -payment shall be credited to Contractor against future franchise fee payments, with any such credits limited to overpayments for the prior three (3) years. February 11, 2020 60 d032 2 4 City of Santa Ana - DRAFT 8.3 Reports 8.3.1 Report Formats and Schedule Records shall be maintained in forms and by methods that facilitate flexible use of data contained in them to structure reports, as needed. Reports are intended to compile recorded data into useful forms of information that can be used to, among other things: a) Determine and set rates and evaluate the efficiency of operations; b) Evaluate past and expected progress toward achieving AB 939 goals and objectives; c) Determine needs for adjustment to programs; and, d) Evaluate Customer service and complaints. Contractor may propose report formats that are responsive to the objectives and audiences for each report. The format of each report requires approval by City. The Contractor agrees to submit all reports by electronic means in a format compatible with City's software/ computers at no additional charge, if requested by City. Contractor will provide a certification statement, under penalty of perjury, by an authorized Contractor official, that the report being submitted is true and correct. Monthly reports shall be submitted within 30 calendar days after the end of each month. Quarterly reports shall be submitted within 30 calendar days after the end of the calendar quarter. If requested, Contractor's complaint summary, shall be sent to the Executive Director within five days of request. Annual reports shall be submitted within sixty (60) days following the reporting year. All reports shall be submitted electronically to City, as directed, and to: Executive Director (or designated representative) Public Works Department City of Santa Ana 20 Civic Center, Plaza M-21 Santa Ana, CA 92702 8.3.2 Monthly Reports The information listed shall be the minimum reported: February 11, 2020 60 d0-� n 5 City of Santa Ana - DRAFT a) Solid Waste Collected by Contractor for each month, sorted by type of Solid Waste (Refuse, Recyclable and Organic Materials) and type of Customer (Residential Curbside Service Unit, Multi -Family Premises Bin, Commercial Premises or Roll -off) in tons, and the facilities where the tons were processed or disposed. Bulky Waste items and used motor oil gallons and filters shall be separately reported. This report is to be submitted in Microsoft Excel, or another software as requested by City. b) Warning notices issued for contaminated Recyclable Materials and Organics Materials Containers. c) Tons processed and recovered through Mixed Waste Processing. d) HHW Collected. e) If Contractor is directed by City to retain a consultant to provide public education and outreach activities as required by Section 4.4.7, Contractor shall submit consultant services performed and payments made by Contractor for the preceding month and year-to-date. f) Customer complaint logs as described in Section 5.2.2. 8.3.3 Quarterly Reports The quarterly report should contain at a minimum the information required in the monthly report and the following: a) Copies of promotional and public education materials sent during the quarter. b) Commercial recycling and organics site visits summary, including the name and address of Customer, the date of the visit and the contact name and phone number, demonstrating that the required visits have been made, and reason provided for not establishing a recycling or organics program, in accordance with Sections 4.3.5.1 and 4.3.6.1. The site visit summary will be completed on forms approved by the City. c) List of Customers that are required to participate in an Organics Recycling program per Public Resources Code Section 42649.81. d) List of Commercial and Multi -Family Premises Customers that do and do not participate in an Organics program, whether the Organics program is provided by -Contractor or another party, and whether the program is for Food Waste February 11, 2020 6 0 d052 2 6 City of Santa Ana - DRAFT and/or Yard Waste (such as a landscaper that composts or otherwise diverts Organic Materials). e) Commercial and Multi -Family Customers participating in food recovery programs. f) Commercial and Multi -Family Customers using third -party recycling. g) Additional information that may be requested by CalRecycle or City related to Recycling and Organics programs. h) Other information or reports that City may reasonably request or require. 8.3.4 Annual Report The Annual Report is to be essentially in the form and content of the monthly and quarterly reports combined, but shall also include: a) A complete inventory of equipment used to provide all services (such as vehicles and Containers by size and waste stream type Container is used for). b) Results of route audits. c) Number of routes and route hours per day by type of service. d) Copy of Hazardous Waste diversion records showing types and quantities, if any, of Hazardous Waste that was inadvertently Collected, but Diverted from landfilling. e) Copies of all public education and outreach distributed during the reporting year including the date of distribution. f) A narrative summary of all City -sponsored, civic, and school events attended. g) Copies of invoices documenting the amount of RNG used to provide services in the City. If routes are commingled with other jurisdictions, Contractor must use an allocation method to quantify the City's allocated amount. 8.3.5 Financial Report The City may, at City's option, request the Contractor's audited financial reports/statements (or parent company, if parent company submits Corporate Guaranty of Performance), and Contractor's internally prepared supplemental statement of income and expenses related specifically to the City of Santa Ana operations, for the most recently completed fiscal year in connection with an February 11, 2020 60 606n n 7 City of Santa Ana - DRAFT extraordinary rate adjustment request, billing audit, Franchise Fee audit, or verification of other information required under this Agreement. The financial statements and footnotes shall be prepared in accordance with Generally Accepted Accounting Principles (GAAP) and audited, in accordance with Generally Accepted Auditing Standards (GAAS) by a certified public accountant (CPA) licensed (in good standing) to practice public accounting in the State of California as determined by the State of California Department of Consumer Affairs Board of Accountancy. The cost for preparation of the financial statements and audit shall be borne by Contractor as a direct cost of service. In addition, Contractor shall provide to City the supplemental schedule on a compiled basis showing Contractor's results of operations, including the specific revenues and expenses in connection with the operations provided for in this Agreement, separated from others included in such financial statements. At City's request, Contractor shall provide City with copies of working papers or other documentation deemed relevant by City relating to information shown in the disclosure letter. The disclosure letter shall be provided to City. 8.4 Reporting Adverse Information Contractor shall provide City two copies (one to the Executive Director, one to the City Attorney) of all reports, pleadings, applications, notifications, Notices of Violation, communications or other material relating specifically to Contractor's performance of services pursuant to this Agreement, submitted by Contractor to, or received by Contractor from, the United States or California Environmental Protection Agency, CalRecycle, the Securities and Exchange Commission or any other federal, state or local agency, including any federal or state court. Copies shall be submitted to City simultaneously with Contractor's filing or submission of such matters with said agencies. Contractor's routine correspondence to said agencies need not be routinely submitted to City, but shall be made available to City promptly upon City's written request. 8.5 Right to Inspect Records City shall have the right to inspect or review the specific documents or records required expressly or by inference pursuant to this Agreement, or any other similar records or reports of Contractor or its related party entities that City shall deem, in its reasonable February 11, 2020 60 607n n 8 City of Santa Ana - DRAFT discretion, necessary to evaluate annual reports, compensation applications provided for in this Agreement and Contractor's performance provided for in this Agreement. Contractor shall make all records and documents to be reviewed and inspected by the City as a part of any audit or other record review conducted by the City, available for the City's review, inspection and copying within five business days (excluding Saturday, Sunday and holidays included in Section 4.7.1) of receiving written notice from the City requesting the same. 8.6 Failure to Report The refusal or failure of Contractor to file any required reports, or to provide required information to City, or the inclusion of any materially false or misleading statement or representation by Contractor in such report shall be deemed a material breach of the Agreement as described in Section 11.1 and shall subject Contractor to all remedies which are available to the City under the Agreement or otherwise. February 11, 2020 6 0 d082 2 9 City of Santa Ana - DRAFT ARTICLE 9 INDEMNIFICATION, INSURANCE AND BOND 9.1 Indemnification To the maximum extent permitted by law, and without regard to the limits of any insurance coverage, Contractor agrees to indemnify, defend with counsel appointed by the City, protect and hold harmless the City, its representatives, officers, agents and employees against any and all fines, response costs, assessments, actions, suits, injunctive relief, claims, damages to persons or property, losses, costs penalties, obligations, errors, omissions or liabilities, ("claims or liabilities') that may be asserted or claimed by any person, firm or entity arising out of or in connection with (i) violations of the commerce clause of the U.S. Constitution, AB 939, the Comprehensive Environmental Response, Compensation and Liability Act, Title 42 U.S.C. §9601 et seq. ("CERCLA"), HSAA, RCRA, any other Hazardous Waste laws, other federal, state or local statutes or regulations, or municipal ordinances, which arise from, challenge any validity of, or relate to the award of, this Agreement; (ii) the negligent performance of the work or services of Contractor, its agents, employees, subcontractors, or invitees, provided for in this Agreement; (iii) the negligent acts or omissions of Contractor hereunder, or arising from Contractor's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, whether or not there is concurrent passive or active negligence, on the part of the City, its representatives, officers, agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its representatives, officers, agents or employees, who are directly responsible to the City, (iv) actions or proceedings to attack, set aside, void, annul or seek monetary damages resulting from an approval by the City of this Agreement, including but not limited to any challenge brought by referendum or under Proposition 218 (Calif. Const. Art. XIIID) to challenge the City's entry into this Agreement or the setting of Solid Waste rates as set forth in this Agreement; and in connection therewith: A. Contractor will defend any action or actions filed in connection with any of said claim or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; February 11, 2020 60 d'-'2 30 City of Santa Ana - DRAFT B. Contractor will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work or services of Contractor hereunder; and Contractor agrees to save and hold the City, its officers, agents and employees harmless therefrom; C. In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work or services of Contractor hereunder, Contractor agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees. Contractor's obligations hereunder shall survive the termination or expiration of this Agreement. THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE, SHALL BE GIVEN THE BROADEST POSSIBLE INTERPRETATION AND SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. 9.2 Hazardous Material Indemnification A. Without regard to any insurance coverage or requirements, and without limiting the above general indemnification obligation in any way, Contractor specifically agrees to and shall, to the maximum extent permitted by law, defend (with counsel acceptable to City), reimburse, indemnify, and hold Indemnitees harmless from and against any and all claims, actions, liabilities, damages, demands, judgments, losses, costs, liens, expenses, suits, actions, attorneys' fees, consultant fees, penalties and any and all other losses, damages, fees and expenses of whatever kind or nature ("Claims") (including but not limited to response costs, investigative costs, assessment costs, monitoring costs, treatment costs, cleanup costs, removal costs, remediation costs, and similar costs, damages and expenses) that arise out of or are alleged to arise out of or in any way relate to any action, inaction or omission of Contractor that: 1. results in any demand, claim, notice, order, or lawsuit, asserting that any Indemnitee is liable, responsible or in any way obligated to investigate, assess, February 11, 2020 6 U 6102 3 1 City of Santa Ana - DRAFT monitor, study, test, treat, remove, remediate, or otherwise cleanup, any Hazardous Contaminant (as defined herein); or 2. relates to material Collected, transported, recycled, processed, treated or disposed of by Contractor. B. Contractor's obligations pursuant to this section shall apply, without limitation, to: 1. any Claims brought pursuant to or based on the provisions of any Environmental Law; 2. any Claims based on or arising out of or alleged to be arising out of the ownership, use, lease, sale, design, construction, maintenance or operation of Contractor of any Facility; 3. any Claims based on or arising out of or alleged to be arising out of the marketing, sale, distribution, storage, transportation, Disposal, processing or use of any materials recovered by Contractor; 4. any Claims based on or arising out of or alleged to be arising out of any breach of any express or implied warranty, representation or covenant arising out of or in connection with this Agreement. C. The foregoing indemnity and defense obligations shall apply irrespective of the negligence or willful misconduct of Contractor or any Affiliate of Contractor. D. For purposes of this section, the term "Hazardous Contaminant" shall mean any Hazardous Material any crude oil or refined or unrefined petroleum product or any fraction or derivative thereof; and any asbestos or asbestos -containing material. The term "Hazardous Contaminant" shall also include any and all amendments to any referenced statutory or regulatory provisions made before or after the date of execution of this Agreement. THE PROVISIONS OF THIS SECTION SHALL NOT TERMINATE OR EXPIRE, SHALL BE GIVEN THE BROADEST POSSIBLE INTERPRETATION AND SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. February 11, 2020 606'-'232 City of Santa Ana - DRAFT 9.3 AB 939 Indemnification and Guarantee Contractor unconditionally guarantees compliance with the requirements of AB 939 as amended from time to time. Contractor shall carry out its obligations under this Agreement so that the City will meet or exceed the Diversion requirements set forth in AB 939, and all amendments thereto more fully set forth below. City and Contractor shall reasonably assist each other to meet the City's AB 939 Diversion requirements. In carrying out the provisions of this Section, Contractor agrees to perform the following obligations at its cost and expense: A. Defend, with counsel approved by City, indemnify and hold harmless the City against all fines and/or penalties imposed by the CalRecycle, if Contractor fails or refuses to provide information relating to its operations which is required under this Agreement and such failure or refusal prevents or delays City from submitting reports required by AB 939 in a timely manner; B. Assist City in preparing for, and participating in, CalRecycle's biannual review of the City's source reduction and recycling element pursuant to Public Resources Code Section 41825; C. Assist City in responding to inquiries from CalRecycle in applying for an extension under Public Resources Code Section 41820, if so directed by City; in conducting any hearing conducted by CalRecycle relating to AB 939; or in any other investigative or enforcement manner undertaken by any agency; D. Defend, with counsel acceptable to City, and indemnify and hold harmless the City against any fines or penalties levied against it for violation of AB 939's diversion requirements, provided that Contractor's obligation to indemnify City shall be subject to the limitations set forth in Public Resources Code Section 40059.1(c) as may be amended from time to time; E. In cooperating with the City, should it seek to become its own enforcement agency, to the extent it may be permitted under state law. 9.4 Insurance City does not, and shall not, waive any rights against Contractor which it may have by reason of the aforesaid defense and hold harmless agreements, because of acceptance by February 11, 2020 60 61 � 33 City of Santa Ana - DRAFT City or the deposit with City by Contractor of the insurance policies described in this provision. A. Worker's Compensation Policy. Contractor shall maintain in full force and effect during the term of this Agreement, a workers' compensation policy in accordance with the provisions and requirements of the Labor Code of the State of California and such other forms of insurance as shall be required by law. The policy providing coverage shall provide that the insurance shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail has been given to the City. Waivers of Subrogation shall be in effect for any claims asserted against the City which arise out of Contractor's operations and Contractor shall have this clause endorsed on their Workers' Compensation policies. B. Public Liability Insurance _Contractor shall obtain, at its sole cost, and file with the Clerk of City, prior to exercising any right or performing any obligation pursuant to this Agreement, and maintain for the period covered by this Agreement, a policy or policies of liability insurance satisfactory to the City Attorney of City, naming City, its officers, agents and employees, as insured or additional insured, which provides coverage for liability for any and all claims and suits for damages or injuries to persons or property resulting from or arising out of the performance by Contractor, its officers, agents, or employees, or by City, its officers, agents, or employees pursuant to Section 2.1 of this Agreement, of Contractor's covenants hereunder, or any failure or omission thereof. Said policy or policies of insurance shall provide coverage for both bodily injury and property damage in not less than the following minimum amount: One Hundred Million Dollars ($100,000,000.00) combined single limit and, in addition, Ten Million Dollars ($10,000,000.00) of Environmental Impairment Liability coverage for bodily injury, property damage and cleanup costs as it relates to the transportation of Solid Waste. Said insurance shall protect Contractor and City from any claim for damages for bodily injury, including accidental death, as well as from any claim for property damage which may arise from operations performed pursuant to this Agreement, whether such operations be by Contractor itself, or by its agents, employees, and/or subcontractor. Such policy or policies shall contain severability of interests clauses so that the rights and duties of the City are clearly separate from Contractor interests. Said policy or policies shall also contain a provision that no termination, cancellation or February 11, 2020 60 613n 3 w City of Santa Ana - DRAFT change of coverage of insured or additional insured shall be effective until after thirty (30) days prior written notice by certified mail thereof has been given to City. Contractor shall give City prompt and timely notice of any claim made or suit instituted. 9.5 Faithful Performance Bond The Contractor shall, prior to the initial date of the term of this Agreement, execute and file with the Clerk of the Council a surety bond in the penal sum of two -million, five - hundred thousand dollars ($2,500,000), similar to the form provided in Exhibit 5, conditioned upon the faithful performance of this Agreement by the Contractor and its subcontractors, if any. Said bond may be written for a term of one year, and may thereafter be renewed by certificate, provided however, that the Contractor agrees to maintain such bond or bonds in force for the complete term of this Agreement. The bond shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. 9.6 Faithful Performance Letter of Credit In addition to a faithful performance bond as noted in Section 9.5 above, Contractor shall furnish an irrevocable letter of credit in the amount of five -hundred thousand dollars ($500,000), from a financial institution acceptable to the City and in a form acceptable to the City Attorney as security for the performance of this Agreement (the "LOC"). The LOC shall be the sole responsibility of Contractor, and shall remain in force until released in accordance with Section 9.9. Alternatively, Contractor may furnish an irrevocable letter of credit in the amount of three -million dollars ($3,000,000) in lieu of the separate letter of credit of $500,000 and separate performance bond of $2,500,000 described in Section 9.5. 9.7 Forfeiture of Performance Bond In the event Contractor shall for any reason become unable to, or fail in any way to, perform as required by this Agreement, City may declare a portion or all of the performance bond which is necessary to recompense and make whole the City, forfeited to the City. Upon partial or full forfeiture of the performance bond, Contractor shall restore the performance bond to its face amount within 30 days of the City's declaration. Failure to restore the performance bond to its full amount within 30 days shall be a material breach of the Agreement. February 11, 2020 60 61 �35 City of Santa Ana - DRAFT 9.8 Forfeiture of Letter Of Credit Thirty (30) days following City providing Contractor with written notice of its failure to pay City any amount owing under this Agreement, City may draw upon the LOC for purposes including, but not limited to: a. Payment of sums due under the terms of this Agreement which Contractor has failed to timely pay to City b. Reimbursement of costs borne by City to correct violations of this Agreement not corrected by Contractor, including but not limited to the liquidated damages described in Section 11.4. City may draw upon the entire LOC and convert it to a cash deposit if Contractor fails to cause the LOC to be extended or replaced with another satisfactory letter of credit no later than 60 days prior to its expiration during the term hereof. 9.9 Performance Security Beyond Service Term Some Agreement requirements extend beyond the Term of this Agreement and will not be substantiated until after the final service date. Therefore, the Contractor shall not terminate the performance bond or letter of credit, and will renew them to ensure continuous availability to the City, until receiving a written release from the City. City will provide such a release when City, in its reasonable judgment, is fully satisfied that all requirements have been met, but may not withhold such a release later than four (4) years after expiration of the term of this Agreement. However, permission from the City to discontinue holding these performance securities does not relieve Contractor of payments to the City that may be due, or may become due. February 11, 2020 60 6152 36 City of Santa Ana - DRAFT ARTICLE 10 CITY'S RIGHT TO PERFORM SERVICE 10.1 General In the event that Contractor, for any reason whatsoever, fails, refuses or is unable to Collect, Recycle, process, transport or dispose of any or all Solid Waste which it is required by this Agreement, at the time and in the manner provided in this Agreement, for a period of more than two business days, excluding Saturday, Sunday and holidays listed in Section 4.7.1, and if, as a result thereof, Solid Waste should accumulate in City to such an extent, in such a manner, or for such a time that such accumulation endangers or menaces the public health, safety or welfare, then City shall have the right, but not the obligation, upon twenty-four (24) hour prior written notice to Contractor during the period of such emergency as determined by City, (1) to perform, or cause to be performed, such services itself with its own or other personnel without liability to Contractor; and/or (2) to take possession of any or all of Contractor's land, equipment and other property used or useful in the Collection and transportation of Solid Waste, and to use such property to Collect and transport any Solid Waste generated within City which Contractor would otherwise be obligated to Collect, transport and properly dispose of or process pursuant to this Agreement. Further, the City shall have access to the MRF and composting facilities used by the Contractor for the processing, Recycling and Organics Diversion of Solid Waste produced or accumulated with the City. The right of the City to enter upon and use facilities and equipment as specified herein shall extend following the date of cancellation of this Agreement for a period of ninety (90) consecutive calendar days. Notice of Contractor's failure, refusal or neglect to Collect, transport and properly dispose of or process Solid Waste may be given orally by telephone to Contractor at its principal office and shall be effective immediately. Written confirmation of such oral notification shall be sent to Contractor within one business day, excluding Saturday, Sunday and holidays listed in Section 4.7.1 of the oral notification. Contractor further agrees that in such event: February 11, 2020 60 616n 37 City of Santa Ana - DRAFT A. It will take direction from City to effect the transfer of possession of equipment and property to City for City's use, or for use by any Person or entity designated by the City. B. It will, if City so requests, keep in good repair and condition all of such equipment and property, provide all motor vehicles with fuel, oil and other service, and provide such other service as may be necessary to maintain said property in operational condition. C. City may immediately engage all or any personnel necessary or useful for the Collection and transportation of Solid Waste, including, if City so desires, employees previously or then employed by Contractor, Contractor further agrees, if City so requests, to furnish City the services of any or all management or office Personnel employed by Contractor whose services are necessary or useful for Solid Waste Collection, transportation, processing and Disposal operations and for the billing and Collection of fees for these services. City agrees that it assumes complete responsibility for the proper and normal use of such equipment and facilities while in its possession. If the interruption or discontinuance in service is caused by any of the reasons listed in Section 11.5, City shall pay to Contractor the reasonable rental value of the equipment and facilities, possession of which is taken by City, for the period of City's possession, if any, which extends beyond the period of time for which Contractor has rendered bills in advance of service, for the class of service involved. 10.2 Temporary Possession of Contractor's Property If City suffers an interruption or discontinuance of service (including interruptions and discontinuance due to events described in Section 11.5), City may take possession of and use all of Contractor's property described above until other suitable arrangements can be made for the provision of Solid Waste Services which may include the grant of a Franchise to another waste hauling company. 10.3 Billing and Compensation to City During City's Possession During such time that City is providing Solid Waste services, as above provided, Contractor shall bill and Collect payment from all users of the above -mentioned February 11, 2020 60 617n 38 City of Santa Ana - DRAFT services as described in Section 5.1 with the exception of Residential Curbside Service Units which are billed by the City. Contractor further agrees that, in such event, it shall reimburse City for any and all costs and expenses incurred by City beyond that billed and received by City in taking over possession of the above -mentioned equipment and property for Solid Waste service in such manner and to an extent as would otherwise be required of Contractor under the Terms of this Agreement. Such reimbursement shall be made from time to time after submission by City to Contractor of each statement listing such costs and expenses, but in no event later than five (5) working days from and after each such submission. 10.4 City's Right to Relinquish Possession It is further mutually agreed that City may at any time at its discretion relinquish possession of any or all of the above -mentioned property to Contractor and thereupon demand that Contractor resume the Solid Waste services as provided in this Agreement, whereupon Contractor shall be bound to resume the same. 10.5 City's Possession Not A Taking Except as otherwise expressly provided in the previous paragraph, City's exercise of its rights under this Article (1) does not constitute a taking of private property for which compensation must be paid, (2) will not create any liability on the part of City to Contractor, and (3) does not exempt Contractor from any of the indemnity and insurance provisions of this Agreement, which are meant to extend to circumstances arising under this Section provided that the Contractor is not required to indemnify the City against claims and damages arising from the active negligence of the City, its elected and appointed boards, commissions, officers, employees and agents in the operation of Collection vehicles during the time the City has taken possession of such vehicles. 10.6 Duration of City's Possession City's right pursuant to this Article to retain temporary possession of Contractor's facilities and equipment, and to render Collection services, shall terminate when City determines that such services can be resumed by Contractor, or when City no longer reasonably requires such property or equipment. In any case, City has no obligation to maintain possession of Contractor's property or equipment and/or continue its use for February 11, 2020 60 618239 City of Santa Ana - DRAFT any period of time and may at any time, in its sole discretion, relinquish possession to Contractor. February 11, 2020 60 619n w O City of Santa Ana - DRAFT ARTICLE 11 DEFAULT, REMEDIES AND LIQUIDATED DAMAGES 11.1 Events of Default Contractor's breach of each and any provision of the Franchise or this Agreement may constitute a default hereunder to the extent Contractor's performance, services or obligations under this Agreement are materially and adversely impacted. Events of default by the Contractor include, but are not limited to, the following: A. Fraud or Deceit or Misrepresentation. If the Contractor engages in, or attempts to practice, any fraud or deceit upon City or makes a misrepresentation regarding material information to City. B. Insolvency or Bankruptcy. If Contractor becomes insolvent, unable, or unwilling to pay its debts, files a bankruptcy petition or takes steps to liquidate its assets. C. Failure to Maintain Coverage. If Contractor fails to provide or maintain in full force and effect the Workers' Compensation, liability, performance bond, letter of credit, or indemnification coverage as required by this Agreement. D. Violations of Regulation. If Contractor violates any orders or filings of any regulatory body having jurisdiction over Contractor relative to this Agreement, provided that Contractor may contest any such orders or filings by appropriate proceedings conducted in good faith, in which case no breach of the Franchise and this Agreement shall be deemed to have occurred until a final decision adverse to the Contractor is entered. E. Suspension or Termination of Service. If Contractor ceases to provide all or a portion of the Collection, processing or Recycling services, or any other Solid Waste Handling Services as required under this Agreement, if not excused pursuant to Section 11.5, for a period of two (2) consecutive days or more, for any reason within the control of Contractor. F. Failure to Pay. If Contractor fails to make any payments required under this Agreement and/or refuses to provide City, within ten (10) days of the demand, February 11, 2020 60 Ef-�4 1 City of Santa Ana - DRAFT with required information, reports, and/or records in a timely manner as provided for in the Agreement. G. Failure to Cooperate with Audits. Failure to complete, perform or cooperate with any audit as described by this Agreement. H. Failure to Submit Reports or Documentation. Failure to complete or to provide required reports or documents to City as required by this Agreement. I. Acts or Omissions. A. Any act or omission by Contractor relative to the services provided under this Agreement which violates the terms, conditions, or requirements of this Agreement, the California Integrated Waste Management Act of 1989, as it may be amended from time to time (AB 939), or any law, statute, ordinance, order, directive, rule, or regulation issued pursuant to AB 939 shall constitute a default by the Contractor. Any failure to correct or remedy any such violation within the time set in the written notice of the violation or, if Contractor cannot reasonably correct or remedy the breach within the time set forth in such notice, Contractor's failure to commence to correct or remedy such violation within the time set forth in such notice and diligently effect such correction or remedy thereafter shall constitute a default by Contractor. B. Any situation in which Contractor or any of its officers, directors or employees are found guilty of any crime related to the performance of this Agreement, or of any crime related to anti-trust activities, illegal transport or Disposal of hazardous or toxic materials, or bribery of public officials shall constitute a default by Contractor. The term "found guilty" shall be deemed to include any judicial determination that Contractor or any of Contractor's officers, directors or employees is guilty as well as any admission of guilt by Contractor or any of Contractor's officers, directors or employees including, but not limited to, the plea of "guilty", "nolo contendre", "no contest', and "guilty to a lesser charge." False or Misleading Statements. Any representation or disclosure made to City by Contractor in connection with or as an inducement to entering into this Agreement, or any future amendment to this Agreement, which proves to be false or misleading in any material respect as of the time such representation or disclosure is February 11, 2020 60 E21n w n City of Santa Ana - DRAFT made, whether or not any such representation or disclosure appears as part of this Agreement. K. Attachment. The seizure of, attachment of, or levy on, the operating equipment of Contractor, including, without limits, its equipment, maintenance or office facilities, or any part thereof. L. Failure to Provide Assurance of Performance. If Contractor fails to provide reasonable assurances of performance as required under Section 11.7. M. Commingling of Recyclables With Refuse/Landfilling of Recyclables. If Contractor negligently or willfully empties Containers of properly set out Recyclable Materials or Organics into a Refuse load, or transports a load of Recyclable Materials or Organics to a landfill or other location at which the material will not be diverted from landfilling. N. Diversion Requirement. If Contractor does not reach Diversion requirement of % of all tonnage Collected by Contractor under this Agreement per Section 4.6.1 for two consecutive Rate Years. Contractor shall have two business days, excluding Saturdays, Sundays and holidays included in Section 4.7.1, from the time it is given notification by City to cure any default arising under subsections E, F, G, H, K, L and M provided, however, that City shall not be obligated to provide Contractor with a notice and cure opportunity if the Contractor has committed the same or similar breach within a twenty-four (24) month period. It is expressly understood that Contractor is not entitled to receive notice of default, or to cure such default, with respect to those matters listed in subsections A, B, C, D, I, J and N above. For other actions not listed above, or included in 11.2 below, City will provide Contractor with a written notice setting forth the nature of the breach or failure and the actions, if any, required by Contractor to cure such a breach or failure. Contractor shall be deemed in default where: (1) breach or failure can be cured but Contractor fails to cure within thirty (30) days. February 11, 2020 60 62-, 43 City of Santa Ana - DRAFT 11.2 Criminal Activity of Contractor Should the Contractor or any of its officers, directors or employees be found guilty of felonious conduct related to the performance of this Contract, or of felonious conduct related to anti-trust activities, illegal transport or Disposal of hazardous or toxic materials, or bribery of public officials, the City reserves the right to unilaterally terminate this Contract or impose other such sanctions (which may include financial sanctions, temporary suspensions or any other condition deemed appropriate short of termination) as it shall deem proper. Such action shall be taken after Contractor has been given notice and opportunity to present evidence in mitigation. The term "found guilty' shall be deemed to include any judicial determination that Contractor or any of Contractor's officers, directors or employees is guilty and any admission of guilt by Contractor or any of Contractor's officers, directors or employees including, but not limited to, the plea of "guilty", "nolo contendere ", "no contest", and "guilty to a lesser charge" entered as part of any plea bargain. 11.3 Notice, Hearing and Appeal of Contractor Breach; Upon a default by Contractor, City may, at its discretion, provide Contractor with a written notice of intent to terminate this Agreement that includes the following: a. A description of the evidence upon which the decision to terminate is based b. That Contractor has a right to a hearing prior to the City's termination of the Agreement This hearing is to be scheduled as an open public hearing item at a City Council meeting within thirty (30) days of the Termination Notice, subject to any legal requirements including but not limited to the Ralph M. Brown Act, Government Code Sections 54950-54963. At this hearing Contractor shall have the right to present evidence to demonstrate that it is not in default and to rebut any evidence presented in favor of termination. Based upon substantial evidence presented at this hearing, the Council may, by adopted resolution, act as follows: 1. Decide to terminate this Agreement; or, 2. Determine that Contractor is innocent of a default and, accordingly, dismiss the Termination Notice of any charges of default; or, February 11, 2020 60 Ef-�44 City of Santa Ana - DRAFT 3. Impose conditions on a finding of default and a time for cure, such that Contractor's fulfillment of said conditions will waive or cure any default. This right of termination is in addition to any other rights of City upon a failure of Contractor to perform its obligations under this Agreement. City's right to terminate this Agreement and to take possession of Contractor's facility are not exclusive, and City's termination of this Agreement shall not constitute an election of remedies. Instead, they shall be in addition to any and all other legal and equitable rights and remedies which City may have, including without limitation the provision for Liquidated Damages in Section 11.4 below. By virtue of the nature of this Agreement, the urgency of timely continuous and high - quality service, the time required to effect alternative service, and the rights granted by City to Contractor, the remedy of money damages for a breach hereof by Contractor is inadequate and City shall be entitled to injunctive relief. 11.4 Liquidated Damages A. General. City finds, and Contractor agrees, that as of the time of the execution of this Agreement, it is impractical, if not impossible, to reasonably ascertain the extent of damages which shall be incurred by City as a result of a breach by Contractor of certain specific obligations under this Agreement. The factors relating to the impracticability of ascertaining damages include, but are not limited to, the fact that: (i) substantial damage results to members of the public who are denied services or denied quality or reliable service; (ii) such breaches cause inconvenience, anxiety, frustration, and deprivation of the benefits of the Agreement to individual members of the general public for whose benefit this Agreement exists, in subjective ways and in varying degrees of intensity which are incapable of measurement in precise monetary terms; (iii) that the services that are the subject of this Agreement might be available at substantially lower costs than alternative services and the monetary loss resulting from denial of services or denial of quality or reliable services is impossible to calculate in precise monetary terms; and (iv) the termination of this Agreement for such specific breaches, and other remedies are, at best, a means of future correction and not remedies which make the public whole for past breaches. B. Service Performance Standards; Liquidated Damages for Failure to Meet Standards. The parties further acknowledge that consistent, reliable Solid Waste February 11, 2020 60 Ef L 4 5 City of Santa Ana - DRAFT Handling Service is of utmost importance to City and that City has considered and relied on Contractor's representations as to its quality of service commitment in entering this Agreement. The Parties further recognize that some quantified standards of performance are necessary and appropriate to ensure consistent and reliable service and performance. The Parties further recognize that if Contractor fails to achieve the performance standards, or fails to submit required documents in a timely manner, City and its residents will suffer damages and that it is and will be impractical and extremely difficult to ascertain and determine the exact amount of damages which City will suffer. Therefore, without prejudice to City's right to treat such breaches as an event of default under this Article 11, the Parties agree that the following liquidated damage amounts represent a reasonable estimate of the amount of such damages for such specific breaches, considering all of the circumstances existing on the date of this Agreement, including the relationship of the sums to the range of harm to City that reasonably could be anticipated and the anticipation that proof of actual damages would be costly or impractical. In placing their initials at the places provided, each party specifically confirms the accuracy of the statements made above and the fact that each party has had ample opportunity to consult with legal counsel and obtain an explanation of the liquidated damage provisions at the time that the Agreement was made. Contractor City Initial Here Initial Here Contractor agrees to pay (as liquidated damages and not as a penalty) the amounts set forth below: 1. Collection Reliability a) For each failure to commence service to a new Customer account within seven (7) days after order, which exceeds five (5) such failures annually: $100.00 per occurrence b) For each failure to Collect Solid Waste, which has been properly set out for Collection, from an established Customer account on the scheduled Collection day and not Collected within the period described in this Agreement which exceeds ten (10) such failures annually: $100.00 per occurrence February 11, 2020 60 625n w 6 City of Santa Ana - DRAFT 2. 3. c) For each failure to correct and collect a missed service the same day if notified by noon, and by the next Collection if notified after noon:$100.00 per occurrence Collection Quality a) For each occurrence of failure to properly return empty Containers to avoid pedestrian or vehicular traffic impediments or to place Containers upright which exceeds ten (10) such occurrences annually: $50.00 per occurrence b) For each occurrence of excessive noise or discourteous behavior which exceed ten (10) occurrences annually: $100.00 per occurrence c) For each occurrence of Collecting Solid Waste during unauthorized hours which exceeds ten (10) such occurrences annually: $100.00 per occurrence d) For each occurrence of damage to private property which exceeds five (5) such occurrences annually: $100.00 per occurrence e) For each failure to clean up Solid Waste spilled from Solid Waste Containers within ninety (90) minutes that exceeds ten (10) such failures annually: $100.00 per occurrence Customer Responsiveness a) For each failure to initially respond to a Customer complaint within one (1) business day (excluding Saturday, Sunday and holidays listed in Section 4.7.1), and for each additional day in which the complaint is not addressed, which exceed five (5) annually: $50.00 per day b) For each failure to process Customer complaints as required by Article 5, c) which exceed five (5) annually: $50.00 per occurrence For each failure to respond to a written inquiry from the City's Solid Waste contract manager regarding service requests or requests for information within two (2) business days (excluding Saturday, Sunday and holidays listed in Section 4.7.1), and for each additional day in which the inquiry is not addressed, which exceed five (5) occurrences annually: $100 per occurrence February 11, 2020 64-6 47 City of Santa Ana - DRAFT 5. d) For each failure to carry out responsibilities for establishing service to an individual resident: $100.00 per occurrence e) For each failure to remove graffiti from Containers, or to replace with Containers bearing no graffiti, within the time prescribed in Section 4.7.4.5: $ 50.00 per day f) For each failure to repair or replace a damaged or missing Container within two (2) business days (excluding Saturday, Sunday and holidays listed in Section 4.7.1) of request from City or Customer: $ 50.00 per day g) For each failure to process a claim for damages within thirty (30) days from the date submitted to Contractor: $100.00 per occurrence h) For every Recycling Cart Collected as Refuse without issuing a Warning Notice per Section 4.2.7 which exceeds ten (10) such occurrences annually: $50 per Cart i) For every Organics Waste Cart Collected as Refuse without issuing a Warning Notice per Section 4.2.7 which exceeds ten (10) such occurrences annually: $50 per Cart j) For each failure to issue a Warning Notice to a Customer for materials not collected due to improper set out which exceeds ten (10) such occurrences annually: $100 per day per occurrence Remittance of Citv Fees a) For each failure to remit City fees by the thirtieth (30) of the month following each calendar quarter: 10% of the amount owed for the month, and an additional 10% for each additional thirty (30) day period thereafter in accordance with Article 3. Timeliness of Submissions to City Any report shall be considered late until such time as a correct and complete report is received by City. For each calendar day a report is late, the daily liquidated damage amount shall be: February 11, 2020 60 617248 City of Santa Ana - DRAFT an 7 0 a) Monthly Reports: b) Quarterly Reports: c) Annual Reports: Accuracy of Billing $50 per day $50 per day $100 per day a) Each Customer invoice that is not prepared in accordance with the City's approved rate schedule, in excess of ten (10) annually: $25 per invoice not to exceed $2,500 per billing run Public Education and Outreach a) For each day that the Public Education and Outreach requirements contained in Section 5.3 are not adhered to after written notice provided to Contractor and Contractor does not cure within 30 days: $100/day Cooperation with Service Provider Transition a) For each day routing information requested by City in accordance with Section 12.9 is received after City -established due dates, both for preparation of a request for proposals and for new service provider's implementation of service: $1,000/ day b) For each day delivery of keys, access codes, remote controls, or other means of access to Solid Waste Containers is delayed beyond one (1) day prior to new service provider servicing Customers with access issues, as described in Section 12.9: $1,000/day c) For delay in not meeting the requirements contained in Section 12.9 in a timely manner, in addition to the daily liquidated damages for breach under 8(a) and 8(b) above, liquidated damages of: Diversion Efforts $35,000 For each Rate Year (July 1, 2022 through June 30, 2023 considered the first Rate Year) in which Contractor fails to provide support to the City within forty-five (45) days of year-end, documenting that it diverted at least % of the Solid Waste Contractor Collected under this Agreement per Section 4.6.1: February 11, 2020 60 E 2- , w 9 City of Santa Ana - DRAFT $25 for each ton below tonnage level necessary to meet % Diversion goal 10. General Contract Adherence For each day that Contractor fails to provide services required under the Agreement, or comply with terms of the Agreement, five (5) business days after receipt of written notification from City that such services are not being provided or terms are not being met: $500.00/day 11. Compensation Reduction During Strike Period In the event that there occurs any period in which Contractor fails to maintain substantially complete regular Collection services pursuant to this Agreement and the Collection schedules then in effect, by reason of a strike or Contractor's failure to pay their employees, and only if such period includes more than ten (10) normal Collection days (weekdays), then the following shall apply: a) The City Council may assess damages against the Contractor in an amount which does not exceed the sum of the following: i. The expenses incurred by the City in providing Collection, Recycling, Organics Diversion and/or Disposal services pursuant to Section 10; and, ii. One -Hundred percent (100%) of the amount by which City revenue from fees collected for Residential Curbside Service Units by the City from the public is reduced due to any reduction or refund of such fees granted by the City Council to compensate such fee payers for the inconvenience experienced by them due to Contractor's failure to furnish full performance during such period. b) In assessing damages, the City Council shall take into account the Contractor's efforts to mitigate the inconvenience to the public receiving curbside service. In particular, Contractor shall be given credit for Residential Curbside Service Unit Collections made by Contractor by having damages assessed, subject to the above said maximum, in approximately the same proportion to the compensation due Contractor, for curbside service during the subject period as the number of Residential Curbside Service Unit February 11, 2020 60 d292 50 City of Santa Ana - DRAFT Collections which Contractor failed to make bears to the total number of Residential Curbside Service Unit Collections which should have been made pursuant to this Agreement. City may determine the occurrence of events giving rise to liquidated damages through the observation of its own employees or representative or investigation of Customer complaints. Prior to assessing liquidated damages, City shall give Contractor notice of its intention to do so. The notice will include a brief description of the incident(s)/non-performance. Contractor may review (and make copies at its own expense) all information in the possession of City relating to incident(s)/non-performance. Contractor may, within ten (10) days after receiving the notice, request a meeting with City. Contractor may present evidence in writing and through testimony of its employees and others relevant to the incident(s)/non-performance. City will provide Contractor with a written explanation of its determination on each incident(s)/non-performance prior to authorizing the assessment of liquidated damages. The decision of City shall be final. C. Amount. City may assess liquidated damages for each calendar day or event, as appropriate, that Contractor is determined to be liable in accordance with this Agreement. D. Timing of Payment. Contractor shall pay any liquidated damages assessed by City within ten (10) days after they are assessed. If they are not paid within the ten (10) day period, City may proceed against the performance bond required by the Agreement or find Contractor in default and terminate this Agreement pursuant to Section 11.1, or both. 11.5 Excuse from Performance The parties shall be excused from performing their respective obligations hereunder in the event they are prevented from so performing by reason of floods, earthquakes, other natural disasters, war, civil insurrection, riots, acts of any government (including judicial action), and other similar catastrophic events which are beyond the control of and not the fault of the party claiming excuse from performance hereunder. Labor unrest, including, but not limited to, strike, work stoppage or slowdown, sick- out, picketing, or other concerted job action conducted by Contractor's employees or February 11, 2020 60 6302 5 1 City of Santa Ana - DRAFT directed at Contractor is excused from performance only to the extent that the following requirements are met: • Contractor provides a contingency plan to the City within ninety (90) days of commencement of services under this Agreement demonstrating how services will be provided during the period of labor unrest. The contingency plan is subject to City approval and Contractor shall amend the plan until it meets City requirements, including reasonably demonstrating how City's basic Collection and sanitary needs will be met to the City's satisfaction. • Contractor shall meet all requirements of this plan or City may revoke this excuse from performance offered under this Agreement and may choose to use enforcement provisions under this Agreement, including Sections 11.1, 11.2 and 11.3, in which case Contractor is not excused from performance and Contractor shall be obligated to continue to provide service notwithstanding the occurrence of any or all of such events. The party claiming excuse from performance shall, within two (2) days after such party has notice of such cause, give the other party notice of the facts constituting such cause and asserting its claim to excuse under this section. The interruption or discontinuance of Contractor's services caused by one or more of the events excused shall not constitute a default by Contractor under this Agreement. Notwithstanding the foregoing, however, if Contractor is excused from performing its full obligations under this Agreement for any of the causes listed in this section for a period of forty five (45) days or more, City shall nevertheless have the right, in its sole discretion, to terminate this Agreement by giving ten (10) days' notice, in which case the provisions relative to taking possession of Contractor's land, equipment and other property and engaging Contractor's Personnel in Article 10 and this Article 11 will apply. 11.6 Notice, Hearing and Appeal of City Breach Should Contractor contend that City is in breach of this Agreement, it shall file with the Executive Director of Public Works a written request with City for an administrative hearing. Said request shall be made within ninety (90) days of the event or incident which allegedly gave rise to the breach. City shall notify Contractor of the time and date said hearing shall be held within thirty (30) days of receipt of Contractor's request. February 11, 2020 6 U EK2 5 n City of Santa Ana - DRAFT Contractor shall present its position and all relevant facts after City staff has made its presentation. Contractor shall be notified of City's ruling in writing within fourteen (14) days of the administrative hearing. The City's administrative ruling shall be final. Contractor understands and agrees that if it fails to timely and properly exhaust the administrative remedies set forth in this Section, it has no right of action or other claim against the City for breach of this Agreement or otherwise. 11.7 Assurance of Performance City may, at its option and in addition to all other remedies it may have, demand from Contractor reasonable assurances of timely and proper performance of this Agreement, in such form and substance as City may require. If Contractor fails or refuses to provide satisfactory assurances of timely and proper performance in the form and by the date required by City, such failure or refusal shall be an event of default. 11.8. Contractor's Claim of Default by City. If Contractor claims default by the City in the payment of any money due or alleged to be due to Contractor pursuant to this Agreement, Contractor shall not be entitled to cancel this Agreement if the City, within fifteen (15) days after receipt of notice of the claimed default, deposits the amount in controversy into an interest bearing account in a commercial bank or lending institution and maintains such deposit until such time as a final judicial decision of agreement between the parties determines the rightful disposition of the said amount in controversy; provided that Contractor shall be deemed to have waived all claims to the said amount if no agreement is reached nor any legal proceeding initiated within one (1) year of the Contractor's service of written notice of default on the City. February 11, 2020 60 632,E 53 City of Santa Ana - DRAFT 12.1 12.2 12.3 12.4 ARTICLE 12 OTHER AGREEMENTS OF THE PARTIES Relationship of Parties The parties intend that Contractor shall perform the services required by this Agreement as an independent Contractor engaged by City and not as an officer or employee of City nor as a partner of or joint venture with City. No employee or agent or Contractor shall be or shall be deemed to be an employee or agent of City. Except as expressly provided herein, Contractor shall have the exclusive control over the manner and means of conducting the Solid Waste Collection services performed under this Agreement, and all Persons performing such services. Contractor shall be solely responsible for the acts and omissions of its officers, employees, Companies, Subcontractors and agents. Neither Contractor nor its officers, employees, Companies, Subcontractors and agents shall obtain any rights to retirement benefits, workers' compensation benefits, or any other benefits which accrue to City employees by virtue of their employment with City. Compliance with Law In providing the services required under this Agreement, Contractor shall at all times, at its sole cost, comply with all Applicable Laws. Governing Law This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. Jurisdiction Except for those matters where Federal Courts have exclusive jurisdiction, any lawsuits between the parties arising out of this Agreement shall be brought and concluded in the courts of the State of California, which shall have exclusive jurisdiction over such lawsuits. With respect to venue, the parties agree that this Agreement is made in and will be performed in Orange County. February 11, 2020 60 6332 54 City of Santa Ana - DRAFT 12.5 Assignment Except as may be provided for in Article 10 (City's Right to Perform Service), neither party shall assign its rights, nor delegate, subcontract or otherwise transfer its obligations under this Agreement to any other Person without the prior written consent of the other party. Any such assignment made without the consent of the other party shall be void and the attempted assignment shall constitute a material breach of this Agreement. For purposes of this section when used in reference to Contractor, "assignment" shall include, but not be limited to (i) a sale, exchange or other transfer of substantially all of Contractor's assets dedicated to service under this Agreement to a third party; (ii) a sale, exchange or other transfer of outstanding common stock of Contractor to a third party provided said sale, exchange or transfer may result in a change of control of Contractor; (iii) any dissolution, reorganization, consolidation, merger, re -capitalization, stock issuance or re -issuance, voting trust, pooling agreement, escrow arrangement, liquidation or other transaction to which results in a change of Ownership or control of Contractor; (iv) any assignment by operation of law, including insolvency or bankruptcy, making assignment for the benefit of creditors, writ of attachment for an execution being levied against this Agreement, appointment of a receiver taking possession of Contractor's property, or transfer occurring in the event of a probate proceeding; and (v) any combination of the foregoing (whether or not in related or contemporaneous transactions) which has the effect of any such transfer or change of Ownership, or change of control of Contractor. Contractor acknowledges that this Agreement involves rendering a vital service to City's residents and businesses, and that City has selected Contractor to perform the services specified herein based on (1) Contractor's experience, skill and reputation for conducting its Solid Waste management operations in a safe, effective and responsible fashion, at all times in keeping with applicable Environmental Laws, regulations and best Solid Waste management practices, and (2) Contractor's financial resources to maintain the required equipment and to support its indemnity obligations to City under this Agreement. City has relied on each of these factors, among others, in choosing Contractor to perform the services to be rendered by Contractor under this Agreement. If Contractor requests City's consideration of and consent to an assignment, City may deny or approve such request in its complete discretion. No request by Contractor for February 11, 2020 60 634,E 55 City of Santa Ana - DRAFT consent to an assignment need be considered by City unless and until Contractor has met the following requirements: a) Contractor shall pay to City in advance of consideration of any assignment a flat fee of $250,000 for expenses for City staff costs, consultant and attorney's fees and investigation costs necessary to investigate the suitability of any proposed assignee, and to review and finalize any documentation required as a condition for approving any such assignment; b) Contractor shall pay the City a transfer fee equal to 1% of the gross revenues times the number of years (pro -rated for partial years) remaining under this Agreement (based on actual rate revenues for the prior 12-months), plus the City's costs of processing and evaluating the assignment request; c) Contractor shall furnish City with audited financial statements of the proposed assignee's operations for the immediately preceding three (3) operating years; d) A proforma financial statement (income statement and balance sheet) for the proposed assignee with the projected results of operations assuming that the assignment is completed. Such proforma financial statement shall reflect any debt to be incurred by the assignee as part of the acquisition of Contractor's operations; and, e) Contractor shall furnish City with satisfactory proof: (i) that the proposed assignee has at least ten (10) years of Solid Waste management experience on a scale equal to or exceeding the sale of operations conducted by Contractor under this Agreement; (ii) that in the last five (5) years, the proposed assignee has not suffered any significant citations or other censure from any federal, state or local agency having jurisdiction over its Solid Waste management operations due to any significant failure to comply with state, federal or local Environmental Laws and that the assignee has provided City with a complete list of such citations and censures; (iii) that the proposed assignee has at all times conducted its operations in an environmentally safe and conscientious fashion; (iv) that the proposed assignee conducts its Solid Waste management practices in accordance with sound Solid Waste management practices in full compliance with all federal, state and local laws regulating the Collection and Disposal of Solid Waste including Hazardous Material; and, (v) of any other information required by City to ensure February 11, 2020 60 d352 56 City of Santa Ana - DRAFT 12.6 12.7 12.8 the proposed assignee can fulfill the Terms of this Agreement in a timely, safe and effective manner. Under no circumstances shall City be obliged to consider any proposed assignment by City if Contractor is in default at any time during the period of consideration. Affiliated Companies Contractor's accounting records shall be maintained on a basis showing the results of Contractor's operations under this Agreement separately from operations in other locations, as if Contractor were an independent entity providing service only to City. The costs and revenues associated with providing service to City shall not be combined, consolidated or in any other way incorporated with those of other operations conducted by Contractor in other locations, or with those of an Affiliate. If Contractor enters into any financial transactions with a Related Party Entity for the provision of labor, equipment, supplies, services, capital, etc., related to the furnishing of service under this Agreement, that relationship shall be disclosed to City, and in the financial reports submitted to City. In such event, City's rights to inspect records, and obtain financial data shall extend to such Related Party Entity or entities. Contracting or Subcontracting This Agreement, or any portion thereof, shall not be subcontracted except with the prior written consent of the City, which consent shall not be unreasonably withheld. No such consent shall be construed as making the City a party to such subcontract, or subject the City to liability of any kind to any subcontractor. Contractor shall submit all subcontracts for review and approval by the City and any permitted subcontract shall terminate on or before the termination of this Agreement. All subcontractors shall be licensed as required under State, Federal and local laws and regulations to perform their subcontracted work and obtain and maintain a City business license if required. Contractor shall remain otherwise liable for the full and complete performance of its obligations hereunder. Binding on Assigns The provisions of this Agreement shall inure to the benefit to and be binding on the permitted assigns (if any) of the parties. February 11, 2020 60 636n 5% City of Santa Ana - DRAFT 12.9 Transition to Next Contractor Prior to, and at, the end of the Term or in the event this Agreement is terminated for cause prior to the end of the Term, Contractor shall cooperate fully with City and any subsequent Solid Waste enterprise it designates to assure a smooth transition of Solid Waste Handling Services. Contractor's cooperation shall include, but not be limited to, providing route lists, Billing information and other operating records needed to service all Premises covered by this Agreement. In recognition of the difficulty inherent in Customer's difficulty or inability to store two sets of Containers, Contractor shall remove its Containers in coordination with the distribution of Containers by the incoming service provider. Contractor shall cooperate with the City and incoming service provider in agreeing to the timing of Container removal; if parties cannot agree on a phase -out schedule and Contractor does not remove Containers in a timely manner that requires Customers to store two Containers, City, incoming service provider, or another entity may remove Contractor's Containers and seek cost reimbursement from Contractor through its performance bond, letter of credit or other means. The failure to cooperate with City following termination shall be conclusively presumed to be grounds for specific performance of this covenant and/or other equitable relief necessary to enforce this covenant. Contractor shall, to the maximum extent feasible, provide a new service provider with all keys, security codes and remote controls used to access garages and Bin enclosures. Contractor shall be responsible for coordinating transfer immediately after Contractor's final pickups, so as not to disrupt service. Contractor shall provide City with detailed route sheets containing service names and addresses, billing names and addresses, monthly rate and service levels (quantity, material type, and size of Containers and pickup days) at least 90 days prior to the transition date, and provide an updated list two weeks before the transition and a final list of changes the day before the transition. Contractor shall provide means of access to the new service provider at least one full calendar day (excluding Saturday, Sunday and holidays listed in Section 4.7.1) prior to the first day of Collection by another party, and always within sufficient time so as not to impede in any way the new service provider from easily servicing all Containers. Contractor to provide documentation to City of any Customer declining request to provide keys, security codes, and/or remote controls used to access garages and Bin enclosures. February 11, 2020 60 617n �� City of Santa Ana - DRAFT 12.10 Parties in Interest Nothing in this Agreement, whether express or implied, is intended to confer any rights on any Persons other than the parties to it and their representatives, successors and permitted assigns. 12.11 Waiver The waiver by either party of any breach or violation of any provisions of this Agreement shall not be deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach of violation of the same or any other provision. The subsequent acceptance by either party of any moneys which become due hereunder shall not be deemed to be a waiver of any pre-existing or concurrent breach or violation by the other party of any provision of this Agreement. 12.12 Contractor's Investigation Contractor has made an independent investigation (satisfactory to it) of the conditions and circumstances surrounding the Agreement and the work to be performed by it. 12.13 Condemnation City fully reserves the rights to acquire Contractor's property utilized in the performance of this Agreement, by purchase or through the exercise of the right of eminent domain. This provision is additive, and not intended to alter the rights of the parties set forth in Article 10. 12.14 Notice All notices, demands, requests, proposals, approvals, consents and other communications which this Agreement requires, authorizes or contemplates shall be in writing and shall either be personally delivered to a representative of the parties at the address below or be deposited in the United States mail, first class postage prepaid, addressed as follows: If to City: Executive Director of Public Works City of Santa Ana 14717 Burin Avenue Santa Ana, CA 90260 February 11, 2020 60 d382 59 City of Santa Ana - DRAFT If to Contractor: The address to which communications may be delivered may be changed from time to time by a written notice given in accordance with this section. Notice shall be deemed given on the day it is personally delivered or, if mailed, three days from the date it is deposited in the mail. 12.15 Representatives of the Parties References in this Agreement to the "City" shall mean the City Council and all actions to be taken by City shall be taken by the City Council except as provided below. The City Council may delegate, in writing, authority to the City Manager, and/or to other City employees and may permit such employees, in turn, to delegate in writing some or all of such authority to subordinate employees. Contractor may rely upon actions taken by such delegates if they are within the scope of the authority properly delegated to them. Contractor shall, by the effective date, designate in writing a responsible officer who shall serve as the representative of Contractor in all matters related to the Agreement and shall inform City in writing of such designation and of any limitations upon his or her authority to bind Contractor. City may rely upon action taken by such designated representative as actions of Contractor unless they are outside the scope of the authority delegated to him/her by Contractor as communicated to City. 12.16 City Free to Negotiate with Third Parties City may investigate all options for the Collection, transporting, Recycling, processing and Disposal of Solid Waste for periods commencing after the expiration of the initial Term. Without limiting the generality of the foregoing, City may solicit proposals from Contractor and from third parties for the provision of Collection services, Disposal services, Recycling services, Organics services and processing, and any combination thereof, and may negotiate and execute agreements for such services which will take effect upon the expiration or earlier termination under Section 11.1 of this Agreement. February 11, 2020 60 d392 60 City of Santa Ana - DRAFT 12.17 Compliance with Municipal Code Contractor shall comply with those provisions of the municipal code of City which are applicable, and with any and all amendments to such applicable provisions during the term of this Agreement. 12.18 Privacy Contractor shall strictly observe and protect the rights of privacy of Customers. Information identifying individual Customers or the composition or contents of a Customer's waste stream shall not be revealed to any Person, governmental unit, private agency, or company, unless upon the authority of a court of law, by statute, or upon valid authorization of the Customer. This provision shall not be construed to preclude Contractor from preparing, participating in, or assisting in the preparation of waste characterization studies or waste stream analyses which may be required by AB 939. This provision shall not apply to reports or records provided to City pursuant to this Agreement so long as City maintains reports or records with Customer identification or confidential information in accordance with this section, in which case this section shall apply to City in the same manner to which it applies to Contractor. 12.19 Cooperation Following Termination At the end of the Term or in the event this Agreement is terminated for cause prior to the end of the Term, Contractor shall cooperate fully with City and any subsequent Contractor to assure a smooth transition of Solid Waste management services. Contractor's cooperation shall include, but not be limited to, providing operating records needed to service all properties covered by this Agreement. The failure to cooperate with City following termination shall be conclusively presumed to be grounds for specific performance of this covenant and/or other equitable relief necessary to enforce this covenant. 12.20 Compliance with Immigration Laws. Contractor shall be knowledgeable of and comply with all local, state and federal laws which may apply to the performance of this Agreement. Contractor warrants and represents that all of its employees, including any and all prospective employees hired to perform services for the City under this Agreement and the employees of any subcontractor retained by the Contractor to perform a portion of the services under this February 11, 2020 60 64026 1 City of Santa Ana - DRAFT Agreement, are and will be authorized to perform the services contemplated by this Agreement in full compliance with all applicable state and federal laws, rules and regulations, including, but not limited to, the Immigration Nationality Act of 1952 (commencing with Section 1101 of Title 8 of the United States Code), and the Immigration Nationality and the Immigration Reform and Control Act of 1986 (commencing with Section 1324a of Title 8 of the United States Code), as amended. Contractor agrees to verify the legal status of all of its employees and provide documentation of such verification whenever requested by the City. If Contractor discovers that any employee it has retained is not in compliance with Immigration Laws, Contractor agrees to terminate such employee. 12.21 Proprietary Information, Public Records The City acknowledges that a number of the records and reports of the Contractor are proprietary and confidential. Contractor is obligated to permit City inspection of its records on demand and to provide copies to City where requested. City will endeavor to maintain the confidentiality of all proprietary information provided by Contractor. Notwithstanding the foregoing, any documents provided by Contractor to City that are public records may be disclosed pursuant to a proper public records request. Upon receipt of a valid public records request, City shall promptly notify Contractor of said request and, if Contractor elects to pursue legal action to prevent disclosure of any Contractor records and reports, City shall reasonably cooperate in said defense. City may, but shall not be obligated to, file legal action on its own behalf to prevent disclosure of such records and reports. 12.22 Guarantee of Contractor's Performance Pursuant to a guarantee in substantially the form attached as Exhibit 4, a corporation which owns all of the issued and outstanding common stock of Contractor, has agreed to guarantee Contractor's performance of this Agreement. The Guarantee is being provided concurrently with Contractor's execution of this Agreement. February 11, 2020 60E 4-262 City of Santa Ana - DRAFT 13.1 13.2 13.3 13.4 13.5 ARTICLE 13 MISCELLANEOUS AGREEMENTS Entire Agreement This Agreement, including the Exhibits, represents the full and entire Agreement between the parties with respect to the matters covered herein. No verbal agreement or conversation with any office, agent, or employee of the City, either before, during, or after the execution of this contract, shall affect or modify any of the terms or obligations herein contained nor such verbal agreement or conversation entitle the Contractor to any additional payment whatsoever under the terms of this contract. Section Headings The article headings and section headings in this Agreement are for convenience of reference only and are not intended to be used in the construction of this Agreement nor to alter or affect any of its provisions. References to Laws and Other Agreements All references in this Agreement to laws shall be understood to include such laws as they may be subsequently amended or recodified, unless otherwise specifically provided. This Agreement supersedes any and all agreements heretofore entered into by the parties and City. Interpretation This Agreement, including the Exhibits attached hereto, shall be interpreted and construed reasonably and neither for nor against either party, regardless of the degree to which either party participated in its drafting. Agreement This Agreement may not be modified or amended in any respect except by a writing signed by the parties. February 11, 2020 60 E 4- ' 6 3 City of Santa Ana - DRAFT 13.6 Severability If any provision of this Agreement is for any reason deemed to be invalid and unenforceable, the invalidity or unenforceability of such provision shall not affect any of the remaining provisions of this Agreement which shall be enforced as if such invalid or unenforceable provision had not been contained herein. 13.7 Exhibits Each of the Exhibits identified as Exhibit "1" through "7" is attached hereto and incorporated herein and made a part hereof by this reference. 13.8 Non -Waiver Provision Failure of either party to exercise any of the remedies set forth herein within the time periods provided for shall not constitute a waiver of any rights of that party with regard to that failure to perform or subsequent failures to performing whether determined to be a breach, excused performance or unexcused defaults by the other party. 13.9 Attorneys' Fees If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. February 11, 2020 60 643n 6 w City of Santa Ana - DRAFT IN WITNESS WHEREOF, City and Contractor have executed this Agreement as of the day and year first above written. CITY OF SANTA ANA ("City") ATTEST: By CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY EXECUTIVE DIRECTOR OF PUBLIC WORKS ("COMPANY') By: Name: Title: ("COMPANY') By: Name: Title: February 11, 2020 60 64- ' 65 City of Santa Ana - DRAFT EXHIBIT 1 COMPANY'S PROPOSAL February 11, 2020 60B-266 City of Santa Ana - DRAFT EXHIBIT 2 INITIAL MAXIMUM RATES February 11, 2020 606_�67 City of Santa Ana - DRAFT RESIDENTIAL CURBSIDE SERVICE UNIT RATES Base Curbside Service Unit Rates Curbside Service (Any Size Cart) Senior/Mobile Home Low -Volume Curbside Service (35-Gallon Carts) Additional Curbside Service Unit Rates Additional Refuse Cart - Above One Additional Recycling Cart - Above One Additional Organics Cart- Above One Contamination Fee (Third and Subsequent Event) $ 10.77 Damaged Cart Penalty $ 48.46 Steam Cleaning of Curbside Carts $ 26.92 Walk -Out Service (For Other Than Disabled Individuals) $ 26.92 Residential Extra Pick -Up $ 37.42 Bulky Item Pickup Fee (In Excess of 4 Free Pickups per Year and/or 4 items per pickup) $ 47.44 February 11, 2020 606_? 68 City of Santa Ana - DRAFT COMMERCIAL CURBSIDE CART RATES Service Description Total Rate Base Curbside Service Unit Rates Cart Services (Includes 1 Refuse and 1 Recycling Cart, Any Size, Collected Once Per Week) Organics Cart (Any Size. Collected Once Per Week) Additional Curbside Service Unit Rates Additional Refuse Cart - Above One Additional Recycling Cart - Above One Additional Organics Cart - Above One February 11, 2020 60 6-�69 City of Santa Ana - DRAFT COMMERCIAL BIN REFUSE RATES Service Description Total Rate 1 Yard Commercial Refuse Bin 1 Yard Refuse Bin x 1/Week 1 Yard Refuse Bin x 2/Week 1 Yard Refuse Bin x 3/Week 1 Yard Refuse Bin x 4/Week 1 Yard Refuse Bin x 5/Week 1 Yard Refuse Bin x 6/Week 2 Yard Commercial Refuse Bin 2 Yard Refuse Bin x 1/Week 2 Yard Refuse Bin x 2/Week 2 Yard Refuse Bin x 3/Week 2 Yard Refuse Bin x 4/Week 2 Yard Refuse Bin x 5/Week 2 Yard Refuse Bin x 6/Week 3 Yard Commercial Refuse Bin 3 Yard Refuse Bin x 1/Week 3 Yard Refuse Bin x 2/Week 3 Yard Refuse Bin x 3/Week 3 Yard Refuse Bin x 4/Week 3 Yard Refuse Bin x 5/Week 3 Yard Refuse Bin x 6/Week 4 Yard Commercial Refuse Bin 4 Yard Refuse Bin x 1/Week 4 Yard Refuse Bin x 2/Week 4 Yard Refuse Bin x 3/Week 4 Yard Refuse Bin x 4/Week 4 Yard Refuse Bin x 5/Week 4 Yard Refuse Bin x 6/Week 6 Yard Commercial Refuse Bin 6 Yard Refuse Bin x 1/Week 6 Yard Refuse Bin x 2/Week 6 Yard Refuse Bin x 3/Week 6 Yard Refuse Bin x 4/Week 6 Yard Refuse Bin x 5/Week 6 Yard Refuse Bin x 6/Week February 11, 2020 60 6 _� 7 O City of Santa Ana - DRAFT RESIDENTIAL/MULTI-FAMILY BIN REFUSE RATES Service Description �lw Total Rate 1 Yard Residential/Multi-Family Refuse Bin 1 Yard Refuse Bin x 1/Week 1 Yard Refuse Bin x 2/Week 1 Yard Refuse Bin x 3/Week 1 Yard Refuse Bin x 4/Week 1 Yard Refuse Bin x 5/Week 1 Yard Refuse Bin x 6/Week 2 Yard Residential/Multi-Family Refuse Bin 2 Yard Refuse Bin x 1/Week 2 Yard Refuse Bin x 2/Week 2 Yard Refuse Bin x 3/Week 2 Yard Refuse Bin x 4/Week 2 Yard Refuse Bin x 5/Week 2 Yard Refuse Bin x 6/Week 3 Yard Residential/Multi-Family Refuse Bin 3 Yard Refuse Bin x 1/Week 3 Yard Refuse Bin x 2/Week 3 Yard Refuse Bin x 3/Week 3 Yard Refuse Bin x 4/Week 3 Yard Refuse Bin x 5/Week 3 Yard Refuse Bin x 6/Week 4 Yard Residential/Multi-Family Refuse Bin 4 Yard Refuse Bin x 1/Week 4 Yard Refuse Bin x 2/Week 4 Yard Refuse Bin x 3/Week 4 Yard Refuse Bin x 4/Week 4 Yard Refuse Bin x 5/Week 4 Yard Refuse Bin x 6/Week 6 Yard Residential/Multi-Family Refuse Bin 6 Yard Refuse Bin x 1/Week 6 Yard Refuse Bin x 2/Week 6 Yard Refuse Bin x 3/Week 6 Yard Refuse Bin x 4/Week 6 Yard Refuse Bin x 5/Week 6 Yard Refuse Bin x 6/Week February 11, 2020 60 6 _� 7 A City of Santa Ana - DRAFT COMMERCIAL RECYCLING RATES 1 Yard Commercial Bin Recycling Rates 1 Yard Recycling Bin x 1/Week 1 Yard Recycling Bin x 2/Week 1 Yard Recycling Bin x 3/Week 1 Yard Recycling Bin x 4/Week 1 Yard Recycling Bin x 5/Week 1 Yard Recycling Bin x 6/Week 2 Yard Commercial Bin Recycling Rates 2 Yard Recycling Bin x 1/Week 2 Yard Recycling Bin x 2/Week 2 Yard Recycling Bin x 3/Week 2 Yard Recycling Bin x 4/Week 2 Yard Recycling Bin x 5/Week 2 Yard Recycling Bin x 6/Week 3 Yard Commercial Bin Recycling Rates 3 Yard Recycling Bin x 1/Week 3 Yard Recycling Bin x 2/Week 3 Yard Recycling Bin x 3/Week 3 Yard Recycling Bin x 4/Week 3 Yard Recycling Bin x 5/Week 3 Yard Recycling Bin x 6/Week 4 Yard Commercial Bin Recycling Rates 4 Yard Recycling Bin x 1/Week 4 Yard Recycling Bin x 2/Week 4 Yard Recycling Bin x 3/Week 4 Yard Recycling Bin x 4/Week 4 Yard Recycling Bin x 5/Week 4 Yard Recycling Bin x 6/Week Any Size Commercial Recycling Cart Any Size Recycling Cart x 1/Week Any Size Recycling Cart x 2/Week Any Size Recycling Cart x 3/Week Any Size Recycling Cart x 4/Week Any Size Recycling Cart x 5/Week Any Size Recycling Cart x 6/Week February 11, 2020 6 U 6 _� 7 n City of Santa Ana - DRAFT RESIDENTIAL/MULTI-FAMILY RECYCLING RATES 1 Yard Residential/Multi-Family Bin Recycling Rates 1 Yard Recycling Bin x 1/Week 1 Yard Recycling Bin x 2/Week 1 Yard Recycling Bin x 3/Week 1 Yard Recycling Bin x 4/Week 1 Yard Recycling Bin x 5/Week 1 Yard Recycling Bin x 6/Week 2 Yard Residential/Multi-Family Bin Recycling Rates 2 Yard Recycling Bin x 1/Week 2 Yard Recycling Bin x 2/Week 2 Yard Recycling Bin x 3/Week 2 Yard Recycling Bin x 4/Week 2 Yard Recycling Bin x 5/Week 2 Yard Recycling Bin x 6/Week 3 Yard Residential/Multi-Family Bin Recycling Rates 3 Yard Recycling Bin x 1/Week 3 Yard Recycling Bin x 2/Week 3 Yard Recycling Bin x 3/Week 3 Yard Recycling Bin x 4/Week 3 Yard Recycling Bin x 5/Week 3 Yard Recycling Bin x 6/Week 4 Yard Residential/Multi-Family Bin Recycling Rates 4 Yard Recycling Bin x 1/Week 4 Yard Recycling Bin x 2/Week 4 Yard Recycling Bin x 3/Week 4 Yard Recycling Bin x 4/Week 4 Yard Recycling Bin x 5/Week 4 Yard Recycling Bin x 6/Week Any Size Residential/Multi-Family Recycling Cart Any Size Recycling Cart x 1/Week Any Size Recycling Cart x 2/Week Any Size Recycling Cart x 3/Week Any Size Recycling Cart x 4/Week Any Size Recycling Cart x 5/Week Any Size Recycling Cart x 6/Week February 11, 2020 60 273 City of Santa Ana - DRAFT COMMERCIAL ORGANICS RATES 1 Yard Commercial Bin Organics Rates 1 Yard Organics Bin x 1/Week 1 Yard Organics Bin x 2/Week 1 Yard Organics Bin x 3/Week 1 Yard Organics Bin x 4/Week 1 Yard Organics Bin x 5/Week 1 Yard Organics Bin x 6/Week 2 Yard Commercial Bin Organics Rates 2 Yard Organics Bin x 1/Week 2 Yard Organics Bin x 2/Week 2 Yard Organics Bin x 3/Week 2 Yard Organics Bin x 4/Week 2 Yard Organics Bin x 5/Week 2 Yard Organics Bin x 6/Week Any Size Commercial Organics Cart Any Size Organics Cart x 1/Week Any Size Organics Cart x 2/Week Any Size Organics Cart x 3/Week Any Size Organics Cart x 4/Week Any Size Organics Cart x 5/Week Any Size Organics Cart x 6/Week February 11, 2020 60- 74 City of Santa Ana - DRAFT RESIDENTIAL/MULTI-FAMILY ORGANICS RATES � l Yard Residential/Multi-Family Bin Organics Rates 1 Yard Organics Bin x 1/Week 1 Yard Organics Bin x 2/Week 1 Yard Organics Bin x 3/Week 1 Yard Organics Bin x 4/Week 1 Yard Organics Bin x 5/Week 1 Yard Organics Bin x 6/Week 2 Yard Residential/Multi-Family Bin Organics Rates 2 Yard Organics Bin x 1/Week 2 Yard Organics Bin x 2/Week 2 Yard Organics Bin x 3/Week 2 Yard Organics Bin x 4/Week 2 Yard Organics Bin x 5/Week 2 Yard Organics Bin x 6/Week Any Size Residential/Multi-Family Organics Cart Any Size Organics Cart x 1/Week Any Size Organics Cart x 2/Week Any Size Organics Cart x 3/Week Any Size Organics Cart x 4/Week Any Size Organics Cart x 5/Week Any Size Organics Cart x 6/Week February 11, 2020 6 U 6 _� 7 5 City of Santa Ana - DRAFT RESIDENTIAL/MULTI-FAMILY AND COMMERCIAL ADDITIONAL SERVICE RATES Service Description Additional Services Total Rate Extra Pickup Enclosure Charge (Per Bin Per Pickup) >25' Pull -Out Charge (Per Bin Per Pickup) Bin Overage Cleanup Fee $ 39.88 Restart Fee $ 22.18 Commercial Exchange Fee $ 63.22 Roll -Off Trip Charge (Dry Run) $ 75.85 Return Trip Fee $ 75.85 Commercial/Multi-Family Bulky Item Pickup Fee $ 47.44 Cleaning Fee - Commercial/Roll-Off $ 31.97 Bin Relocation Fee $ 53.85 Commercial and Roll -Off Contamination Penalty (2nd and Subsequent Events) $ 53.85 Locking Bin 1/Week Locking Bin 2/Week Locking Bin 3/Week Locking Bin 4/Week Locking Bin 5/Week Locking Bin 6/Week Scout Service 1/Week Scout Service 2/Week Scout Service 3/Week Scout Service 4/Week Scout Service 5/Week Scout Service 6/Week February 11, 2020 6062 061 76 City of Santa Ana - DRAFT PERMANENT ROLL -OFF, COMPACTOR ROLL -OFF, AND TEMPORARY BIN RATES Service Description Any Size Permanent Refuse Roll -Off Total Rate Any Size Permanent Recycling Roll -Off Any Size Permanent Organics Roll -Off Any Size Compactor 3-Yard Temp Bin Refuse Processing Rate Per Ton Recycling Processing Rate Per Ton Organcis Processing Rate Per Ton February 11, 2020 606277 City of Santa Ana - DRAFT OTHER SERVICES February 11, 2020 6062 061 78 City of Santa Ana - DRAFT EXHIBIT 3A EXAMPLE RATE ADJUSTMENT CALCULATION CURBSIDE SERVICE Step One: Calculate Percentage Change in Ind ices F B C Row Atljustment Factor Index Old In -Value New lMmValue Percerachaw In lntlw, jjColumn B/Column Aj-1) 1 Service (lj 24].6W 252.169 1.8% 1 2 Fuel j2j 96.233 118.6]5 23.9% 3 ID.1pali j3j 1$ 33.50 $ 34.18 2.0% Step Twa: Diatomite Weighted Increase D E F Row Rtljurtment Factor Intlex Cost Component Weighted as a% of Component Total (4) percent flange In Index (from Column C) Total Weighted Change jColumn0 xColumn E) 4 Service jl) ]2.0% 1.8% 1.3% 5 Fuel j2) 5.0% 23.3% 1.2% 6 Disposal (3) 23.0% 2.0% 0.5% ] Taal 100.0% 3.0% Step Three: Apply Percentage Change to Rates G H I I Raw Rate Cat<gery Existing Customer Fate Total Weightetl Percentage Chan. )Row ],COWmn F) Rate Inamee or Decrease) Column GxCowmn H) Adjusted Rate (Caumn l+ Column Of 8 Residential Cart Service $ 21.92 9.0% $ 0.64 $ 21.96 9 Senior/ Mobile Home Cart Service $ 18.85 9.0% $ 0.57 $ 19.42 10 Additional Refuse Cart $ low 9.0% $ 0.30 $ 10.30 11 Additional Recycling Cart $ 10.00 9.0% $ 0.30 $ 10.30 12 Additional Yard Waste Cart $ 10.W 9.0% $ 0.30 $ 10.90 13 Curbside Extra Pickup $ 36.49 9.0% $ 1.09 $ 37.58 14 Curbside Contamination Fee $ 10.10 3.0% $ 0.32 $ 10.82 15 Damagetl Cart Penally $ 47.25 3.0% $ 1.42 $ 48.67 16 lCurbside Steam Cleaning $ 26.25 9.0% $ 0.79 $ 27.04 ll IWalk Out Service(Non-Disabletl) $ 26.25 9.0% $ 0.79 $ 27.04 18 Ifidifitional Bulky Item FeeCurbside$ 46.25 9.0% $ 1.39 $ 47.64 Step Four: Re vai Cast Components K L M N 0 Cost Component WegMing Percent Changeg1umn Change in Cart Component Aja"C"CampmreM CastComponents Rewe6htetl to Raw MjurtmeM Factor Index )Column O) CnlMwi (Column C) yori-Kx Weighting Equal Ciag )Column KZ CalumnU )COWmn N+Column M) (1) 72.051 1.8% 1.3% 73.3% 71.2% LService Fuel )2) 5.0% 23.3% 1.2% 6.2% 5.0% 21 113isposal )3) 23.09E 2.0% 0.5% 23.5% 22.9% 22 IT&sl 1W% 103.0% 100.0% )1) Consumer Price Index for All Urban Consumers )CUU ROOOOS4oL1E), all items less food and energy index - average annual change. )2) producer Price Index, W PU0531 not sessonallyadjusted, Fuels and related products and power, Natural Gas - average annual change. )3) per ton disposal rate at Orange County Landfill System. )4) First year based on section 6.4.2 of this Agreement After the first adjustment, weightings come from Column 0 of the previous year's rate adjustment worksheet. February 11, 2020 60 d-1n79 City of Santa Ana - DRAFT EXHIBIT 3B EXAMPLE RATE ADJUSTMENT CALCULATION BIN SERVICE Step One: CaImIMe P-enta a Change in Indices A 0 0.oa MluRmem Fa¢ar IMd GN,. Value New Index Value --,Ebage In lMey(f-lumn aFnlumn Rf-l) 1 ISerxice, (1) 24I.602 252.169 1.8% 2 jFuel (2( 1 96.233 1 110.675 1 23.3% 3 Disposal (3) $ 33.90 $ 34.18 1 2.0% Step Two: Oetermine Wei86tetl lnnerse D I E I F 0.aw MluRmem Faanr Ind. CmtcomparemN%dm1asax of Companem TOW(4) Percarc cMgemlndex (ham Column C) Twl WepMeticbanEelColumn Dx Column E) 4 Service (1) 20.0% 1.8% IA% 5 Fuel (2) 5.0% 23.3% 1.2% 6 Disposal (3) 17.M 2A% 0.3% Total 100.0% 2.4M Step Three: APPIy Pertenta xCban,.RMes G H I 1 Rw Rah U[gary ExhtlryCusbmerRrte TOW We1g=Percm0g. Clu Me (0.Ow 7, Wumn E) Rmlereassm M<ream e(Calun Gx Column H) Afi. Kate (ColumnI Wunnn G) 8 3Cub¢Yard Bin -1 Time Per Week $ 174.26 2.9% $ 5.05 $ 179.31 9 3Cube Yard Bin -2 Time Per Week $ 303.71 2.9% $ 8.81 $ 312.52 10 3Cubk Yard Bin -3 Time Per Week $ 433.03 2.9% $ 12.56 $ 445.59 11 3Cubk Yard Bin -4 Time Per Week $ 562.0 2.9% $ 16.32 $ 528.92 12 3Cubk Yard Bin -S Time Per Week $ 692.01 2.9% $ 20.O7 $ 7ID09 13 3Cubk Yard Bin -6 Time Per Week $ 877.51 2.9% $ 25.45 $ 902.96 Step Four: Re-wegbt Cast Components K L M N O Raw AtlR6meM Factor Inds Cax comparem.41te. (Column D) Per<mt Change In Index (Column C) Umgeln.Carryarem WegMlq (Column K x Column L) MluffetlCmt Camporem WegMlq (Column Kr Column M) ces, parems 0.tweldttMm Equal letter 14 Servke (1) 7& M 1.8% 1.4% 79A% 22.2% 15 Fuel (2) 5.0% 23.3% 1.2% 6.2% 6A% 16 D6-1 (3) 1I.QM 2.0% 0.3% 1T.3% 16.8% lT TOGI 10M 102.. 1D]A1 (1) Consumer Price Intl. for All Urban Consumers (CUUROCCOSA011E), all items essfood and energy index -average annual change. (2) Producer Price Index, WPU0531 not seasonally adjusted, Fuels and related products and poxeq Natural Gas -average annual chage. (3) Per We Disposal rate at Orange County Landfill System. (4) First year hash on S tion 6A.2 of this Agreement After the first adjustment, weightings mme from Column O of the previous year's me adjustment worksheet. February 11, 2020 60 d_2n80 City of Santa Ana - DRAFT EXHIBIT 3C EXAMPLE RATE ADJUSTMENT CALCULATION ROLL -OFF SERVICE Step One: Calculate Percentage Change in Indicesfor "Pull" Component A B C Row ,tl Innen[FMor Intlex OItlIMex Value New lZ..'ae Percent Cline In lrMwr((CUlumn B/CONmn A)-1) 1 Service (1) 247.9 252.169 1.8% 2 IFuel (2) 1 96233 1 118.675 23.3% Step Two: Determine Weighted increase for "Pull" Component D E F Row Adjusment Factor Intlex Cos[ Componerr Weightetl me% of Component Total Percent Chwye In Index (hom Column C) Total WeightedChwye(Column 0 xColumn E) 3 Service (1) 90.0% 1.9% 1.6% 4 Fuel (2) 10.OK 23.3% 2.3% 5 Total 100.0% Step Three: Apply Percentage Change to to "Pull" Rates G H 1 1 Roe, Res. Category Fsistiy Customerlute Total Weighted Percentage Change (Row S, Column F) Rate Increase or Deaeaw(Column Gx Column H) Adjuwd Rate (Column G 4 Column l) 6 10 Cubic Yard Roll -Off $ 268.16 3.9% $ 10.46 $ 278.62 T NCubic Yard Roll -Off $ 268.16 3.9% $ 10.46 $ 278.62 8 40 Cubic Yard Roll -Off $ 268.16 3.9% $ 10.46 $ 278.62 9 10 Cubic Yard Compactor $ 324.04 3.9% $ 12.64 $ 336.0 10 20 Cubic Yard Compactor $ 324.04 3.9% $ 12.64 $ 336.0 11 40 Cubic Yard Compactor $ 324.04 3.9% $ 12.64 $ 336.0 Step Four. Re -weight Cost Components for "Pull" Rates K L M N 1 O Change inCoAComponent Row AtljustmentFMor Index Can Component Weighting Percent Change in Into Wwghnng Adjusted Cost Component Weightin Cuenca mponents Reweightetl (Column 0) (Column C) (Column K xColumn L) (Column K4 Column M) to E,al 100% 12 Service (1) 90.0% 1.9% 1.6% 91.6% 88.2% 13 Fuel (2) 10.0% 23.3% 2.3% 12.3% 11.8% 14 Total 100% 103.9% 100.0% Step Five: Calculate Adjustment to Tonnage Charge P q R 5 Raw Atlluatment Factor Index Existing Wh Per Ton Percent Change in Index I Rate lnoease or Decrease Atljmtai Rate 14) (Row 1, Column C) (Column P x Column q) (Column P 4 Column R) 15 Tonnage Charge (5) $71.49 1.9% $1.29 $72.78 (1) Consumer Price Index for All Urban Consumers (CUUR000MA)LIE), all items less food and energy index -average annual change. (2) Pmdumr Pdce Index, WPV0531 not seasonally adjusted, Fuels and related products and power, Natural Gas -average annual change. (3) For the first rate adjustmera the existing rate perms will be based on the rate proposed bythe contractor. In subsequent years the existing rate per ton will come from Row 15, Column S of the prior years rate adjustment. (4) First year based on Section 6.4.2 ofthis Agreement After the first adjustment, weightings comefrgrn Column O of the previous year's rate adjustmentwmrksheet. (5) Consumer Price Index for All Urban Consumers (CUUROOOOSAO), all items, U5. city average, not seasonally adjusted - average annual change. February 11, 2020 60 d-3n 8 A City of Santa Ana - DRAFT EXHIBIT 3D EXAMPLE RATE ADJUSTMENT CALCULATION OTHER SERVICES Collection and Recycling of Used Motor Oil and Used Motor Oil Filters Row Contractor Compensation Rate Adjustment 1 Existing Contractor Monthly Compensation $ 2,750 2 Percent Change in CPI i'I 1.8% 3 Compensation Increase or Decrease $ 50 4 Adjusted Monthly Compensation $ 2,800 "'Consumer Price Index for All Urban Consumers (CUUR0000SA0LIE) all items less food and energy- average annual change. Emergency Services Row Contractor Compensation Rate Adjustment 1 Hourly Rate for One Crew, One Vehicle $ 110 2 Percent Change in CPI (') 1.8% 3 Compensation Increase or Decrease $ 2 4 Adjusted Monthly Compensation $ 112 "'Consumer Price Index for All Urban Consumers (CUUROOOOSAME) all items less food and energy- average annual change. Grant Administration Row Contractor Compensation Rate Adjustment 1 Hourly Rate $ 50 2 Percent Change in CPI " 1.8% 3 Compensation Increase or Decrease $ 1 4 Adjusted Monthly Compensation $ 51 Consumer Price Index for All Urban Consumers (CUUR0000SA0LIE) all items less food and energy- average annual change. February 11, 2020 60 d=4n 8 n City of Santa Ana - DRAFT EXHIBIT 3E EXAMPLE CALCULATION FOR AVERAGE ANNUAL CHANGE IN PUBLISHED INDICES Consumer Price Index The CPI rate adjustment index is calculated using the "average annual change' as demonstrated in the example below, measured for the 12 months ending December prior to the Rate Year anniversary date compared to the 12 months ending December in the previous year. The Bureau of Labor Statistics publishes the Consumer Price Index for All Urban Consumers for All Items Less Food and Energy - US City Average. In the example below, the average annual index for the 12 months ended December 2017 of 252.169 is entered in Column B, Row 1, "New Index Value," of the example rate adjustment formula in Exhibit 3A, and the average annual index for the 12 months ended December 2016 of 247.602 is entered in Column A, Row 1, "Old Index Value" in Exhibit 3A. This would have resulted in a 1.8%N increase to the service component of the rates as calculated in Column C, Row 1 of Exhibit 3A. Consumer Price Index - All Urban Consumers, U.S. City Average All Items Less Food and Energy, CUUR0000SAME CPI-AII Urban Consumers (Current Series( Original Data Value Series Id: CUUR000o5AOL1E Not Seasonally Adjusted Series Title: Alli& les f0od and ere,,y in U S city.,l ,al A. U5. city average It. Allitens ks food and energy Base Period: 1982-84=100 Years 200810 2018 S.U.: httpsj/dab.bis.goy/tim.s rieVCUUR095JWLIE Year Jan Feb Afar Apr May Jun Jul Aug Sep O,A Nov 13c HALF1 HALF2 Annual Average 2008 213138 213 866 214 866 215 %9 215. 180 215.553 216 045 216 476 216862 217023 216 690 216100 214610 216 533 215.522 2009 216 719 217 685 218 639 219.143 219.128 219 283 219.350 219 5% M 137 M 731 220 384 220 025 218 433 M 037 219.295 201D 220.086 220.602 M %9 221.166 221.193 221 265 221 258 221.551 221907 222079 222.077 221 795 220.895 221 HO 221.337 2011 222.177 223011 2236% T24. 118 224534 T24891 225. 164 225874 226289 226743 226.859 226.y40 223737 226.278 225.008 2012 221237 221865 228135 229.303 229.602 229.879 229.893 230.1% 230]80 231276 231263 231033 228TO 230.140 229.755 2013 231 612 232432 233.%2 233236 233.462 233.640 233.792 234.258 234782 235162 235243 235000 232906 234.7O6 233.806 2014 235.367 236.075 236.913 237509 238.029 238.157 238. 138 238.296 238841 239413 239248 238.A5 237008 238.185 237.892 2015 239248 240083 241067 241802 242.119 242354 242136 242651 243359 243985 244.075 243.A9 241.112 243.381 242.247 2016 244.528 245680 246.358 246.992 2475 24779 247 144 248.2y8 248731 249218 249221 249.134 246.483 248.122 242.1502 2017 250D83 251143 251290 251642 251835 252014 251936 252460 252941 2536M 253.492 253.558 251335 253D04 252.169 Percent Change in Indea: (252.169- 2A7.602(+247.602 1.8% February 11, 2020 60 d=5n 8 3 City of Santa Ana - DRAFT Fuel Index The fuel rate adjustment index is calculated using the "average annual change" as demonstrated in the example below, measured for the 12 months ending December prior to the Rate Year anniversary date compared to the 12 months ending December in the previous year. The Bureau of Labor Statistics publishes the Producer Price Index for Fuels and Related Products and Power - Natural Gas. In the example below, the average annual index for the 12 months ended December 2017 of 118.675 is entered in Column B, Row 2, "New Index Value," of the example rate adjustment formula in Exhibit 3A, and the average annual index for the 12 months ended December 2016 of 96.233 is entered in Column A, Row 2, "Old Index Value' in Exhibit 3A. This would have resulted in a 23.3% increase to the fuel component of rates as calculated in Column C, Row 2 of Exhibit 3A. Producer Price Index - Fuels and Related Products and Power - Natural Gas, WPU0531 PPI Commodity Data Original Data Value Series Id WMU531 Not Seasonally Atljustetl Series Title: PR Commotlity data for Fuels and related products Group: Fuels and relaptl products and power Item: Natural gas Base Gate: 198200 Years: 2008 to 2018 Year Jan Feb Mar Jun Jul Oct Nov Dec Annual 280E 293.4 3324 W27 384.0 4370 449.5 489.9 3557 306.9 25 0 2172 2420 343.975 2009 229.4 1759 146.8 138.7 1356 1402 151.5 1478 123.3 154.0 181.5 1951. 159.983 2010 244.4 2312 2043 168.8 1758 1780 1%4 1943 1577 159.6 1439 1767 185.842 2011 1n 6 1830 1650 178.6 1824 1839 184.0 1825 167.1 158.4 148 3 1,H 4 171.433 2012 132.4 1153 1047 92.3 894 102.1 1156 1259 1154 126.2 1435 152.3 117.925 2013 143.1 138.2 1,H2 163.9 1722 170.1 155.6 1468 149.8 149.5 Iwo 1632 153.883 2014 180.7 2351 2103 191.7 1934 1867 1]9.(i 1595 162.8 160.4 1551 170.5 182.400 2015 1276 1147 1158 101.1 1010 108.8 109.4 112.1 104.5 99.6 846 854 105.383 2016 936 840 64.4 702 750 82.3 1135 1059 1139 1144 Iwo 132.5 96.233 2011 156.2 1330 1038 1204 1198 1203. 115.1 1118 1116 108.8 1066 1167 118.675 Service Coanporent Increase Calwla8on: 1118.675-96.211) -N.233 February 11, 2020 6 U 6 _� 8 w City of Santa Ana - DRAFT EXHIBIT 4 CORPORATE GUARANTY Guaranty THIS GUARANTY (the "Guaranty) is given as of the day of , 2020. THIS GUARANTY is made with reference to the following facts and circumstances: hereinafter ("Owner") is a organized under the laws of the State of which is wholly owned by . (Guarantor). B. Owner and the City have negotiated an Agreement for Collection, processing, and Disposal of Solid Waste dated as of (hereinafter "Agreement'). A copy of this Agreement is attached hereto. C. It is a requirement of the Agreement, and a condition to the City entering into the Agreement, that Guarantor guaranty Owners performance of the Agreement. D. Guarantor is providing this Guaranty to induce the City to enter into the Agreement. NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as follows: 1. Guaranty of the Agreement. Guarantor hereby irrevocably and unconditionally guarantees to the City the complete and timely performance, satisfaction and observation by Owner of each and every term and condition of the Agreement which Owner is required to perform, satisfy or observe. hi the event that Owner fails to perform, satisfy or observe any of the terms and conditions of the Agreement, Guarantor will promptly and fully perform, satisfy or observe them in the place of the Owner or cause them to be performed, satisfied or observed. Guarantor hereby guarantees payment to the City of any damages, costs or expenses which might become recoverable by the City from Owner due to its breach of the Agreement. 2. Guarantor's Obligations Are Absolute. The obligations of the Guarantor hereunder are direct, immediate, absolute, continuing, unconditional and unlimited, and with respect to any payment obligation of Owner under the Agreement, shall constitute a guarantee of payment and not of collection, and are not conditional upon February 11, 2020 6 U _� City of Santa Ana - DRAFT the genuineness, validity, regularity or enforceability of the Agreement. In any action brought against the Guarantor to enforce, or for damages for breach of, its obligations hereunder, the Guarantor shall be entitled to all defenses, if any, that would be available to the Owner in an action to enforce, or for damages for breach of, the Agreement (other than discharge of, or stay of proceedings to enforce, obligations under the Agreement under bankruptcy law). 3. Waivers. Except as provided herein the Guarantor shall have no right to terminate this Guaranty or to be released, relieved, exonerated or discharged from its obligations under it for any reason whatsoever, including, without limitation: (1) the insolvency, bankruptcy, reorganization or cessation of existence of the Owner; (2) the actual or purported rejection by a trustee in bankruptcy of the Agreement, or any limitation on any claim in bankruptcy resulting from the actual or purported termination of the Agreement; (3) any waiver with respect to any of the obligations of the Agreement guaranteed hereunder or the impairment or suspension of any of the City's rights or remedies against the Owner; or (4) any merger or consolidation of the Owner with any other corporation, or any sale, lease or transfer of any or all the assets of the Owner. Without limiting the generality of the foregoing, Guarantor hereby waives the rights and benefits under California Civil Code Section 2819. The Guarantor hereby waives any and all benefits and defenses under California Civil Code Section 2846, 2849, and 2850, including without limitation, the right to require the City to (a) proceed against Owner, (b) proceed against or exhaust any security or collateral the City may hold now or hereafter hold, or (c) pursue any other right or remedy for Guarantor's benefit, and agrees that the City may proceed against Guarantor for the obligations guaranteed herein without taking any action against Owner or any other guarantor or pledgor and without proceeding against or exhausting any security or collateral the City may hold now or hereafter hold. City may unqualifiedly exercise in its sole discretion any or all rights and remedies available to it against Owner or any other guarantor or pledgor without impairing the City's rights and remedies in enforcing this Guaranty. The Guarantor hereby waives and agrees to waive at any future time at the request of the City to the extent now or then permitted by Applicable Law, any and all rights which the Guarantor may have or which at any time hereafter may be conferred upon it, by statute, regulation or otherwise, to avoid any of its obligations under, or to terminate, cancel, quit or surrender this Guaranty. Without limiting the generality of February 11, 2020 606_? 86 City of Santa Ana - DRAFT the foregoing, it is agreed that the occurrence of any one or more of the following shall not affect the liability of the Guarantor hereunder: (a) at any time or from time to time, without notice the Guarantor, performance or compliance herewith is waived; (b) any other of any provision of its Agreement indemnification with respect to Owner's obligations under the Agreement or any security therefore is released or exchanged in whole or in part or otherwise dealt with; or (c) any assignment of the Agreement is effected which does not require the City s approval. The Guarantor hereby expressly waives diligence, presentment, demand for payment or performance, protest and all notices whatsoever, including, but not limited to, notices of non-payment or non-performance, notices of protest, notices of any breach or default, and notices of acceptance of this Guaranty. If all or any portion of the obligations guaranteed hereunder are paid or performed, Guarantor's obligations hereunder shall continue and remain in full force and effect in the event that all or any part of such payment or performance is avoided or recovered directly or indirectly from the City as a preference, fraudulent transfer or otherwise, irrespective of (a) any notice of revocation given by Guarantor or Owner prior to such avoidance or recovery, and (b) payment in full of any obligations then outstanding. 4. Term. This Guaranty is not limited to any period of time, but shall continue in full force and effect until all of the terms and conditions of the Agreement have been fully performed or otherwise discharged and Guarantor shall remain fully responsible under this Guaranty without regard to the acceptance by the City of any performance bond or other collateral to assure the performance of Owner's obligations under the Agreement. Guarantor shall not be released of its obligations hereunder so long as there is any claim by the City against Owner arising out of the Agreement based on Owner's failure to perform which has not been settled or discharged. 5. No Waivers. No delay on the part of the City in exercising any rights under this Guaranty or failure to exercise such rights shall operate as a waiver of such rights. No notice to or demand on Guarantor shall be a waiver of any obligation of Guarantor or right of the City to take other or further action without notice or demand. No modification or waiver of any of the provisions of this Guaranty shall be effective unless it is in writing and signed by the City and by Guarantor, nor shall any waiver be effective except in the specific instance or matter for which it is given. 6. Attorney's Fees. In addition to the amounts guaranteed under this Guaranty, February 11, 2020 6 U 6 _� 8 7 City of Santa Ana - DRAFT Guarantor agrees in the event of Guaranty's breach of its obligations to pay reasonable attorney's fees and all other reasonable costs and expenses incurred by the City in enforcing this Guaranty, or in any action or proceeding arising out of or relating to this Guaranty, including any action instituted to determine the respective rights and obligations of the parties hereunder. 7. Governing Law: Jurisdiction. This Guaranty is and shall be deemed to be a contract entered into in and pursuant to the laws of the State of California and shall be governed and construed in accordance with the laws of California without regard to its conflicts of laws, rules for all purposes including, but not limited to, matters of construction, validity and performance. Guarantor agrees that any action brought by the City to enforce this Guaranty may be brought in any court of the State of California and Guarantor consents to personal jurisdiction over it by such courts. Guarantor appoints the following person as its agents for service of process in California: With a copy by certified mail to: 8. Severability. If any portion of this Guaranty is held to be invalid or unenforceable, such invalidity will have not have an effect upon the remaining portions of this Guaranty, which shall be severable and continue in full force and effect. 9. Binding On Successors. This Guaranty shall inure to the benefit of the City and its successors and shall be binding upon Guarantor and its successors, including transferee(s) of substantially all of its assets and its shareholder(s) in the event of its dissolution or insolvency. 10. Authority. Guarantor represents and warrants that it has the corporate power and authority to give this Guaranty, that its execution of this Guaranty has been authorized by all necessary action under its Article of Incorporation and By -Laws, and February 11, 2020 6 U 6 _� 8 8 City of Santa Ana - DRAFT that the person signing this Guaranty on its behalf has the authority to do so. 11. Notices. Notice shall be given in writing, deposited in the U.S. mail, registered or certified, first class postage prepaid, addressed as follows: To the City: Executive Director of Public Works City of Santa Ana 20 Civic Center Plaza, M-21 Santa Ana, CA 92701 with a copy to the City Counsel at the same address. To the Guarantor: By: (title) By: (title) February 11, 2020 6 U 6 _� 8 9 City of Santa Ana - DRAFT EXHIBIT 5 CONTRACTOR'S FAITHFUL PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: That , a California , as PRINCIPAL, and a Corporation organized and doing business by virtue of the laws of the State of California, and duly licensed for the purpose of making, guaranteeing, or becoming sole surety upon bonds or undertakings required or authorized by the laws of the State of California, as SURETY, are held and firmly bound to City, hereinafter called OBLIGEE, in the penal sum of two -million, five -hundred thousand dollars ($2,500,000) lawful money of the United States, for the payment of which, well and truly to be made, we and each of us hereby bind ourselves, and our and each of our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH THAT: WHEREAS, the above bounden PRINCIPAL has entered into a contract, entitled "COLLECTION AND HANDLING OF SOLID WASTE GENERATED, PRODUCED AND/OR ACCUMULATED IN THE CITY OF SANTA ANA" with City, to do and perform the following work, to wit: Collect, Process and Dispose of Solid Waste generated within City, in accordance with the contract. NOW, THEREFORE, if the above bounden PRINCIPAL shall well and truly perform, or cause to be performed each and all of the requirements and obligations of said contract to be performed by said PRINCIPAL, as in said contract set forth, then this BOND shall be null and void; otherwise it will remain in full force and effect. And the said Surety, for value received hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract or to the work to be performed thereunder or the specifications accompanying the same shall in any wise affect its obligations on this BOND, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the contract or to the work or to the specifications. February 11, 2020 O _� O City of Santa Ana - DRAFT In the event suit is brought by OBLIGEE to enforce the provisions of this bond, said Surety will pay to OBLIGEE a reasonable attorney's fee, plus costs of suit, in an amount to be fixed by the court. IN WITNESS WHEREOF, said PRINCIPAL and said SURETY have caused these presents to be duly signed and sealed this a California Corporation (PRINCIPAL) (SEAL) DAY OF 20 SURETY By: (ATTORNEY IN FACT) (SEAL) February 11, 2020 60 6=� 9 1 City of Santa Ana - DRAFT EXHIBIT 6 NOTARY CERTIFICATION STATE OF CALIFORNIA) COUNTY OF ) ss: On before me, the undersigned, a Notary Public in and for the State of California, personally appeared known to me to be the of Contractor that executed the within instrument on behalf of the Contractor therein named, and acknowledged to me that such Contractor executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in the County of My Commission Expires: this day of Notary Public February 11, 2020 O _� n City of Santa Ana - DRAFT EXHIBIT 7 COUNTY WASTE DISPOSAL AGREEMENT February 11, 2020 606_�93 City of Santa Ana - DRAFT 1 A 1 1 2019 A-2016.027 AMENDMENT TO WASTE DISPOSAL AGREEMENT Between THE COUNTY OF ORANGE, CALIFORNIA and the CITY OF SANTA ANA County Amendment Authorization Date: Z 2016 County Notice Address: Director OC Waste and Recycling 300 N. Flower, Suite 400 Santa Ana, CA 92703 With courtesy copies: City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, CA 92702 FAX 714-647-6515 2016 Amendment to Waste Disposal Agreement 2016 City Amendment Authorization Date: February 16, 2016 City Notice Address 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 City of Santa Ana Public Works Agency 20 Civic Center Plaza (M-21) P.O. Box 1988 Santa Ana, CA 92702 FAX 714-647-5622 60B-294 Section 1. Amendment to Original Waste Disposal Agreement (a) Sections 3.6(C) and 3.6(E) of the Original Waste Disposal Agreement are deleted and replaced in their entirety, as set forth below: "(C) Receipt of Imported Acceptable Waste on a Contract Basis. Throughout the Tenn hereof, the County shall have the right to enter into a contract or other agreement with any municipal or private non -County entity for the delivery of Imported Acceptable Waste on terms. and conditions that the County determines to be necessary to ensure and enhance the viability of the Disposal System for the benefit of the County and the Participating Cities and to generate Net Import Revenues, The County certifies that in its good faithjudgment the contract or other agreement for the delivery of such waste will not materially and adversely affect the ability of the County to receive and dispose of Acceptable Waste from the Participating Cities in accordance with the applicable Disposal Agreements throughout the Term thereof. " "(E) Application and Use of Revenues From Other Users, (1) Throughout the term hereof, all revenues received by the County from the disposal of County Acceptable Waste by the Disposal System, and all revenues received by the County from the disposal of Imported Acceptable Waste by the Disposal System (including amounts received by the County as a result of the failure of contract counterparties to deliver minimum required amounts of Imported Acceptable Waste) , shall be deposited by the County in the County OC Waste & Recycling Enterprise Fund and shall constitute revenues of the Disposal System. Pursuant to the County's Plan of Adjustment, the County is entitled to receive net revenues (after payment of all costs attributable to the acceptance of such Imported Acceptable Waste at the Disposal System) ("Net Import Revenues") from the disposal of Imported Acceptable Waste by the Disposal System. Costs attributable to the disposal of Imported Acceptable Waste include deposits to the Environmental Fund, deposits to closure and postclosure reserves, City host fees (if applicable), operating costs (such as manpower expenditures, equipment, services and supplies expenditures), state surcharges, and a_pro rata share of capital project costs. Net Import Revenues shall be used for the payment of bankruptcy related obligations until payment in full of such bankruptcy related obligations required to be paid from such Net Import Revenues pursuant to the Plan of Adjustment. It is estimated that payment in full of such bankruptcy related obligations required to be paid from such Net Import Revenues pursuant to the Plan of Adjustment will occur by the end of Fiscal Year 2017-18. (2) Until the County's obligation to apply Net Import Revenues for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in full, Net Import Revenues shall be calculated as provided in Section (3.6)(E)(1). For any period after the County's obligation to apply Net Import Revenues for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment has been satisfied in full, Net Import Revenues shall be calculated as follows: (i) in Fiscal Year 2017-18, Net Import Revenues for each ton of Imported Acceptable Waste received shall be equal to the revenues received for the disposal of such ton of Imported Acceptable Waste (excluding any newly established per -ton fees or increases to existing per -ton fees with respect to Imported Acceptable Waste payable to the State, other regulatory agencies or cities in which facilities in the Disposal System are located) in excess of $17.57 per ton; (ii) in Fiscal Year 2018-19, Net Import Revenues for each ton of Imported Acceptable Waste received shall be equal to the revenues received for the disposal of such ton of Imported 2016 Amendment to Waste Disposal Agreement. 60B-295 "SECTION 6.1 EFFECTIVE DATE AND TERM (A) Initial. Term. This Agreement shall continue in full force and effect until June 30, 2025, unless earlier terminated in accordance with its terms, in which event the Term shall be deemed to have expired as of the date of such termination. (B) Oration to Renew. This Agreement shall be subject to renewal by mutual agreement of the parties, on or before June 30, 2023, for an additional term of ten years (the "Renewal Term") on the same terms and conditions as are applicable during the Initial Tenn hereof The City shall give the County written notice of its irrevocable election to renew this Agreement on or before June 30, 2022, If the parties do not renew this Agreement by June 30, 2023, the Agreement shall expire on June 30, 2025." (d) The first sentence of Section 6.1(C) of the Original Waste Disposal Agreement is deleted in its entirety and replaced with the following: "In connection with the panties' right to renew this Agreement for an additional ten-year tern pursuant to Section 6,1(B), the parties shall, on or before June 30, 2023, negotiate an applicable change in the Contract Rate for such renewal term." (e) Appendix 2 of the Original Waste Disposal Agreement is deleted in its entirety and replaced with the form attached hereto. (f) Appendix 5 shall be added to the Original Waste Disposal Agreement as a new appendix, in the form attached hereto. (g) All other terms and conditions of the Original Waste Disposal Agreement shall remain in full force and effect. Section 2. Initial Payment, As consideration for the execution of Amendment by all of the Participating Cities, and subject to the occurrence of the Amendment Effectivo bate pursuant to Section 3, the County agrees to pay, fiom the County OC Waste & Recycling .Enterprise Fund, the Amendment Payment to the Participating Cities listed in Appendix S. The aggregate Amendment Payment shall be $5,400,000, and shall be distributed to the individual Participating Cities (including the City) in the percentages set forth in Appendix 5 by September 30, 20t6. Section 3. Effectiveness of Amendment. The provisions of this Amendment shall not become effective unless and until the Amendment has been executed by the County and all of the Participating Cities. The date on which the County and all of the Participating Cities have executed the Amendment shall be the "Amendment Effective Date." The County shall give written notice of the Amendment Effective Date to the City. In the event that the Amendment Effective Date does not occur by June 30, 2016, this Amendment shall be automatically terminated and the County shall have no obligation to make the Amendment Payment. Section 4. REPRESENTATIONS AND WARRANTIES OF THE PARTIES. Each of the parties to this Amendment represent and warrant that it is a political subdivision of the State of California validly existing under the Constitution and laws of the State and (ii) it has duly authorized the execution and delivery of this Amendment, and has duly executed and delivered the Amendment. 2016 Amendment to Waste Disposal Agreement 60B-296 APPENDIX 2 County Acceptable Waste Tonnage Target to be Used for Purposes of Section 4.2(b) Fiscal Year Tonnage FY 2015-16 2,724,250 FY2016-17 2,681,153 FY 2017-I8 2,638,746 FY 2018-19 2,597,017 FY 2019-20 2,558,522 FY 2020-21 2,520,605 FY 2021-22 2,483,256 FY 2022-23 2,483,256 FY 2023-24 2,483,256 FY 2024-25 2,483,256 2016 Amendment to Waste Disposal Agreement Cumulative 2,724,250 5,405,403 8,044,149 10,641,166 13,199,688 15,720,293 18,203,549 20,686,805 23,170,061 25,653,317 60B-297 A-2009-047 WASTE DISPOSAL AGREEMENT Between THE COUNTY OF ORANGE, CALIFORNIA County Authorization Date: March 24, 2009 County Notice Address: Director Integrated Waste Management Department 320 N. Flower Street, Suite 400 Santa Ana, CA 92703 and the CITY OF SANTA ANA Dated May 4, 2009 City Authorization Date: May 4, 2009 City Notice Address: Executive Director Public Works Agency 20 Civic Center Plaza M-21 Santa Ana, CA 92701 Execution Copy 60B-298 A-2009-047 INSURANCE NOT REQUIRED WORK tJAY PROCEED CLERK OF :,QUNCIL �ATF: J'1N 1 7 2009 County Authorization Date: March 24.2009 County Notice Address: WASTE DISPOSAL AGREEMENT Between THE COUNTY OF ORANGE, CALIFORNIA Director Integrated Waste Management Department 320 N. Flower Street, Suite 400 Santa Ana, CA 92703 and the CITY OF SANTA ANA Dated May 4, 2009 City Authorization Date: May 4, 2009 City Notice Address: Executive Director Public Works Agency 20 Civic Center Plaza M-21 Santa Ana, CA 92701 Execution Copy 60B-299 TABLE OF CONTENTS Pave ARTICLE I DEFINITIONS AND INTERPRETATION Section t.I DEFINITIONS ................................ .... ............. ............ .... ...... ............. ........... ......... .I.............. .......... � Section1.2INTERPRETATION........................... ...... ................ ............ ....... .._............... ................................... 7 ARTICLE 11 REPRESENTATIONS AND WARRANTIES Section 21 REPRESENTATIONS AND WARRANTIES OF THE CITY........................................................8 Section 2.2 REPRESENTATIONS AND WARRANTIES OF THE COUNTY .......................... .......... .... ........:9 ARTICLE III DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE Section 3.1 DELIVERY OF WASTE..................................................................................................................9 Section 3.2 PROVISION OF DISPOSAL SERVICES BY THE COUNTY ......... ................. .........I .......... I...... I I Section 3.3 COUNTY RIGHT TO REFUSE WASTE...................................................................................... 12 Section 3.4 UNINCORPORATED AREA ACCEPTABLE WASTE...............................................................13 Section 3.5 MISCELLANEOUS OPERATIONAL MATTERS.......................................................................14 Section 3.6 OTHER USERS OF THE DISPOSAL SYSTEM..........................................................................14 Section 3.7 COUNTY PROVISION OF WASTE DIVERSION SERVICES...................................................15 ARTICLE 1V CONTRACT RATE Section 4.1 CHARGING AND SECURING PAYMENT OF CONTRACT RATE.........................................15 Section 4.2 CONTRACT RATE........................................................................................................................ 15 Section 4.3 RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE...........................................21 Section 4.4 BILLING OF THE CONTRACT RATE........................................................................................21 Section 4.5 RESTRICTED RESERVES............................................................................................................21 Section 4.6 AUDITED FINANCIAL STATEMENTS......................................................................................22 Section 4.7 ANNUAL UPDATE OF TEN-YEAR FINANCIAL PROJECTION.............................................22 ARTICLE V BREACH, ENFORCEMENT AND TERMINATION Section 5.1 BREACH ..................................................................... .......................................................... I........ 23 Section 5.2 CITY CONVENIENCE TERMINATION.....................................................................................23 Section 5.3 TERMINATION.............................................................................................................................23 Section5.4 NO WAIVERS................................................................................................................................24 Section 5.5 FORUM FOR DISPUTE RESOLUI'ION........................_...........................................................24 ARTICLE VI TERM Section 6.1 EFFECTIVE DATE AND TERM..................................................................................................24 Section 6.2 COMMENCEMENT DATE...........................................................................................................25 Execution Copy 60B-300 ARTICLE VII GENERAL PROVISIONS Section 7.1 OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM.......................................26 Section 7.2 UNCONTROLLABLE CIRCUMSTANCES GENERALLY........................................................26 Section7.3 INDEMNIFICATION.....................................................................................................................27 Section 7.4 RELATIONSHIP OF THE PARTIES............................................................................................27 Section7.5 LIMITED RECOURSE..................................................................................................................27 Section 7.6 PRE-EXISTING RIGHTS AND LIABILITIES.............................................................................27 Section7.7 NO VESTED RIGHTS ...................................................................................................................28 Section 7.8 LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSING ..........................28 Section 7.9 NO CONSEQUENTIAL OR PUNITIVE DAMAGES..................................................................28 Section7.10 AMENDMENTS............................................................................................................................28 Section 7.11 NOTICE OF LITIGATION............................................................................................................28 Section 7.12 FURTHER ASSURANCES...........................................................................................................28 Section 7.13 ASSIGNMENT OF AGREEMENT...............................................................................................28 Section 7.14 INTEREST ON OVERDUE OBLIGATIONS...............................................................................28 Section7.15 BINDING EFFECT........................................................................................................................28 Section7.16 NOTICES...................................................._..................................................................................28 APPENDIX I ESTIMATED ANNUAL TONNAGE APPENDIX 2 CUMULATIVE, TONNAGE TARGETS APPENDIX 3 CUMULATIVE CAPITAL COSTS APPENDIX 4 FORM OF HAULER ACKNOWLEDGEMENT F'xecution Copy 60B-301 WASTE DISPOSAL AGREEMENT THIS WASTE DISPOSAL AGREEMENT is made and dated as of the date indicated on the cover page hereof between the County of Orange, a political subdivision of the State of California (the "County"), and the City designated on the cover page of this Agreement, a general law or charter city and political subdivision of the State of California (the `City"). RECITALS The County owns, manages and operates a sanitary landfill system for the disposal of municipal solid waste generated by the cities and the unincorporated area within the County (the "Disposal System'). The Disposal System includes three active landfills and four regional household hazardous waste collection centers. The Disposal System is used for the disposal of municipal solid waste which is not reused, recycled or otherwise diverted from landfill disposal, pursuant to the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code) (the "Act"). The City, in the exercise of its police power and its powers under the Act, has entered into a franchise or other agreement with or issued permits or licenses to one or more private haulers for the collection and disposal of municipal solid waste generated within the City. A significant portion of municipal solid waste generated within the City historically has been and currently is delivered by such hauler or haulers to the County for disposal in the Disposal System. In 1997, the City and the County entered in a waste disposal agreement (the "Original WDA"), pursuant to which the County agreed to provide disposal capacity for waste generated in the City, and the City agreed to deliver or cause the delivery of waste generated in the City to the Disposal System, as more specifically set forth in, and subject to the terms and conditions of, the Original WDA. The Original WDA, as amended, will expire by its terms on June 30, 2010, unless the City and the County agree to renew the Original WDA. The City and the County desire to enter into this agreement to extend, amend and restate the Original WDA, on the terms and conditions set forth herein. The County and City acknowledge that the Original WDA shall remain in full force and effect until the Commencement Date. The City has determined that the execution of this Agreement by the City will serve the public health, safety and welfare of the City by providing greater disposal rate stability, more predictable and reliable long-term disposal service, and the continuation of sound environmental management. The County has determined that the execution by the County of this Agreement will serve the public health, safety and welfare by providing a more stable, predictable and reliable supply of municipal solid waste and the resulting service payment revenue to the Disposal System, thereby enabling the County to plan, manage, operate and finance improvements to the Disposal System on a more prudent and sound long term, businesslike basis consistent with its obligations to the State and the holders of obligations secured by its Disposal System. Official action approving this Agreement and determining it to be in the public interest and authorizing its execution and delivery was duly taken by the County on the County authorization date indicated on the cover page hereof. Official action approving this Agreement and determining it to be in the public interest and authorizing its execution and delivery was duly taken by the City on the City authorization date indicated on the cover page hereof. It is, therefore, agreed as follows: Execution Copy 60B-302 ARTICLE I DEFINITIONS AND INTERPRETATION SECTION 1.1 DEFINITIONS. As used in this Agreement, the following terms shall have the meanings set forth below. - "Acceptable Waste" means all garbage, refuse, rubbish and other materials and substances discarded or rejected as being spent, useless, worthless or in excess to the owners at the time of such discard or rejection and which are normally disposed of by or collected from residential (single family and multi -family), commercial, industrial, governmental and institutional establishments and which are acceptable at Class III landfills under Applicable Law. "Act" means the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code), as amended, supplemented, superseded and replaced from time to time. "Agreement" means this Waste Disposal Agreement between the County and the City as the same may be amended or modified from time to time in accordance herewith. "Appendix" means an appendix to this Agreement, as the same may be amended or modified from time to time in accordance with the terms hereof "Applicable Law" means the Act, the Orange County Code, CERCLA, RCRA, CEQA, any Legal Entitlement and any federal or state rule, regulation, requirement, guideline, permit, action, determination or order of any Governmental Body having jurisdiction, applicable from time to time to the siting, design, permitting, acquisition, construction, equipping, financing, ownership, possession, operation or maintenance of the Disposal System, the transfer, handling, transportation and disposal of Acceptable Waste, Unacceptable Waste, or any other transaction or matter contemplated hereby (including any of the foregoing which concern health, safety, fire, environmental protection, mitigation monitoring plans and building codes). "Board" means the California Integrated Waste Management Board. "Capital Costs" means all costs of the Disposal System that are classified as capital costs for purposes of the budget of the Department in accordance with procedures established by the County of Orange Auditor - Controller in compliance with the California State Controller's Manual, including but not limited to all of the categories of costs of the Disposal System reported as "Buildings and Improvements, and Infrastructure" (Object Code 4200) or "Equipment' (Object Code 4000) in the County of Orange — Chart of Accounts, or any successor accounting or reporting system utilized by the County. "CEQA" means the California Environmental Quality Act, codified at Cal. Pub. Res. Code Section 21000 et .seq. as amended or superseded, and the regulations promulgated thereunder. "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. Section 9601 el seq., as amended or superseded, and the regulations promulgated thereunder. "Change in Law" means any of the following events or conditions which has a material and adverse effect on the performance by the parties of their respective obligations under this Agreement (except for payment obligations), or on the siting, design, penmitting, acquisition, construction, equipping, financing, ownership, possession, operation or maintenance of the Disposal System or other matters to which Applicable Law applies: (1) the enactment, adoption, promulgation, issuance, material modification or written change in administrative or judicial interpretation on or after the Commencement Date of any Applicable Law (other than Applicable Law enacted by the County); (2) the order or judgment of any Governmental Body (other than the County), on or after the Commencement Date, to the extent such order or judgmentis not the result of willful or negligent action, error or 2 Execution Copy 60B-303 omission or lack of reasonable diligence of the County or of the City, whichever is asserting the occurrence of a Change in Law; provided, however, that the contesting in good faith or the failure in good faith to contest any such order or judgment shall not constitute or be construed as such a willful or negligent action, error or omission or lack of reasonable diligence; or (3) the denial of an application for, delay in the review, issuance or renewal of, or suspension, termination, interruption, imposition of a new or more stringent condition in connection with the issuance, renewal or failure of issuance or renewal on or after the Commencement Date of any Legal Entitlement to the extent that such denial, delay, suspension, termination, interruption, imposition or failure materially and adversely interferes with the performance of this Agreement, if and to the extent that such denial, delay, suspension, termination, interruption, imposition or failure is not the result of willful or negligent action, error or omission or a lack of reasonable diligence of the County or of the City, whichever is asserting the occurrence of a Change in Law; provided, however that the contesting in good faith or the failure in good faith to contest any such denial, delay, suspension, termination, interruption, imposition or failure shall not be construed as such a willful or negligent action, error or omission or lack of reasonable diligence. A "Change in Law" shall include but not be limited to any new or revised requirements relating to the funding or provision of disposal services, including but not limited to any regulations for disposal operations or activities associated with the remediation, closure, funding or monitoring of closed sites with respect to facilities comprising the Disposal System, or facilities which the County previously utilized to provide waste disposal, transfer, recycling, processing or other waste related activities. "City" means, as applicable, the city or Sanitary District designated on the cover page of this Agreement and party to this Agreement. "City Acceptable Waste" means all Acceptable Waste which was originally discarded by the first generator thereof within the geographical limits of the City, and Residue from the foregoing wherever produced, whether within or outside the City (or Tonnage equivalencies of such Residues, as and to the extent provided in subsection 3.1(C) hereof). "Commencement Date" means the date on which the obligations of the parties hereto commence, established as provided in Section 6.2(B) hereof. "Contract Date" means the first date on which this Agreement has been executed by both parties hereto. "Contract Rate" has the meaning specified in Section 4.2 hereof. "Contract Year" means the fiscal year commencing on July I in any year and ending on June 30 of the following year. "Controllable Waste" means all City Acceptable Waste with respect to which the City has the legal or contractual ability to determine the disposal location therefor and which is: (l) Non -Recycled City Acceptable Waste; (2) not generated from the operations of the Governmental Bodies which, under Applicable Law, have the independent power to arrange for the disposal of the waste they generate; and (3) collected and hauled by Franchise Haulers. "County" means the County of Orange, a political subdivision of the State of California and party to this Agreement. "County Plan" means the integrated waste management plan of the County approved by the Board pursuant to the Act as in effect from time to time. Rxecudon Copy 60B-304 "County Acceptable Waste" means Acceptable Waste generated in the County. "County OC Waste & Recycling Enterprise Fund" means the waste management enterprise fund established and managed by the County pursuant to Section 25261 of the Government Code separate from its other funds and accounts for receipts and disbursements in connection with the Disposal System. "County -wide Recycling Services" has the meaning set forth in subsection 3.7(A) hereof "Cumulative Tonnage Target" for any given Contract Year means the amount specified in Appendix 2 hereto with respect to such Contract Year. "Department" means OC Waste & Recycling, and any agency, department or other Governmental Body which succeeds to the duties and powers thereof. "Disposal Agreements" means each of the waste disposal agreements entered into between the County and any city within the County, Sanitary District or operator of any Transfer Station located in the County in accordance herewith. "Disposal Services" means the solid waste disposal services to be provided by the County pursuant to the Service Covenant and otherwise hereunder. "Disposal System" means the Orange County Waste Disposal System which includes solid waste disposal operations at three active landfills (Olinda Alpha, Frank R. Bowerman and Prima Deshecha); four regional Household Hazardous Waste Collection Centers; as well as services, such as monitoring and other activities, at closed refuse stations formerly operated by the County, as appropriate under Applicable Law. "Environmental Fund" means the fund or funds held by the County to pay unanticipated costs of environmental mitigation, remedialion or liability. "Franchise Hauler" means any hauler or collector who provides Acceptable Waste collection services within the City pursuant to, or under authority granted by, a permit, contract, franchise or other agreement with the City. The tern Franchise Hauler includes the City itself if Acceptable Waste collection and transportation services are provided directly by City operated municipal collection service. "Governmental Body" means any federal, State, county, city or regional legislative, executive, judicial or other governmental board, agency, authority, commission, administration, court or other body, or any officer thereof acting within the scope of his or her authority. "Hazardous Substance" has the meaning given such term in CERCLA, the Carpenter -Presley -Tanner Hazardous Substance Account Act (California Health and Safety Code Section 25300 of seq.), and Titles 22 and 26 of the California Code of Regulations and other regulations promulgated thereunder. "Hazardous Waste" means (a) any waste which by reason of its quality, concentration, composition or physical, chemical or infectious characteristics may do either of the following: cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness, or pose a substantial threat or potential hazard to human health or the environment, or any waste which is defined or regulated as a hazardous waste, toxic substance, hazardous chemical substance or mixture, or asbestos under Applicable Law, as amended from time to time including, but not limited to: (1) the Resource Conservation and Recovery Act and the regulations contained in 40 CFR Parts 260-281; (2) the Toxic Substances Control Act (15 U.S.C. Sections 2601 et seq.) and the regulations contained in 40 CFR Parts 761-766; (3) the California Health and Safety Code, Section 25117 (West 1992 & Supp. 1996); (4) the California Public Resources Code, Section 40141 (West 1996); and (5) future additional or substitute Applicable Law pertaining to the identification, treatment, storage or disposal of toxic substances or hazardous wastes; or (b) radioactive materials which are source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et .req.) and the regulations contained in 10 CFR Part 40. 4 Execution Cnpy 60B-305 "Imported Acceptable Waste" means Acceptable Waste that is generated outside of the geographical boundaries of the County and delivered to the Disposal System. "Independent Haulers" means those waste collection/hauler companies primarily engaged as a principal business in the collection and transportation of municipal solid waste generated in the County of Orange which are not obligated to deliver County Acceptable Waste to the Disposal System pursuant to a franchise, contract, permit or other authorization with a city in the County. "Initial Term" has the meaning specified in Section 6.1(A) hereof. "Legal Entitlement" means all permits, licenses, approvals, authorizations, consents and entitlements of whatever kind and however described which are required under Applicable Law to be obtained or maintained by any person with respect to the Disposal System or the performance of any obligation under this Agreement or the matters covered hereby. "Legal Proceeding" means every action, suit, litigation, arbitration, administrative proceeding, and other legal or equitable proceeding having a bearing upon this Agreement. "Loss -and -Expense" means any and all loss, liability, obligation, damage, delay, penalty, judgment. deposit, cost, expense, claim, demand, charge, tax, or expense, including all fees and costs. "Net Import Revenues" has the meaning ascribed thereto in Section 3.6(E), "Non -Recycled City Acceptable Waste" means all City Acceptable Waste other than Recycled City Acceptable Waste. "Overdue Rate" means the maximum rate of interest permitted by the laws of the State, if applicable, or the prime rate established from time to time by the Bank of America, N.A. or its successors and assigns, plus 2%, whichever is lower. "Participating City" means any city or Sanitary District executing a Disposal Agreement in accordance with Section 3.6(A) hereof and meeting all requisite conditions to the Commencement Date thereof. "Plan of Adjustment" means the County's Modified Second Amended Plan of Adjustment, confirmed by the United States Bankruptcy Court Central District of California in that Conformed Order Confirming Modified Second Amended Plan of Adjustment, Sled May 17, 1996. "Posted Disposal Rate" means the per ton tipping fee charged by the County for the disposal of solid waste at the Disposal System by parties which are not entitled to disposal service at the Contract Rate pursuant to this Agreement. "Prohibited Medical Waste" means any medical or infectious waste prohibited or restricted under Applicable Law from being received by or disposed at the Disposal System. "Qualified Household Hazardous Waste" means waste materials determined by the Board, the Department of Health Services, the State Water Resources Control Board, or the Air Resources Board to be: (1) Of a nature that they must be listed as hazardous in State statutes and regulations; (2) Toxic/ignitable/corrosive/reactive; and (3) Carcinogenic/mutagenic/teratogenic; which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall not include Unacceptable Waste. Execution Copy 60B-306 "Recycled City Acceptable Waste" means any otherwise Controllable Waste which is separated from Acceptable Waste by the generator thereof or by processing and which is `recycled" within the meaning of Section 40180 of the Public Resources Code. "Renewal Term" has the meaning specified in Subsection 6.1(B) hereof. "Residue" means any material remaining from the processing, by any means and to any extent, of City Acceptable Waste or Recycled City Acceptable Waste; provided, however, that Residue shall not include minimal amounts of material remaining after such processing (which minimal amounts shall in no event exceed 10% of the amount of such City Acceptable Waste or Recycled City Acceptable Waste prior to processing). "Resource Conservation and Recovery Act" or "RCRA" means the Resource Conservation and Recovery Act, 42 U.S.C.A. Section 6901 et seq., as amended and superseded. "Restricted Reserves" has the meaning specified in Section 4.5. "Sanitary Districts" means the sanitary districts in the County formed pursuant to the Sanitary District Act of 1923, codified at Cal. Ann. Health & Safety Code Section 6400 et seq., as amended, supplemented, superseded and replaced from time to time. "Self -Hauled Waste" means City Acceptable Waste collected and hauled by Self -Haulers. "Self -Hauler" means any person not engaged commercially in waste haulage who collects and hauls Acceptable Waste generated from residential or business activities conducted by such person. "Service Coordinator" means the service coordinator for either pasty designated pursuant to subsection 35(C) hereof "Service Covenant" means the covenants and agreements of the County set forth in Sections 3.2 and 3.3 hereof. "Source -Separated Household Hazardous Waste" means Qualified Household Hazardous Waste which has been segregated from Acceptable Waste originating or generated within the geographical jurisdiction of the City at the source or location of generation- "Source- Separated Household Hazardous Waste Disposal System" means the collection centers, facilities, contracts and other arrangements owned or administered by the County for the receipt, handling and disposal of Sourer -Separated Household Hazardous Waste. "State" means the State of California. "Term" shall mean the Term of this Agreement. "Ton" means a "short ton" of 2,000 pounds. "Transfer Station" means any materials recovery facility, composting facility, intermediate processing facility, recycling center, transfer station or other waste handling or management facility to which solid waste collected for the City is delivered for processing before disposal in the Disposal System. "Unacceptable Waste" means Hazardous Waste; Hazardous Substances; Prohibited Medical Waste; Qualified Household Hazardous Waste separated from Acceptable Waste; explosives, ordnance, highly flammable substances, and noxious materials and lead -acid batteries (except if delivered in minimal quantities); drums and closed containers; liquid waste, oil, human wastes; machinery and equipment from commercial or industrial sources, such as hardened gears, shafts, motor vehicles or major components thereof, agricultural equipment, trailers, marine Execution Copy 60B-307 vessels and steel cable; hot loads; and any waste which the Disposal System is prohibited from receiving under Applicable Law. "Uncontrollable Circumstance" means any act, event or condition affecting the Disposal System, the County, the City, or any of their Franchise Haulers, contractors or suppliers to the extent that it materially and adversely affects the ability of either party to perform any obligation under the Agreement (except for payment obligations), if such act, event or condition is beyond the reasonable control of and is not also the result of the willful or negligent act, error or omission or failure to exercise reasonable diligence on the part of the party relying thereon as justification for not performing an obligation or complying with any condition required of such party under the Agreement; provided, however, that the contesting in good faith or the failure in good faith to contest such action or inaction shall not be construed as willful or negligent action or a lack of reasonable diligence of either party. Examples of Uncontrollable Circumstances are: (1) an act of God, landslide, lightning, earthquake, fire, explosion, flood, sabotage or similar occurrence, acts of a public enemy, extortion, war, blockade or insurrection, riot or civil disturbance; and (2) a Change in Law. "Unincorporated Area" means those portions of the County which are not contained within the jurisdictional boundaries of incorporated cities. "Unincorporated Area Acceptable Waste" means Acceptable Waste originating from or generated within the Unincorporated Area. "Unrestricted Reserves" means cash and other reserves of the Disposal System which are not Restricted Reserves. "Waste Disposal Covenant" means the covenants and agreements of the City set forth in Section 3.1 hereof. SECTION 1.2 INTERPRETATION. In this Agreement, unless the context otherwise requires: (A) References Hereto. The terms "hereby", "hereof', "herein", "hereunder" and any similar terms refer to this Agreement, and the terns "hereafter" means after, and the term "heretofore" means before, the Contract Date. (B) Gender and Plurality. Words of the masculine gender mean and include correlative words of the feminine and neuter genders and words importing the singular number mean and include the plural number and vice versa. (C) Persons. Words importing persons include firms, companies, associations, general partnerships, limited partnerships, trusts, business trusts, corporations and other legal entities, including public bodies, as well as individuals. (D) Headines. The table of contents and any headings preceding the text of the Articles, Sections and subsections of this Agreement shall be solely for convenience of reference and shall not constitute a part of this Agreement, nor shall they affect its meaning, construction or effect. (E) No Third Party Beneficiaries. Nothing in this Agreement is intended to confer on haulers or any other person other than the parties hereto and their respective permitted successors and assigns hereunder any rights or remedies under or by reason of this Agreement. (F) Counterparts. This Agreement may be executed in any number of original counterparts. All such cormtetparts shall constitute but one and the same Agreement. Fwcuuon Copy 60B-308 (G) Applicable Law. This Agreement shall be governed by and construed in accordance with the Applicable Laws of the State of California. (H) Severability. If any clause, provision, subsection, Section or Article of this Agreement shall be ruled invalid by any court ofjurisdiction, then the parties shall: (1) promptly meet and negotiate a substitute for such clause, provision, subsection, Section or Article which shall, to the greatest extent legally permissible, effect the intent of the parties therein; (2) if necessary or desirable to accomplish item (1) above, apply to the court having declared such invalidity for a judicial construction of the invalidated portion of this Agreement; and (3) negotiate such changes in, substitutions for or additions to the remaining provisions of this Agreement as may be necessary in addition to and in conjunction with items (1) and (2) above to effect the intent of the parties in the invalid provision. The invalidity of such clause, provision, subsection, Section or Article shall not affect any of the remaining provisions hereof, and this Agreement shall be construed and enforced as if such invalid portion did not exist, unless such invalidity frustrates the underlying primary purpose of the Agreement. (1) Integration: Preservation of Certain Agreements. This Agreement contains the entire agreement between the parties with respect to the transactions contemplated hereby. This Agreement shall completely and fully supersede all prior understandings and agreements between the Parties with respect to such transactions; provided, however, that this Agreement shall not supersede the following agreements: I) MOU, dated March 10, 1992, between the City of Brea and the County of Orange regarding the Olinda Alpha Landfill as amended on April 6, 1993 and November 29, 1994; 2) MOU, dated May 11, 1995, between the City of Brea and the County of Orange regarding importation of out -of -County waste to the Olinda Alpha Landfill; 3) Settlement Agreement, dated August 1, 1984, between the City of Irvine and the County of Orange regarding the Bee Canyon Landfill (currently called Frank R. Bowerman Landfill); 4) MOU, dated May 16, 1995, between the City of Irvine and the County of Orange regarding importation of out -of -County waste to the Frank R. Bowerman Landfill; 5) MOU, dated September 12, 1995, and amended November 21, 1995, between the City of San Juan Capistrano and the County of Orange regarding importation of out -of -County waste to the Prima Deshecha Landfill; 6) MOU, dated July 1, 1997, between the City of San Clemente[, the Orange County Flood Control District] and the County of Orange regarding the Prima Deshecha Landfill; and City of Irvine. 7) Cooperative Agreement, dated August 15, 2006, between the County and the (J) Recitals. The recitals to this Agreement are not intended to bind the parties hereto. In the event of a conflict between the recitals and the operative provisions of this Agreement, the operative provisions shall prevail. The recitals shall not be used to interpret the provisions of the Agreement. ARTICLE 11 REPRESENTATIONS AND WARRANTIES SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF THE CITY. The City represents and warrants that - (A) Existence. The City is a general law or charter city validly existing under the Constitution and laws of the State. 8 Execution Copy 60B-309 (B) Due Authorization. The City has duly authorized the execution and delivery of this Agreement, and this Agreement has been duly executed and delivered by the City. SECTION 2.2 REPRESENTATIONS AND WARRANTIES OF THE COUNTY. The County represents and warrants that: (A) Existence. The County is a political subdivision of the State of California validly existing under the Constitution and laws of the State_ (B) Due Authorization. The County has duly authorized the execution and delivery of this Agreement, and this Agreement has been duly executed and delivered by the County. ARTICLE III DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE SECTION 3.1 DELIVERY OF WASTE. (A) Waste Disposal Covenant. Subject to the occurrence of the Commencement Date and throughout the Term of this Agreement, the City shall exercise all legal and contractual power and authority which it may possess from time to time to deliver or cause the delivery of all Controllable Waste to the Disposal System in accordance herewith. (B) Recycled City Acceptable Waste. The parties hereto acknowledge the responsibility of the City to meet the recycling and landfill diversion goals contained in the Act. Nothing in this Agreement is intended or shall be interpreted to prohibit or impair the ability of the City to meet such responsibilities, or to restrict the right of the residents, businesses or organizations in the City to practice source separation, recycling, composting or other materials recovery activities, or to restrict the right of the City to conduct, sponsor, encourage or require such activities in any form. No reduction in the amount of Controllable Waste generated in the City and delivered to the Disposal System by or on behalf of the City which may result from any such source separation or recycling program shall cause the City any liability hereunder (other than potential adjustment to the Contract Rate to the extent provided in Article IV hereof) and shall not constitute a breach of this Agreement. (C) Waste Delivered to Transfer Station. All Residue from any processing of Controllable Waste by materials recovery, composting, recycling or other means, wherever performed, shall constitute Controllable Waste and be subject to the Waste Disposal Covenant. Where City Acceptable Waste is processed at a facility which concurrently processes other Acceptable Waste in a manner which produces commingled residue which cannot be traced to a geographic source, generic residues from such facility in Tonnage equal to the residues that would have been produced had City Acceptable Waste only been processed at the facility shall constitute Controllable Waste and be subject to the Waste Disposal Covenant. Any City Acceptable Waste or material derived or segregated therefrom which is held in storage and asserted by the possessor thereof to constitute Recycled City Acceptable Waste awaiting sale or distribution to the secondary materials markets shall constitute Controllable Waste if, when and to the extent that the storage or diversion thereof can be reasonably deemed to constitute an evasion of the Waste Disposal Covenant rather than generally recognized, accepted and prevailing practice in the Southern California materials recovery and recycling industry conducted in accordance with Applicable Law, In order for the owner and/or operator of a transfer station to be entitled to deliver Acceptable Waste from a Participating City to the Disposal System for the Contract Rate as provided in Article IV, such owner and/or operator mustexecute a direct agreement with the County, acknowledging and agreeing to comply with the obligation of the Participating City to cause the delivery of all Controllable Waste to the Disposal System pursuant to this Agreement. In addition, the County shall be authorized to implement procedures to determine if Acceptable Waste delivered by the owners or operators of Transfer Stations is entitled to utilize the Disposal System for the Contract Rate. Such procedures may include requiring Transfer Stations to certify, under penalty of perjury, the source of any such Acceptable Waste. If necessary, the County may require that, in order to qualify for use of the Disposal System for the Contract Rate, Transfer Stations must deliver Controllable Waste in loads containing only Controllable Waste, and not commingled with Acceptable Waste from entities which are not Participating Cities or Participating Independent Haulers. Execution Copy 60B-310 (D) Power to Obligate Waste Disposal and Comply with this Agreement. On or before the Commencement Date, (i) any City franchise, contract, lease, or other agreement which is lawfully in effect relating to or affecting Controllable Waste shall provide, or shall have been amended to provide, that the City shall have the right without material restriction on and after the Commencement Date to direct the delivery of all Controllable Waste to a disposal location selected by the City (whether or not such Controllable Waste is delivered to a transfer station as an intermediate step prior to landfill disposal) and otherwise to comply with its obligations under this Agreement with respect to Controllable Waste and Franchise Haulers, and (it) the City shall designate the Disposal System as the disposal location pursuant to such franchise, contract, lease or other agreement. On and after the Commencement Date and throughout the Term of this Agreement the City (a) shall not enter into any franchise, contract, lease, agreement or obligation, issue any permit, license or approval, or adopt any ordinance, resolution or law which is materially inconsistent with the requirements of the Waste Disposal Covenant, and (b) shall maintain non-exclusive or exclusive franchises or other contractual arrangements over any City Acceptable Waste which, as of the Contract Date, is subject to non-exclusive or exclusive franchise or other contractual arrangements. The City agrees that the County shall be a third party beneficiary of the obligation of Franchise Haulers to deliver Controllable Waste to the Disposal System, and may directly enforce such obligation through any legal means available. The City shall notify in writing each Franchise Hauler of the County's third party beneficiary rights. (E) Waste Flow Enforcement. (1) The City, in cooperation with the Department, shall establish, implement, carry out and enforce a waste flow enforcement program which is sufficient to assure the delivery of all Controllable Waste to the Disposal System pursuant to and in accordance with the Waste Disposal Covenant for disposal at the times and in the manner provided herein. The waste flow enforcement program shall consist of amending City franchises, permits or authorizations with all Franchise Haulers, to the extent required by this Section and to the extent allowed by law, and shall include in addition, to the extent necessary and appropriate in the circumstances to assure compliance with the Waste Disposal Covenant, but shall not be limited to: (i) licensing or permitting Franchise Haulers, upon the condition of compliance with the Waste Disposal Covenant, (ii) providing for and taking appropriate enforcement action under any such franchise, license, or permit, such as but not limited to the suspension, revocation and termination of collection rights and privileges, the imposition of fines or collection of damages, and the exercise of injunctive relief against non -complying Franchise Haulers and (iii) causing any Transfer Station to which Controllable Waste is delivered for processing to deliver certification, umder the penalty of perjury, of the amounts of Controllable Waste received and Residue remaining from processing at such Transfer Station. (2) The City acknowledges and agrees that in the event of a breach of the Waste Disposal Covenant by the City, the City shall pay the County an amount equal to the amount that the City would have been required to pay to the County had the Waste Disposal Covenant not been breached, which shall be calculated by (x) subtracting the number of tons actually delivered during the month(s) of the breach from the number of tons that were delivered during the same month(s) closest in time when there was no such breach, even if such months) closest in time was prior to the Tenn, and (y) multiplying such amount by the Contract Rate in effect at the time of such breach (or any higher rate with respect to which the County has provided notice pursuant to Section4.2). In the event that the County terminates the Waste Disposal Agreement as a result of such breach, the damages due as a result of such termination shall be equal to (m) the average monthly deliveries by the City for the twelve months prior to the commencement of the breach multiplied by (bb) the Contract Rate in effect at the time of such breach (or any higher rate with respect to which the County has provided notice pursuant to Section 4.2), multiplied by (cc) the number of months that would have remained in the Term of the Agreement had the termination not occurred. The parties recognize that if the City fails to meet its obligations hereunder, the County will sutler damages and that it is and will be impracticable and extremely difficult to ascertain and determine the exact amount of such damages. Therefore, the parties agree that the damages specified above represent a reasonable estimate of the amount of such damages, considering all of the circumstances existing on the date hereto, including the relationship of the sums to the range of harm to the County that reasonably could be anticipated and anticipation thatproof of actual damages would be costly or inconvenient. In signing this Agreement, each party specifically confirms the accuracy of the statements made above and the fact that each party had ample opportunity to consult with legal counsel and obtain an explanation of this liquidated damage provision at the time that this Agreement was made. (F) Letzal Challenges to Franchise System. The City shall use its best efforts to preserve, protect and defend its right to exercise and comply with the Waste Disposal Covenant against any challenge thereto, legal or otherwise (including any lawsuits against the City or the County, whether as plaintiff or defendant), by a 10 exccmiun Copy 60B-311 Franchise Hauler or any other person, based upon breach of contract, violation of law or any other legal theory. The City shall bear the cost and expense of any such Legal Proceeding or other challenge. In the event any such Legal Proceeding relating to the Waste Disposal Covenant or the City's exercise thereof establishes in a final determination that such covenant or exercise thereof is void, unlawful or unenforceable, or if any Franchise Hauler fails to deliver Controllable Waste to the Disposal System in breach of its franchise with the City on the grounds that a judicial determination made by any court or other Applicable Law has rendered its obligation to deliver Controllable Waste to the Disposal System void, unlawful or unenforceable on any legal grounds, with the result that actual waste deliveries to the Disposal System fall below the Cumulative Tonnage Targets, the County shall be entitled to avail itself of the remedies described in Section 4.2(B) hereof. (G) Franchise Haulers. The City shall compile and provide the Department with the following information concerning all Franchise Haulers: name, address and phone number; identification number; area of collection and transportation; and franchise and permit terms. (H) Waste Information System. The City shall cooperate with the Department in collecting information and otherwise monitoring Franchise Haulers in order to assure compliance with this Agreement. Such information may include, to the extent practicable, data pertaining to Controllable Waste collected, transported, stored, processed and disposed of, Recycled City Acceptable Waste collected, transported, stored, processed and marketed or disposed of, Franchise Haulers' franchise, permit or license terms, collection areas, transportation routes and compliance with Applicable Law; and all other information which may reasonably be required by the Deparnment in connection with this Agreement. The City agrees to include in any revised franchise, contract, license or permit or other authorization granted to Franchise Haulers an obligation of the Franchise Hauler to provide to the County information relating to the Controllable Waste collected by such Franchise Hauler, including origins from which such Controllable Waste was collected, tonnage by type of load (residential, commercial, roll -off box), customer service levels, tonnage delivered by transfer station or material recovery facility utilized, and other related information. (1) City Actions Affecting Count. The City agrees to carry out and fulfill its responsibilities under this Agreement and Applicable Law so as to permit full and timely compliance by the County with its covenants and agreements with the State. In particular, the City agrees not to conduct, authorize or permit any disposal services for Controllable Waste to be provided in competition with the Disposal Services provided by the County hereunder, and not to take or omit to take any action with respect to Controllable Waste or its collection, transportation, transfer, storage, treatment or disposal that may materially and adversely affect the County's ability to achieve such timely compliance. Notwithstanding the foregoing, the City shall not be required to deny any permit or license or refuse to grant any approval while exercising its police powers. (J) No Right of Waste Substitution. Nothing in this Agreement shall authorize or entitle the City to deliver or cause the delivery to the Disposal System of Acceptable Waste originating from or generated outside the jurisdiction of the City, nor obligate the County to receive or dispose of any such Acceptable Waste. The City shall not assign in whole or in part its right to deliver or cause to be delivered Controllable Waste to the County hereunder, and shall not permit any Acceptable Waste originating from or generated outside the jurisdiction of the City to be substituted for Controllable Waste for any purpose hereunder. (K) Annexations and Restructurm . It is the intention of the parties that this Agreement and the obligations and rights of the City hereunder, including particularly the Waste Disposal Covenant and the Contract Rate, shall, to the extent permitted by Applicable Law, extend to any territory annexed by the City (or any territory with respect to which the City assumes, after March 30, 2008, solid waste management responsibility from a Sanitary District or other public entity) and shall bind any successor or restructured Governmental Body which shall assume or succeed to the rights of the City under Applicable Law. SECTION 3.2 PROVISION OF DISPOSAL SERVICES BY THE COUNTY. (A) Service Covenant Commencing on the Commencement Date, the County shall provide or cause the provision of the service of (1) receiving and disposing of all Controllable Waste at the Disposal System (or such other facilities, including transfer stations, as the County may determine to use), (2) disposing in accordance with subsection 3.2(C) hereof of Controllable Waste which, at any time and for any reason, is in excess 11 Execution Copy 60B-312 of the disposal capacity of the Disposal System, and (3) in accordance with subsection 3.3(C) hereof, disposing of Unacceptable Waste inadvertently accepted at the Disposal System. The County, to the maximum extent permitted under Applicable Law, shall use its best efforts to keep the Olinda Alpha, Prima Deshecha and Frank R. Bowerman Landfills open for the receipt of waste for disposal or transfer of Controllable Waste pursuant to this Agreement. The County shall do and perform all acts and things which may be necessary or desirable in connection with its covenants in this subsection, including without limitation all planning, development, administration, implementation, construction, operation, maintenance, management, financing and contract work related thereto or undertaken in connection therewith. The County shall exercise all reasonable efforts to minimize the costs incurred in complying with the Service Covenant consistent with its responsibilities hereunder and under this Agreement, Applicable Law and prudent solid waste management practice and environmental considerations. (B) Particular Facilities. The Department and the City shall consult and cooperate in determining whether and to what extent from time to time other landfills other than that primarily used by the City shall be utilized to receive Controllable Waste. The Department shall immediately advise the City by telephone of any situation, event or circumstance which results in the partial or complete inability of the County to receive Controllable Waste at any particular landfill within the Disposal System, its effect on the County's ability to perform its obligations hereunder, and the County's best estimate of the probable duration. The Department shall confirm such advice in writing within 24 hours of the occurrence of any such inability. The County shall use its best efforts to resume normal operation of the landfill primarily used by the City as soon as possible. In the event of a temporary material increase in average daily deliveries of Controllable Waste from the City which the County reasonably believes could result in the permitted daily disposal capacity limit to be exceeded with respect to a particular landfill within the Disposal System, the County shall have the right to redirect the increased Controllable Waste to another landfill within the Disposal System for the duration of the increase in average daily deliveries; provided, however, that in such circumstances the County shall utilize reasonable efforts to first redirect waste which is not Controllable Waste- (C) Compliance with Service Covenant Not Excused for any Reason. Commencing on the Commencement Date, the obligations of the County to duly observe and comply with the Service Covenant shall apply continuously and without interruption for the Term of this Agreement. In the event that any Change in Law or other Uncontrollable Circumstance impairs or precludes compliance with the Service Covenant by the means or methods then being employed by the County, the County shall implement alternative or substitute means and methods to enable it to satisfy the terms and conditions of the Service Covenant. In the event that a Change in Law precludes the County from complying with such covenants with the means or methods then being employed and from utilizing any alternate or substitute means or methods of compliance, the County shall continuously use all reasonable efforts to effectuate executive, legislative orjudicial change in or relief from the applicability of such law so as to enable the County lawfully to resume compliance with such covenants as soon as possible following the Change in Law. SECTION 3.3 COUNTY RIGHT TO REFUSE WASTE. (A) Right of Refusal. Notwithstanding any other provision hereof, the County may refuse delivery of. (1) Hazardous Waste; hereof, (2) Controllable Waste delivered at hours other than those provided in Section 3.5 (3) Waste that does not constitute Acceptable Waste; (4) Waste that is delivered by any party which has not executed a Waste Disposal Agreement; and (5) Controllable Waste consisting primarily of construction and demolition debris or inerts which may cause a particular facility's daily tonnage limit to be exceeded. 12 Execution Copy 60B-313 (B) Identification of Unacceptable Waste- The Department shall have the right (but not the duty or the obligation) to inspect the vehicles of all Franchise Haulers delivering material to the Disposal System, and may require that the Franchise Hauler remove any Unacceptable Waste from such vehicle before it is unloaded. If the Department determines that it is impractical to separate Controllable Waste from Unacceptable Waste in any vehicle, or if the Fmchise Hauler delivering such waste is unwilling to make such separation, or if any vehicle is carrying waste which may spill or leak, then the Department may reject the entire vehicle, and the City shall forthwith remove or cause the removal of the entire delivery from the Disposal System. The Department may take all reasonable measures to prevent waste from being blown or scattered before and during unloading. The City shall cause the Franchise Haulers to observe and comply with Applicable Law, the operating rules and regulations of the Department, and the provisions of this Agreement prohibiting the delivery of Unacceptable Waste to the Disposal System. (C) Hazardous Waste and Hazardous Substances. The parties acknowledge that the Disposal System has not been designed or permitted, and is not intended to be used in any manner or to any extent, for the handling, transportation, storage or disposal of Hazardous Waste or Hazardous Substances. Neither the County nor the City shall countenance or knowingly permit the delivery of Hazardous Waste or Hazardous Substances to the Disposal System. (D) Disposal of Unacceptable Waste and Hazardous Waste. If Unacceptable Waste or Hazardous Waste is discovered in a vehicle at any landfill within the Disposal System, the driver of the vehicle will not be permitted to discharge the load. If a vehicle is observed unloading Unacceptable Waste or Hazardous Waste in the tipping area of a landfill within the Disposal System Department personnel will use reasonable efforts to assure that such material has been characterized, properly secured and its disposition resolved. The return or reloading onto the delivery vehicle of any Hazardous Waste, Prohibited Medical Waste or other waste requiring handling or transportation shall be conducted in accordance with Applicable Law. Whenever Hazardous Waste is detected at any landfill within the Disposal System, the Department shall take immediate action in accordance with Applicable Law. (E) Source -Separated Household Hazardous Waste. The County shall maintain, as part of the Disposal System, a Source -Separated Household Hazardous Waste Disposal System for the disposal of Source - Separated Household Hazardous Waste. The disposal service provided by such system shall constitute part of the Disposal Services, and shall be available to Participating Cities as part of the Contract Rate. The County may impose additional fees and charges for services relating to Sourec-Separated Household Hazardous Waste with respect to cities which are not parties to a Disposal Agreement. The County may provide for the expansion, contraction or modification of the Source -Separated Household Hazardous Waste Disposal System and its services to the extent necessary to ensure the Disposal System's viability; provided, however, if the County chooses to reduce services, the County shall nonetheless continue to expend funds for the Source -Separated Household Hazardous Waste Disposal System each year during the term of this Agreement in an amount at least equal to the amount of funds expended for the Source -Separated Household Hazardous Waste Disposal System during fiscal year 2006-07 as adjusted by changes in the Producer Price Index. SECTION 3.4 UNINCORPORATED AREA ACCEPTABLE WASTE. Commencing on the Commencement Date, the County in accordance with Applicable Law shall provide or cause to be provided the service of disposing of non -recycled Acceptable Waste originating or generated within the Unincorporated Area and, with respect to such waste, shall comply with the Waste Disposal Covenant as if the County constituted a City subject to the Waste Disposal Covenant hereunder. Rates charged by the County for the disposal of each class of non -recycled Acceptable Waste generated in the Unincorporated Area shall be the same as the Contract Fee charged for the disposal of each class of Controllable Waste. The County shall use its best efforts to preserve, protect and defend its right to exercise and comply with the Waste Disposal Covenant (with respect to non -recycled Acceptable Waste generated in the Unincorporated Area) against any challenge thereto, legal or otherwise, by a Franchise Hauler or any other person, based upon breach of contract, violation of law or any other legal theory. The County shall bear the cost and expense of any such Legal Proceeding or other challenge (with respect to non -recycled Acceptable Waste generated in the Unincorporated Area). 13 Execution Copy 60B-314 SECTION 3.5 MISCELLANEOUS OPERATIONAL MATTERS. (A) Operating Hours. The County shall keep the Disposal System open for the receiving of Controllable Waste during such regular operating hours as maybe established by the Department in the operating rules and regulations applicable to the Disposal System. The County shall utilize best efforts to maintain substantially similar hours, as were in effect on January 2, 2009, for the receipt of waste through the term of this Agreement (subject to Applicable Law). (B) Scales and Weiehine. The Department shall operate and maintain permanent scales at the Disposal System. The Department shall weigh all vehicles delivering waste by or on behalf of the City (whether or not the County accepts such waste) and prepare a daily weight record with regard to such delivery- (C) Service Coordinator. The County and the City each shall designate in writing thirty days prior to the expected Commencement Date a person to transmit instructions, receive information and otherwise coordinate service matters arising pursuant to this Agreement (each a "Service Coordinator'). Either parry may designate a successor or substitute Service Coordinator at any time by notice to the other party. (D) Review of Records. Each party may review the other parry's books and records with respect to matters relevant to the performance by either party under this Agreement or otherwise related to the operation of the Disposal System to the extent allowed under the California Public Records Act (interpreted as if the parties to this Agreement were natural persons far purposes of the Public Records Act), SECTION 3.6 OTHER USERS OF THE DISPOSAL SYSTEM. (A) On or Before l 20091. On or before [120 DAYS AFTER BOARD APPROVAL], the County shall have the right to enter into waste disposal agreements with Orange County entities with respect to Acceptable Waste which was originally discarded by the first generator thereof within the geographical limits of the County, including other cities in the County, Sanitary Districts, Transfer Stations and Independent Haulers, which waste disposal agreements shall have terms and provisions substantially identical to the terms and provisions of this Agreement; provided, however, that in no event shall such agreements have terms and provisions more favorable than the terms and provisions of this Agreement (including but not limited to the Contract Rate and availability of disposal capacity). (B) After [ . 2009. After [120 DAYS AFTER BOARD APPROVAL], the County shall have the right to enter into waste disposal agreements with Orange County entities, including any city, Sanitary District, Transfer Station and Independent Hauler, or otherwise accept Acceptable Waste from such parties, but only within the limitations contained in this Section. Any such agreement or waste acceptance agreement must provide that the party delivering waste shall pay a Posted Disposal Rate at least 10% higher than the Contract Rate unless the County determines it is in the best interest of the Disposal System to establish a Posted Disposal Rate less than 10% higher than the Contract Rate. In no event shall the Posted Disposal Rate be equal to or less than the Contract Rate. In addition, the County shall reserve the right in any such waste disposal agreement at any time, to the extent permitted by Applicable Law, to refuse to receive and dispose of Acceptable Waste from any city, County Sanitary District, Transfer Station and Independent Hauler if and to the extent that such receipt and disposal may materially and adversely affect the ability of the County to comply with its obligations to the Participating Cities under the Disposal Agreements to which each is a party. (C) Receipt of Imported Acceptable Waste on a Contract Basis. The County shall have the right to enter into a contract or other agreement with any municipal or private non -County entity for the delivery of Imported Acceptable Waste on terms and conditions that the County determines to be necessary to ensure and enhance the viability of the Disposal System for the benefit of the County and the Participating Cities and to generate Net Import Revenues. The County certifies that in its good faith judgment the contract or other agreement for the delivery of such waste will not materially and adversely affect the ability of the County to receive and dispose of Acceptable Waste from the Participating Cities in accordance with the applicable Disposal Agreements throughout the Term thereof The term of any such agreement for the disposal of Imported Acceptable Waste shall end by the later to occur of (i) December 31, 2015 or (ii) the date on which County general purpose revenues are no longer expended to pay debt service on the Orange County Public 14 Execution Copy 60B-315 Financing Authority Lease Revenue Refunding Bonds Series 2005, but in no event later than the last day of the fiscal year commencing July 1, 2015. (D) Self Haulers. The City and the County acknowledge that Self -Haulers shall be entitled to deliver Self -Hauled Waste to the Disposal System, on a non -contract basis, at the Posted Disposal Rate. Such Self - Haulers shall not be entitled to dispose of Acceptable Waste for the Contract Rate. (E) Application and Use of Revenues From Other Users. All revenues received by the County from the disposal of County Acceptable Waste by the Disposal System, and all revenues received by the County from the disposal of Imported Acceptable Waste by the Disposal System, shall be deposited by the County in the County OC Waste & Recycling Enterprise Fund and shall constitute revenues of the Disposal System. Pursuant to the County's Plan of Adjustment, the County is entitled to receive net revenues (after payment of all costs attributable to the acceptance of such Imported Acceptable Waste at the Disposal System) ("Net Import Revenues") from the disposal of Imported Acceptable Waste by the Disposal System, and such Net Import Revenues may be used for the payment of bankruptcy related obligations in accordance with the Plan of Adjustment. Costs attributable to the disposal of Imported Acceptable Waste include deposits to the Environmental Fund, deposits to closure and postelosure reserves. City host fees (if applicable), incremental operating costs (such as manpower expenditures, equipment, services and supplies expenditures), state surcharges, and a pro rata share of capital project costs. The parties acknowledge that their intention in determining to allow the importation of Imported Acceptable Waste for disposal by the Disposal System is to stabilize the Contract Rate at rates below those which would otherwise prevail in the absence of such importation. SLCTION 3.7 COUNTY PROVISION OF WASTE DIVERSION SERVICES. (A) County -Wide Recycling Services. This Agreement does not require the County to provide for any source reduction, materials recovery, recycling, composting or other waste diversion services by the County nor any payment therefor by the City, by Franchise Haulers or by ratepayers; provided, however, any County -Wide Recycling Services may be funded through the County OC Waste & Recycling Enterprise Fund. Any such recycling services may be expanded, contracted or modified by the County at any time in its sole discretion. (B) Separate City -County Diversion Service Agreements. Nothing in this Agreement is intended to limit the right of the County to enter into a separate agreement with the City or any other person to provide source reduction, materials recovery, recycling, composting or other waste diversion services. Any such program conducted by the County, whether in participation with the City, any other of the Participating Cities, other Cities, Sanitary Districts, Transfer Stations, Independent Haulers, Unincorporated Area or non -County entity, shall be operated, managed and accounted for as a program separate and distinct from the Disposal Services program contemplated by the Disposal Agreements and shall not be funded through the general revenues of the Disposal System. ARTICLE IV CONTRACT RATE SECTION 4.1 CHARGING AND SECURING PAYMENT OF CONTRACT RATE. The City acknowledges that the County shall have the right to charge and collect a Contract Rate for the acceptance and disposal of Controllable Waste delivered to the System by any Franchise Hauler. The Contract Rate shall be calculated and established, and may be modified, as provided in Section 4.2 hereof. In addition, the City acknowledges that the County shall have the right to establish as part of the operating rules and regulations reasonable measures to secure the payment of all Contract Rates. SECTION 4.2 CONTRACT RATE. (A) Establishment of Contract Rate. The Contract Rate payable by each Franchise Hauler shall be (x) $22.00 per ton from the Commencement Date through June 30, 2010, and (y) $29.95 per ton on and after July I, 2010, in both cases contingent on the delivery to the Disposal System of an amount of Acceptable Waste at 15 Fxecmion Copy 60B-316 least equal to the Cumulative Tonnage Targets identified in Appendix 2, and subject to adjustment necessary to reflect the circumstances set forth in this Section 4.2: (i) increased costs incurred by the County (in excess of available insurance proceeds) due to the occurrence of one or more Uncontrollable Circumstances, other than Changes in Law; (ii) costs incurred by the County (in excess of available insurance proceeds and amounts available in the Environmental Fund for such purposes) rcmediating environmental conditions at the Disposal System or inactive or closed disposal sites in the County, which, if uncorrected, could give rise to potential claims under CERCLA or related federal or state statutes, including costs incurred providing indemnification to any Participating City pursuant to subsection 73; or (iii) tonnage shortfalls to the extent pennitted by Sections 4.2(B); (iv) average annual inflation prior to July 1, 2010 in excess of the levels set torah in Section 42(H) and escalation pursuant to Section 4 2(F) ; (v) increased costs incurred by the County (in excess of available insurance proceeds) due to the occurrence of one or more Changes in Law; or (vi) Capital Costs in excess of the Capital Costs at any point in time during the term hereof exceeding the Cumulative Capital Costs set forth in Appendix 3. Prior to adjusting the Contract Rate as a result of any of the circumstances described in clauses (i), (ii) or (iii) above, the County shall utilize the following remedies in the following order of priority: (x) reduce the costs of operating the Disposal System to the extent practicable; and (y) utilize Unrestricted Reserves to pay costs of the Disposal System. The County will not be required to utilize such remedies prior to adjusting the Contract Rate as a result of any of the circumstances described in clauses (iv), (v) or (vi) above. Any adjustments to the Contract Rate permitted by this Section shall be calculated by the County to reflect the actual costs or expenses of addressing the circumstance or circumstances pursuant to which the adjustment is authorized. The County agrees that it will evaluate the feasibility of long term financing for significant capital costs where appropriate. (B) County Acceptable Waste Shortfall. In the event that the actual amount of County Acceptable Waste delivered to the Disposal System at the end of any Contract Year is less than the Cumulative Tonnage Target for such Contract Year for County Acceptable Waste, as specified in Appendix 2, the County shall utilize the following options, in the following order of priority, in order to remedy any adverse effects of' such tonnage shortfall: (i) reduce the costs of operating the Disposal System to the extent practicable; (ii) utilize Restricted Reserves described in clause (iii) of Section 4.5 to pay costs of the Disposal System; (iii) utilize Unrestricted Reserves to pay costs of the Disposal System; and (iv) adjust the Contract Rate. In the event that implementation of the steps described above does not result in sufficient revenues to satisfactorily address the shortfall in tonnage, the County shall have the right to terminate the Agreement on 60 days written 16 Execution Copy 60B-317 notice to the City. In addition, in the event that actual deliveries to the Disposal System exceed the Cumulative Tonnage Target as of the end of any Contract Year, the City acknowledges the County shall have the right to establish reserves intended to reflect the potential for lower than expected annual waste deliveries in subsequent years, and that any such reserves shall constitute "Restricted Reserves". (C) [RESERVED] (D) Interim Use of Remedies. In the event that, during any Contract Year, waste deliveries to the Disposal System are 25% or more below delivery projections for such Contract Year with the result that the County determines it is unlikely that the Cumulative Tonnage Target will be achieved as of the end of such Contract Year, the County may utilize the remedies described in Section 4.2(B) prior to the end of such Contract Year: provided, however, that if at the end of such Contract Year, the Cumulative Tonnage Target is actually met, the County shall reimburse any adjustments to the Contract Rate made pursuant to this Section to Participating Cities. Such reimbursement may be given as a credit or adjustment to the Contract Rate for future deliveries, rather than a lump sum payment. (E) Special Charges, Notwithstanding Section 4.2(A), the County shall have the right to impose special charges for the receipt of hard to handle materials, such as bulky materials, construction and demolition debris, tree stumps and sludge. Such special charges shall be calculated to reflect the reasonable incremental costs to the County of accepting such hard to handle materials. In addition, in the event that the Board of Supervisors of the County makes a determination to implement a facility (including but not limited to a transfer station, landfill, conversion technology facility, or a materials recovery or processing facility), which facility would be intended to provide for disposal alternatives after the closure of one or more of the landfills currently operating within the Disposal System, the County may impose an additional charge of $0.50 per ton of Acceptable Waste in order to pay the costs of the study, development, planning, construction and/or operation of such facility. Adjustments pursuant to this Section 42(E) shall not require compliance with the provisions of Section 4.2(I). (F) Escalation. The Contract Rate shall be adjusted each July 1, beginning July 1, 2011. The change will be equal to the positive percentage change in the Consumer Price Index — All Urban Consumers, U.S. city average, All items, Not Seasonally Adjusted, Series 1D CUUR000OSAO ("CPI") as measured from the October 21 months prior to the rate adjustment to the October immediately preceding the rate adjustment. For example: The July 1, 2011 rate adjustment shall be based upon the index change from October 2009, to October 2010, referred to as year 1 and year 2 respectively in the following example . Formula to calculate percentage change in the Contract Rate Step 1: October Year 2 CP1 October Year 1 CPI ' I — %increase in Contract Rate Step 2: Current Contract Rate x (1+ % increase in Contract Rate) = Contract Rate as of July l Year 2 On each April 1, commencing April 1, 2011, the County shall provide the City with notice of the adjustment to the Contract Rate to be effective the following July 1. Such notice shall contain the calculation of the adjustment set forth above. The County will calculate the new Contract Rate each year. In the event that the change in the CPI is negative, no rate adjustment will be made for that year. No adjustment under this Section 4.2(F) will take place until the October CPI index surpasses the index level as of the October immediately preceding the last annual rate adjustment pursuant to this Section 4.1(F), which will be considered "year 1" in calculating the change in the Contract Rate. 17 Execution Copy 60B-318 For example, if the CPI is measured as follows: October 2009 = 205, October 2010 = 204, October 2011 = 201, October 2012 = 208, then there would be no adjustment in July 2011, or July 2012, and an adjustment equal to the change from 205 to 208 would be implemented on July I, 2013. Adjustments pursuant to this Section 4.2(F) shall not require compliance with the provisions of Section (G) Adjustment Resulting from Increased Fees. In addition to the other adjustments specified herein, the Contract Rate shall be adjusted to reflect the imposition of new fees or increase in existing fees relating to the disposal of Controllable Waste imposed by state, federal or other agencies (i.e., the States Integrated Waste Management fee, which is currently $1.40 per ton). The adjustment shall be equal to the amount of any new or increased fee, and the adjustment shall take effect so as to coincide with the imposition of the new or increased fee. The County shall provide notice of any increase pursuant to this Section 4.2(G) as soon as practicable after becoming aware of the imposition of any fees described above. Adjustments pursuant to this Section 4.2(6) shall not require compliance with the provisions of Section (H) Calculation of Cumulative Inflation Rate. For purposes of Section 4.2(A)(iv) for adjustments prior to July I, 2011, the inflation shall be calculated as the change in the CPI between July of the year of calculation and July 1, 2008. Inflation shall be deemed to exceed the levels set forth below if the ratio between the CPI for July for the year of calculation (calculated in accordance with the formula below) and July 2008 exceeds the ratio corresponding to such year of calculation on the table below. The ratio shall be calculated in accordance with the following formula: (July CPI of calculation year / CPI for July 2008) Year of Calculation Ratio July I, 2008 1.0000 July 1,2009 1.0356 July 1, 2010 1.0723 In the event the CPI is no longer published during the term of this Agreement, such other index identified by the Bureau of Labor Statistics or otherwise generally accepted as a replacement for CPI shall be used for purposes of this Agreement. In the event of an adjustment to the Contract Rate pursuant to this section 4.2(H), such adjustment shall be applied to the Contract Rate effective until June 30, 2010, and the Contract Rate effective July 1, 2010. 4.2(I). Adjustments pursuant to this Section 4.2(H) shall not require compliance with the provisions of Section (1) Procedure for Rate Adjustments. In the event the County determines that it is entitled to an adjustment of the Contract Rate pursuant to Section 4.2(A) (other than 4.2(A)(iv)) or Section 4.2(B), it shall utilize the procedures described in this Section 4.2(1). The County shall be required to provide the City with at least 90 days prior written notice of the adjustment, which notice shall identify the specific event(s) or circumstances which require the adjustment. The notice shall also specify the earliest date on which the County Board of Supervisors shall consider the proposed adjustment. At least 45 days prior to such meeting of the Board of Supervisors, the County shall provide the City with a report which shall contain the following information: a description of the specific event(s) or circumstances which require the adjustment; a description (including cost estimates) of any activities (which may include, but not be limited to capital improvements to the Disposal System) required in order to remedy such event or circumstance; certification by the County that it has implemented the remedies described in Section 42(A) or (B) prior to requiring the rate adjustment; and a description of the methodology used by the County to calculate the adjustment to the Contract Rate (hereinafter the "County Report"). In the event the City disputes the adjustment, it shall provide the County with a written description of the reason for the dispute at least 10 days prior to the meeting of the Board of Supervisors identified in the initial notice of the County (hereinafter the "City Report"). The City Report shall be provided to the Board of Supervisors for 18 Faecuflon Copy 60B-319 consideration at such meeting in connection with the proposed rate adjustment. At any time from and attcr the date that the County provides the City with the County Report, upon the request of either party, the City and County shall meet and confer in good faith to resolve any dispute that may arise regarding the proposed adjustment to the Contract Rate. In any such meeting, the County shall be represented by the Director of the Department or his or her designee. In the event the Board of Supervisors approves all or a portion of the proposed rate adjustment, such rate adjustment shall become effective on the date identified in the initial notice sent by the County regardless of whether or not the procedures in Section 4.2(J) are utilized, but subject to potential reimbursement pursuant to clause (11) of Section 4 2(J). (J) Procedure for Expedited Judicial Review of Contested Rate Adjustment. In the event that, within 30 days after the effective date of any Contract Rate adjustment made pursuant to Section 4.2(1), Participating Cities which, in the aggregate, accounted for more than 50% of the County Acceptable Waste delivered to the County System in the twelve months preceding the Contract Rate adjustment, provide notice to the County of their election to utilize the procedures described in this Section 42(.I), then the provisions of this Section 4.2(J) shall be utilized by such Participating Cities and the County to resolve the dispute over the Contract Rate Adjustment. In the event that Participating Cities which have delivered the amount of waste contemplated in the preceding sentence do not provide notice to the County of such election, the County shall have no obligation to participate in or cooperate in the implementation of the procedures described below in this Section 4.2(J). (1) In order to pursue the expedited judicial determination described in this Section (the "Expedited Rate Determination"), the Participating Cities which have made the election described in the paragraph above (the "Challenging Cities") must commence a civil action for breach of contract (the "Action") in the Orange County Superior Court within 45 days of the date on which the Board of Supervisors approves the challenged adjustment to the Contract Rate- (2) Within two (2) days of filing the Action, the Challenging Cities shall personally serve on the County Counsel both the summons and complaint, and a stipulation and request for the entering of an order incorporating all of the procedural provisions relating to the Expedited Rate Determination as set forth in this Section 4.2(J) (such stipulation and request for order is hereinafter referred to as the "Expedited Rate Determination Stipulation"). The Expedited Rate Determination Stipulation shall be signed by each of the Challenging Cities. (3) Within fifteen (15) days of the date of service upon the County of the summons and complaint, and Expedited Rate Determination Stipulation, the County Counsel shall execute the Expedited Rate Determination Stipulation and personally serve upon the Challenging Cities through their counsel of record the Expedited Rate Determination Stipulation and its answer to the complaint in the Action. The Stipulation shall also include a waiver by each of the parties of their right to a jury trial of the issues raised in the Action. The City and the County mutually agree that the duty to execute the Expedited Rate Determination Stipulation and comply with the procedures set forth for Expedited Rate Determination in this Section 4.2(J) shall be, and are hereby deemed to be, ministerial duties which the law specifically enjoins upon each of them, and shall be subject to enforcement by the parties herein pursuant to Code of Civil Procedure Section 1085, et seq., or by means of a complaint for specific performance. (4) Within three (3) days of the date of service by the County upon the Challenging Cities of the fully signed Expedited Rate Determination Stipulation, the County and the Challenging Cities shall jointly make ex parte application to the Orange County Superior Court in the Action for the issuance of the order contained in the Expedited Rate Determination Stipulation. At such ex parse application, the County and the Challenging Cities shall also seek to confinn with the Orange County Superior Court the briefing schedule, and request a hearing date in accordance with the procedures set forth in this Section 4.2(J)_ (5) Within ten (10) days of the date of service by the County upon the Challenging Cities of the answer in the Expedited Rate Determination, the Challenging Cities shall file with the court and personally serve upon the County the Challenging Cities' opening brief and the Record in the Expedited Rate Determination. The opening brief shall not exceed 15 pages in length. The Record shall consist of, and be limited to, the record of the proceedings before the Board of Supervisors with respect to the adjustment of the Contract Rate, including but not limited to the County Report and the City Report prepared by each or any of the Challenging Cities pursuant to Section 4.2(I), any materials filed or lodged with the Board of Supervisors and the Orange County 19 Lxecution Copy 60B-320 Waste Commission, the transcript of the proceedings of the Board of Supervisors meeting and the Orange County Waste Commission, the minutes of the Board of Supervisors and the Orange County Waste Commission meeting, and the resolution and/or other documentation evidencing action by the Board of Supervisors and the Orange County Waste Commission to adjust the Contract Rate pursuant to Section4.2(A) or (B). The record shall also include the most recent reports prepared pursuant to Sections 4.6 and 4.7. The Expedited Rate Determination shall be decided solely on the evidence in the Record, and no extrinsic evidence shall be submitted to or considered by the court. (6) Within ten (10) days of service by the Challenging Cities of their opening brief and the Record, the County shall file and personally serve upon the Challenging Cities the County's opposition brief The opposition brief shall not exceed 15 pages in length. (7) Within five (5) days of service by the County upon the Challenging Cities of the opposition brief, the Challenging Cities may file and personally serve upon the County a rebuttal brief, which shall not exceed 10 pages in length. (8) The trial of the Expedited Rate Determination shall be conducted as a hearing which shall be conducted at the date set by the court in the ex parte hearing conducted pursuant to Section 4.2(J)(4), or such other date and time ordered by the court. If the court requests the parties to prepare supplemental briefs in response to any question or issue raised by the court, the parties may do so. (9) The standard of review for the Expedited Rate Determination shall be the preponderance of the evidence based upon the Record. The burden of proof shall be borne by the Challenging Cities, and the burden of proof shall be the same as with respect to a plaintiff in a damages action for breach of contract. Both parties have participated in the drafting of this Agreement. Accordingly, nothing set forth in this Agreement shalt be interpreted or construed for or against either of the parties as a consequence of their participation in the drafting of this Agreement. (10) The court shall issue its written statement of decision and enterjudgment within thirty (30) days of the date of the hearing in the Expedited Rate Determination. (11) if the court determines that any portion of the County's adjusted Contract Rate which is the subject of the Expedited Rate Determination was improperly imposed, the County shall, within 30 days of the date of the statement of decision, reimburse to the City the amount improperly imposed, together with interest calculated at the highest percentage rate that does not constitute usury under California laws. Such reimbursement may be made in the form of a reduction in the Contract Rate for a future period (not to exceed twelve months) reasonably calculated to provide full reimbursement of the amounts described above. (12) If for any reason the court does not sign the order contained in the Expedited Rate Determination Stipulation, the City shall, within 30 days of the court's denial of such requested order, file with the court and personally serve upon the County a motion for summary judgment and/or motion for judgment on the pleadings, in accordance with Code of Civil Procedure Section 437(c) and 438. By executing this Agreement, the parties hereby stipulate that, in the event that the Challenging Cities file such summary judgment motion and/or motion for judgment on the pleadings, the Record shall be deemed to have been incorporated into the complaint and answer filed by the Challenging Cities and the County, and no evidence outside of the Record is relevant or material to the dispute raised in the Expedited Rate Determination. The briefing schedule and hearing on such motion for summary judgment and/or motion for judgment on the pleadings shall be in accordance with Code of Civil Procedure Section 437(c). The Challenging Cities and the County shall be bound by all of the requirements and restrictions set forth in Section 42(J) that are not in conflict with this paragraph (12). (13) In the event that the court both does not sign the order contained in the Expedited Rate Determination Stipulation and either does not hear or does not issue a ruling on the merits on the motion for summary judgment and,'or judgment on the pleadings which is dispositive of the issues, claims and causes of action in the complaint filed by the Challenging Cities, the County and the Challenging Cities shall, within twenty days following the issuance of the Court's order or decision not to honor the parties' stipulation or not to hear the parties' motion for summary judgment, make application to the Presiding Judge of the Orange County 20 Execution Copy 60B-321 Superior Court for an expedited hearing or trial date. The Challenging Cities and the County shall be bound by all of the requirements and restrictions set forth in Section 42(J) that are not in conflict with this paragraph (13). In this regard, and without limiting the foregoing, the only evidence to be presented at the hearing or trial shall be the Record, no testimony shall be presented at the hearing or trial; and both the County and the Challenging Cities waive all rights to a jury trial, to any reconsideration of the decision of the court, to a new trial after the court renders a decision, and to any appeal or review of the decision of the court. SECTION 43 RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE. (A) Payment by City. In the event and to the extent (1) the City uses municipal collection forces directly for the haulage of Controllable Waste to the Disposal System or (2) the City uses non -municipal Franchise Haulers for collection but nonetheless elects to pay the Contract Rate from City revenues, the City, as its own Franchise Hauler, shall have direct responsibility for payment of the Contract Rate, and shall take all such budgetary, appropriation and other action as may be necessary to provide for the timely payment of the Contract Rate. Such action may include, depending upon the means authorized by the City to provide for such payment, the levy and collection of general or special taxes, the imposition of benefit assessments, or the collection of user fees, generator charges or other similar impositions for municipal solid waste disposal. The City shall use best efforts in accordance with Applicable Law to levy and impose all such taxes, assessments, fees or charges, and will take all steps, actions and proceedings for the enforcement, collection and payment of all such amounts which shall become delinquent, to the full extent permitted by Applicable Law. To the extent provided in Section 7.5 hereof, the obligation of the City for such Contract Rates shall be limited to amounts in the City's Solid Waste Enterprise Fund. From the Commencement Date to the date of expiration or termination of this Agreement, the obligation to the City to pay the Contract Rate, to the extent the City rather than Franchise Haulers is responsible directly for payment and provided that the Service Covenant has been complied with, shall be absolute and unconditional and shall not be subject to delay or diminution by reason of set-off, abatement, counterclaim, existence of a dispute or otherwise. (B) Payment by Franchise Haulers. With respect to Controllable Waste delivered by Franchise Haulers other than City municipal collection forces, the obligation to pay the Contract Rate shall rest with such Franchise Haulcrs and not with the City and, unless the City has agreed with the County to be responsible for Franchise Hauler payments, the City shall not be financially responsible for any delay or failure by such Franchise Hauler to pay the Contract Rate or any portion thereof when due. In the event of any such failure, the County and the City shall cooperate with each other and use their best efforts to obtain timely payment. Such efforts by the County may include, as appropriate, requiring cash payments for disposal rights from such Franchise Hauler and bringing a legal proceeding for payment and damages. Such efforts by the City may include, as appropriate, legal proceedings to suspend, revoke or terminate the Franchise Hauler's franchise, permit or license rights. (C) Disputes. If the City or the Franchise Hauler disputes any amount billed by the County in any Billing Statement, the City or the Franchise Hauler shall nonetheless pay the billed amount and shall provide the County with written objection within 30 days of the receipt of such Billing Statement indicating the amount that is being disputed and providing all reasons then known to the City or the Franchise Hauler for any objection to or disagreement with such amount. If the City or the Franchise Hauler and the County are not able to resolve such dispute within 30 days after the City's or the Franchise Hauler's objection, either party may pursue appropriate legal remedies. SECTION 4.4 BILLING OF THE CONTRACT RATE. The County shall continue to bill Contract Rates after the Commencement Date, in the same manner as it has customarily billed tipping fees. Subject to the other provisions of this Agreement, the County shall have the right to modify or amend such manner of billing on reasonable notice to affected parties. SECTION 4.5 RESTRICTED RESERVES. For purposes of this Agreement, "Restricted Reserves" means cash and other reserves of the Disposal System which we restricted to specific uses or are otherwise being reserved by the County to meet its obligations hereunder throughout the term of the Agreement with respect to the Disposal System pursuant to any Applicable Law, contract, adopted budget, budgetary policy of the County with respect to the Disposal System, or other arrangement. Such cash and other reserves are not required to be deposited in separate accounts or funds in order to constitute "Restricted Reserves" hereunder, and may be commingled with 21 Execution Cupy 60B-322 Unrestricted Reserves or other funds of the County attributable to the Disposal System. "Restricted Reserves" shall include, but not be limited to, the following: by Applicable Law; (i) reserves for closure of components of the Disposal System to the extent required (ii) amounts reserved by the County for funding of post closure maintenance and monitoring with respect to components of the Disposal System; (iii) reserves established to protect the Disposal System against the adverse financial impact of potential decreases in waste deliveries pursuant to Section 4 2(B); (iv) amounts reserved to pay the costs of capital improvements with respect to the Disposal System; (v) amounts funded from revenues during the early years of the term of the Agreement reserved to enable the County to provide disposal services for the Contract Rate during the later years of the Agreement; (vi) amounts temporarily held by the County prior to payment to the State or other Governmental Bodies pursuant to Applicable Law (including any fees or charges payable to the State Integrated Waste Management Board); (vii) reserves required to meet bond covenants pursuant to financing agreements for Disposal System assets to the extent such amounts must be legally separate and distinct from other reserves identified in this Section; (viii) security deposits from landfill deferred payment progratn users; (ix) amounts held by the County in the Environmental Fund (provided, however, that such amounts in the Environmental Fund will be made available and used by the County if required to pay costs relating to environmental remediation or other related costs); (x) AB939 surcharges; (xi) amounts held by the County in the Corrective Action Fund held pursuant to CCR Title 27 to demonstrate financial assurance to pay for potential groundwater contamination; and (xii) an amount equal to three months of budgeted expenses for the Disposal System for the current fiscal year, representing working capital of the Disposal System. SECTION 4.6 AUDITED FINANCIAL STATEMENTS. The County shall annually, on or before January I each year, prepare or cause to be prepared and have on file for inspection an annual report for the preceding Contract Year, accompanied by a certificate of an independent public accountant or of the County Auditor and Controller as to the examination of the financial statements therein (describing such statements as fairly presenting the information therein in conformity with generally accepted accounting principles) relating to the Disposal System, the Disposal Services, and the fiscal activities of the County OC Waste Disposal Enterprise Fund, and including statements in reasonable detail of the financial condition of the County OC Waste Disposal Enterprise Fund as of the end of the Contract Year and revenue and expenses for the Contract Year. SECTION 4.7 ANNUAL UPDATE OF TEN-YF,AR FINANCIAL PROJECTION. The County shall annually, on or before May I of each year, prepare or cause to be prepared, an updated 'fen -Year Financial Projection for the Disposal System. Said Financial Projection shall include at least two full years of prior actual data and ten years of future projections including the following elements: Execution Copy 22 60B-323 I . County Acceptable Waste, in tons; 2. Imported Acceptable Waste, in tons; 3. Revenues and expenditures; 4. Cash fund balances, including all monies in the County Solid Waste Enterprise Fund, with specific delineation of monies in the Environmental Fund, Restricted Reserves, Unrestricted Reserves. and all other funds of the System. 5. Projected liabilities for closure and post closure as well as reasonable reserves for other environmental costs. fhe purpose of the Ten -Year Financial Projection is to keep the City fully informed about the future financial condition of the Disposal System. The County shall cause a copy of the Ten -Year Financial Projection to be delivered to the City Manager of the City no later than May I of each year. Upon request, the County shall make available to the Cities supporting information related to the ten-year financial projection ARTICLE V BREACH, ENFORCEMENT AND TERMINATION SECTION 5.1 BREACH. The parties agree that in the event either party breaches any obligation under this Agreement or any representation made by either party hereunder is untrue in any material respect, the other party shall have the right to take any action at law or in equity (including actions for injunctive relief, mandamus and specific performance) it may have to enforce the payment of any amounts due or the performance of any obligations to be performed hereunder. Neither party shall have the right to terminate this Agreement except as provided in Section 5.2 and Section 5.3 hereof or as otherwise provided in this Agreement. SECTION 5.2 CITY CONVENIENCE TERMINATION. The City shall have the right to terminate this Agreement in its sole discretion, for its convenience and without cause at any time during the Term hereof upon 90 days' written notice to the County. If the City exercises its rights to terminate the Agreement pursuant to this Section, the City shall pay the County a termination fee equal to the Contract Rate in effect at the time of such termination (or any higher rate with respect to which the County has provided notice pursuant to Section 4.2) multiplied by the number of tons of City Acceptable Waste delivered to the Disposal System during the preceding twelve months (or, if the City had been in breach of the Waste Disposal Covenant during such prior months, such amount as would have been delivered if the City had complied with the Waste Disposal Covenant), multiplied by the number of years remaining in the Term of the Agreement. SECTION 5.3 TERMINATION. (A) By City. Except as expressly provided herein, the City shall have no right to terminate this Agreement for cause except in the event of the repeated failure or refusal by the County substantially to perform any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable Circumstance; except that no such failure or refusal shall give the City the right to terminate this Agreement for cause under this subsection unless: (1) The City has given prior written notice to the County stating that a specified failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on the part of the County and which will, in its opinion, give the City the right to terminate this Agreement for cause under this subsection unless such breach is corrected within a reasonable period of time, and (2) The County has neither challenged in an appropriate forum (in accordance with Section 5.5) the City's conclusion that such failure or refusal to perform has occurred or constitutes a material breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of - time not more than 90 days from the date of the notice given pursuant to clause (1) of this subsection (but if the Execution Cup}' 23 60B-324 County shall have diligently taken steps to correct such breach within such reasonable period of time, the same shall not constitute a breach giving rise to the right of termination for as long as the County is continuing to take such steps to correct such breach). (B) By County. Except as expressly provided herein, the County shall have no right to terminate this Agreement for cause except in the event of the repeated failure or refusal by the City substantially to perform any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable Circumstance; except that no such failure or refusal shall give the County the right to terminate this Agreement for cause under this subsection unless: (1) The County has given prior written notice to the City stating that a specified failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on the part of the City and which will, in its opinion, give the County right to terminate this Agreement for cause under this subsection unless such breach is corrected within a reasonable period of time, and (2) The City has neither challenged in an appropriate forum (in accordance with Section 5.5) the County's conclusion that such failure or refusal to perform has occurred or constitutes a material breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of time not more than 90 days from the date of the notice given pursuant to clause (I ) of this subsection (but if the City shall have diligently taken steps to correct such breach within such reasonable period of time, the same shall not constitute a breach giving rise to the right of termination for as long as the City is continuing to take such steps to correct such breach). SECTION 5.4 NO WAIVERS. No action of the County or the City pursuant to this Agreement (including, but not limited to, any investigation or payment), and no failure to act, shall constitute a waiver by either Party of the other party's compliance with any term or provision of this Agreement. No course of dealing or delay by the County or the City in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof or otherwise prejudice such party's rights, powers and remedies. No single or partial exercise of (or failure to exercise) any right, power or remedy of the County or the City under this Agreement shall preclude any other or further exercise thereof of the exercise of any other right, power or remedy. SECTION 5.5 FORUM FOR DISPUTE RESOLUTION. It is the express intention of the parties that all legal actions and proceedings related to this Agreement or to the Disposal System or to any rights or any relationship between the parties arising therefrom shall be solely and exclusively initiated and maintained in courts of the State of California having appropriate jurisdiction. ARTICLE VI TERM SECTION 6.1 EFFECTIVE DATE AND TERM. (A) Initial Term. This Agreement shall become effective, shall be in full force and effect and shall be legally binding upon the City and the County from the Contract Date and shall continue in full force and effect until June 30, 2020, unless earlier terminated in accordance with its terms, in which event the Term shall be deemed to have expired as of the date of such termination. (B) Option to Renew. This Agreement shall be subject to renewal by mutual agreement of the parties, on or before June 30, 2018, for an additional term of ten years (the "Renewal Term") on the same terms and conditions as are applicable during the Initial Term hereof. The City shall give the County written notice of its irrevocable election to renew this Agreement on or before June 30, 2017. if the parties do not renew this Agreement by June 30, 2018, the Agreement shall expire on June 30, 2020. (C) Contract Rate During Renewal Term. In connection with the panics' right to renew this Agreement for an additional ten-year term pursuant to Section 6.1(B), the parties shall, on or before June 30, 2018, negotiate an applicable change in the Contract Rate for such renewal term. In determining any revisions to the 24 Execution Copy 60B-325 Contract Rate to be applicable during any renewal period, in addition to the circumstances described in Section 4.2(A), the parties may take into consideration the following parameters, including but not limited to: (i) actual cost of operations; (ii) population growth; (iii) increase or decrease in available tonnage; (iv) economic and disposal market conditions in the Southern California region; (v) changes in transportation and technology; (vi) closure and expansion of nearby landfills; (vii) capacity of the Disposal System; and (viii) available reserves which are in excess of the amount reasonably required as reserves (D) Survival: Accrued Rights. The rights and obligations of the parties hereto pursuant to Sections 3.1(E)(2), 5.1, 5.3, 5.5, 7.2, 7.3, 7.5, 7.7, 7.8, 7.9, and 7.10 hereof shall survive the termination or expiration of this Agreement, and no such termination or expiration shall limit or otherwise affect the respective rights and obligations of the parties hereto accrued prior to the date of such termination or expiration. At the end of the Term of this Agreement, all other obligations of the parties shall terminate. SECTION 6.2 COMMENCEMENT DATE (A) Obligations of the Parties Prior to the Commencement Date. The parties acknowledge that the Disposal Agreements may be executed and delivered on different dates and that, except as provided in this subsection, neither the County nor the City shall be obligated to perform its obligations hereunder until the participation threshold provided herein has been met and the other conditions to the occurrence of the Commencement Date have occurred. Prior to the Commencement Date, each party hereto shall at its own expense exercise good faith and due diligence and take all steps within its reasonable control in seeking to satisfy the conditions to the Commencement Date set forth herein as soon as reasonably practicable. The County and the City, each at its own expense, shall cooperate fully with each other and the other Participating Cities in connection with the foregoing undertaking. Until the Commencement Date occurs, the Original WDAs shall remain in full force and effect. (B) Condition to the Commencement Date. The Commencement Date for the Agreement shall be the date on which the percentage of the County's Acceptable Waste attributable to Participating Cities which have executed and delivered Disposal Agreements shall exceed 85% percent (using the percentage rates attributed to such Cities in Appendix 1). Unincorporated County is assumed to be a Participating City for the purposes of determining the Commencement Date in accordance with this Section 6.2(b) and Appendix 1 of this Agreement. (C) Satisfaction of Condition and Commencement Date. Upon the satisfaction or waiver of the condition to the Commencement Date, the County shall give written notice thereof to the cities which have theretofore executed Disposal Agreements. The parties shall thereupon hold a formal closing acknowledging the satisfaction or waiver of the condition to the Commencement Date, certifying that the Commencement Date has occurred and designating the Participating Cities. Copies of all of the documents or instruments constituting or evidencing satisfaction of the Commencement Date conditions shall be furnished to each party prior to or on the Commencement Date. 25 Fxecution Copy 60B-326 (D) Newly Incorporated Cities. Any city within Orange County which becomes incorporated after the Commencement Date shall upon request be offered the opportunity by the County to become a Participating City. If any such City executes a Disposal Agreement and meets the applicable condition provided in subsection 6.2(B) hereof within ISO days following the date of its municipal incorporation, then such City shall be entitled to execute a Waste Disposal Agreement on substantially the same terms and conditions as this Agreement (including the Contract Rate), notwithstanding the limitations contained in Section 3.6(B). (E) Failure of Condition. If by [120 DAYS AFTER BOARD APPROVAL], or such later date as the County may agree, the condition to the Commencement Date specified in this Section is not. satisfied, either party hereto may, by notice in writing to the other party, terminate this Agreement. Neither party shall be liable to the other for the termination of this Agreement pursuant to this subsection, and each of the parties shall bear its respective costs and expenses incurred in seeking to satisfy the condition to the Commencement Date. Notwithstanding anything in this Agreement to the contrary, in the event that this Agreement is terminated pursuant to this Section, the provisions of the Original W DA shall remain in full force and effect on the terms and conditions set forth therein. ARTICLE VII GENERAL PROVISIONS SECTION 7.1 OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM. The County, at its cost and expense through the County Solid Waste Enterprise Fund, shall at all times operate, or caused to be operated, the Disposal System in accordance with Applicable Law and the operating rules and regulations of the Department. SECTION 7.2 UNCONTROLLABLE CIRCUMSTANCES GENERALLY. (A) Performance Excused. Except as otherwise specifically provided in this Agreement, neither the County nor the City shall be liable to the other for any failure or delay in the performance of any obligation under this Agreement (other than any payment at the time due and owing) to the extent such failure or delay is due to the occurrence of an Uncontrollable Circumstance. (B) Notice. Mitigation. The party experiencing an Uncontrollable Circumstance shall notify the other party by telecommunication or telephone and in writing, on or promptly after the date the party experiencing such Uncontrollable Circumstance first knew of the commencement thereof, followed within 15 days by a written description of (1) the Uncontrollable Circumstance and the cause thereof (to the extent known), (2) the date the Uncontrollable Circumstance began and the cause thereof, its estimated duration, the estimated time during which the performance of such parry's obligations hereunder will be delayed, (3) the estimated amount, if any, by which the Contract Rate may need to be adjusted as a result of such Uncontrollable Circumstance, (4) its estimated impact on the other obligations of such party under this Agreement and (5) potential mitigating actions which might be taken by the County or City and any areas where costs might be reduced and the approximate amount of such cost reductions. Each party shall provide prompt written notice of the cessation of such Uncontrollable Circumstance. Whenever such act, event or condition shall occur, the party claiming to he adversely affected thereby shall, as promptly as reasonably possible, use its best efforts to eliminate the cause therefor. reduce costs and resume performance under this Agreement. In addition, with respect to Changes in Law, the County shall diligently contest any such changes the imposition of which would have a material adverse impact on the Disposal System. While the delay continues, the County or City shall give notice to the other party, before the first day of each succeeding month, updating the information previously submitted. (C) Impact on Contract Rate. If and to the extent that Uncontrollable Circumstances interfere with, delay or increase the cost to the County of meeting its obligations hereunder and providing Disposal Services to the Participating Cities in accordance herewith, the County shall be entitled to an increase in the Contract Rate as provided in Section 42 herein or an extension in the schedule for performance equal to the amount of the increased cost or the time lost as a result thereof. The proceeds of any insurance available to meet any such increased cost shall be applied to such purpose prior to any determination of cost increases payable under this subsection. Any cost reductions achieved through the mitigating measures undertaken by the County pursuant to subsection 7.2(B) hereof upon the occurrence of an Uncontrollable Circumstance shall be reflected in a reduction of the amount by which the 26 Execution Copy 60B-327 Contract Rate would have otherwise been increased or shall serve to reduce the Contract Rate to reflect such mitigation measures, as applicable. SECTION 7.3 1NDEMN'IFICATION. To the extent permitted by law, the County agrees that, it will protect, indemnify, defend and hold harmless the City from and against all Loss -and -Expense arising from the City's activity as an "arranger' (for purposes of and as such term is defined under CERCLA or comparable state statutes) of municipal solid waste disposal pursuant to this Agreement. In the event the City shall determine that because of conflict or any other reason that it wishes to be defended by legal counsel other than the legal counsel provided by the County, the cost of providing such legal counsel shall be the City's sole responsibility. The City acknowledges the County's legitimate interest in actively participating in any defense, litigation or settlement whether the County or the City provides legal counsel. Any costs incurred by the County pursuant to this Section shall be considered an Uncontrollable Circumstance cost and the County shall be entitled to adjust the Contract Rate as provided in subsection 4.2(A) herein. The County shall not, however, be required to indemnify or defend the City from and against all Loss -and -Expense arising from any willful, knowing, illegal or negligent disposal of hazardous waste (other than incidental amounts of Household Hazardous Waste commonly found in municipal solid waste and permitted to be disposed in Class III landfills under RCRA) which violates the County's landfill permits or Applicable Law. The parties agree that this provision constitutes an indemnity under CERCLA (to the extent of the specific provisions of this Section). The panics acknowledge that this subsection is not intended to and does not create any obligation on the part of the County to provide any indemnification or defense to any Franchise Hauler, whether franchised or not, or any Independent Hauler or Transfer Station, under any circumstances. The City acknowledges the County's legitimate interest in actively participating in any defense, litigation or settlement, and shall, as a condition to this indemnity, coordinate fully with the County in the defense. SECTION 7.4 RELATIONSHIP OF THE PARTIES. Neither party to this Agreement shall have any responsibility whatsoever with respect to services provided or contractual obligations or liabilities assumed by the other party hereto, whether accrued, absolute, contingent or otherwise, or whether due or to become due. The County is an independent contractor of the City and nothing in this Agreement shall be deemed to constitute either party a partner, agent or legal representative of the other party or to create any fiduciary relationship between the parties. SECTION 7.5 LIMITED RECOURSE. (A) To the City. Except in the event the City has not established or maintained a City Solid Waste Enterprise Fund, no recourse shall be had to the general funds or general credit of the City for the payment of any amount due the County hereunder, or the performance of any obligation incurred hereunder, including any Loss - and -Expense of any nature arising from the performance or non-performance of the City's obligations hereunder. The sole recourse of the County for all such amounts shall be to the funds held in any such Solid Waste Enterprise Fund. All amounts held in any City Solid Waste Enterprise Fund shall be held for the uses permitted and required thereby, and no such amounts shall constitute property of the County. The City shall make adequate provision in the administration of any City Solid Waste Enterprise Fund for the payment of any amount or the performance of any obligation which may be due hereunder. (B) To the Counrv. No recourse shall be had to the general funds or general credit of the County for the payment of any amount due the City hereunder, or the performance of any obligation incurred hereunder, including any Loss -and -Expense of any nature arising from the performance or non-performance of the County's obligations hereunder. The sole recourse of the City for all such amounts shall be to the funds held in the County Solid Waste Enterprise Fund in accordance with the terms of this Agreement. All amounts held in the County Solid Waste Enterprise Fund shall be held for the uses permitted and required thereby, and no such amounts shall constitute property of the City. The County shall make adequate provision in the administration of the County Solid Waste Enterprise Fund for the payment of any amount or the performance of any obligation which may be due hereunder. SECTION 7.6 PRE-EXISTING RIGHTS AND LIABILITIES. Nothing in this Agreement is intended to affect, release, waive or modify any rights, obligations or liabilities which any party hereto may have to or against the other party as of the Contract Date relating to the disposal of waste in the Disposal System or any other related matter. 27 Execution Copy 60B-328 SECTION 7.7 NO VESTED RIGHTS. The City shall not acquire any vested property, license or other rights in the Disposal System by reason of this Agreement. SECTION 7.8 LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSING. Any liability incurred by the City as a result of collecting Acceptable Waste or processing it for diversion from landfill, or as a result of causing, franchising, permitting, licensing authorizing or arranging any of the foregoing, shall be its sole liability, except as expressly otherwise provided herein. SECTION 7.9 NO CONSEQUENTIAL OR PUNITIVE DAMAGES. In no event shall either party hereto be liable to the other or obligated in any manner to pay to the other any special, incidental, consequential, punitive or similar damages based upon claims arising out of or in connection with the performance or non- performance of its obligations or otherwise under this Agreement, or the material inaccuracy of any representation made in this Agreement, whether such claims are based upon contract, tort, negligence, warranty or other legal theory. SECTION 7.10 AMENDMENTS. Neither this Agreement nor any provision hereof may be changed, modified, amended or waived except by written agreement duly authorized and executed by both parties. SECTION 7.11 NOTICE OF LITIGATION. Each party shall deliver written notice to the other of any Legal Proceeding to which it is a party and which questions the validity or enforceability of this Agreement executed by the City or the County or any Legal Entitlement issued in connection herewith. SECTION 7.12 FURTHER ASSURANCES. At any and all times the City and the County so far as may be authorized by law shall pass, make, do, execute, acknowledge and deliver any and every such further resolutions, acts, deeds, conveyances, instruments, assignments, transfers and assurances as may be necessary or reasonably requested by the other in order to give full effect to this Agreement. SECTION T 13 ASSIGNMENT OF AGREEMENT. (A) Assienment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party hereto without the prior written consent of the other party, which may be withheld in the other party's sole discretion. Notwithstanding the foregoing, either party may assign this Agreement to another public entity, subject to the reasonable consent of the other party. In such circumstances the party not requesting the assignment shall have the right to demand assurances of the financial, technical and legal ability of the proposed assignee to undertake the responsibilities and obligations of the assigning party. (B) Sale. The County shall not enter into any agreement for the sale of the Disposal System which provides for an effective date for such sale prior to the termination of this Agreement. SECTION 7.14 INTEREST ON OVERDUE OBLIGATIONS. Except as otherwise provided herein, all amounts due hereunder, whether as damages, credits, revenue or reimbursements, that are not paid when due shall bear interest at the Overdue Rate on the amount outstanding from time to time, on the basis of a 365-day year, counting the actual number of days elapsed, and all such interest accrued at any time shall, to the extent permitted by Applicable Law, be deemed added to the amount due, as accrued. SECTION 7.15 BINDING EFFECT, This Agreement shall bind and inure to the benefit of the parties hereto and any successor or assignee acquiring an interest hereunder consistent with the provisions of Section 7.13 hereof. SECTION 7.16 NOTICES. Any notice or communication required or permitted hereunder shall be in writing and sufficiently given if delivered in person or sent by certified or registered mail, postage prepaid, to the notice address of the respective parties set forth on the cover page of this Agreement. Changes in the respective addresses to which such notices may be directed may be made from time to time by any party by notice to the other party. 28 Execution Copy 60B-329 IN WITNESS WHEREOF, COUNTY and CITY have caused this Agreement to be executed by their duly authorized officers or representatives as of the day and year first above written. Date PATRICIA E. HEALY Clerk of the Council By e J S G BOSS Ex tive Director of the Pu he W rks Agency APPROVED AS TO FORM: COUNTY COUNSEL ORANGE COUNTY, CALIFORNIA B%\2 APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney By�� Laura Sheedy Assistant City Attorney COUNTY OF ORANGE I� By 9V Director, OC Waste & Rccyc ng CITY OF SANTA ANA "TA gY 1�2� N.REAM f , �:AA ld VID City Manager 29 Execution Copy 60B-330 Execution Copy APPENDIX ESTIMATED ANNUAL TONNAGE 60B-331 Excculm Copy APPENDIX 2 Cumulative County Acceptable Waste Tonnage Target to be Used for Purposes of Section 4.2 (B) Fiscal Year County• Acceptable Waste Tonnage FY 2008-09 3,170,387 FY 2009-10 3,092,806 FY 2010-11 3,185,590 FY 201142 3,344,870 FY2012-13 3,445,216 FY 2013-14 3,514,120 FY 2014-15 3,549,262 FY 2015-16 3,565,608 FY 2016-17 3,582,033 FY 2017-18 3,598,535 FY2018-19 3,615,115 FY 2019-20 3,631,774 Cumulative County Acceptable Waste Tonnage 3,170,387 6,263,193 9,448,783 12,793,653 16,238,869 19,752,999 23,302,251 26,867,859 30,449,892 34,048,427 37,663,542 41,295.316 60B-332 Execution Copy APPENDIX 3 CUMULATIVE CAPITAL COSTS to be Used for Purposes of Section 4.2(A)vi Fiscal Year (ending June 30 Annual Capital Costs Cumulative Capital Costs 2009 $37,939,538 537,939,538 2010 $59,343,405 $97,282,943 2011 $10,433,978 $107,716,921 2012 $13,678,113 $121,395,034 2013 $17,525,040 $138,920,074 2014 $11,259,518 $150.179 592 2015 $37,682,758 $187 862 350 2016 $5,068,800 $192,931,150 2017 $10,662,265 $203,593,415 2018 $29,397,698 $232,991,113 2019 $8,263,795 $241,254,908 2020 $45,103,805 $286,358,713 60B-333 Execution Copy APPENDIX FORM OF HAULER ACKNOWLEDGMENT 60B-334 FRANCHISE HAULER ACKNOWLEDGMENT THIS FRANCHISE HAULER ACKNOWLEDGMENT, dated as of May 4, 2009 (the "Acknowledgment"), by and between the City of Santa Ana (the "City") and USA Waste of California Inc. (the "Franchise Hauler"). WFINESSETH [WHEREAS, the City and the Franchise Hauler have heretofore entered into an agreement entitled Third Amended and Restated Agreement for Collection and Handling of Solid Wastes Generated, Produced and/or Accumulated in the City of Santa Ana, dated as of April 3, 2005 (the "Franchise"); and [WHEREAS, the City has issued to the Franchise Hauler a permit, license, approval or other authorization the "Authorization") which allows the Franchise Hauler to provide solid waste collection services within the City; and] [WHEREAS, the Franchise authorizes the collection and disposal of certain municipal solid waste as described therein ("Franchise Waste") generated within the City; and] WHEREAS, Orange County (the "County") owns, manages and operates a sanitary landfill disposal system for municipal solid waste generated within the County; and WHEREAS, the City and the County have heretofore entered into a Waste Disposal Agreement, dated as of May 4, 2009 (the "Disposal Agreement') determining that the execution of such Disposal Agreement will serve the public health, safety and welfare of the residents of the City and County, by maintaining public ownership and stewardship over the Orange County Landfill Disposal System (the "Disposal System"); and WHEREAS, under the Disposal Agreement, the County has agreed to provide long-term disposal of all municipal solid waste generated within the City and the City has agreed to exercise all legal, and contractual power which it possesses from time to time to deliver or cause the delivery of such waste to the Disposal System; and WHEREAS, the provisions of the Waste Disposal Agreement which guarantee capacity for the long term disposal of waste at specified rates generated in the City provide significant benefits to the Franchise Hauler; WHEREAS, notwithstanding any Franchise provisions to the contrary, the Franchise Hauler explicitly acknowledges the aforementioned benefits to the City, the County and the Franchise Hauler in providing for the disposal of all Franchise Waste to the Disposal System; and WHEREAS, the City and the Franchise Hauler desire to enter into this Acknowledgment to assure that the City and the Franchise Hauler will be entitled to the benefits of the Waste Disposal Agreement and to assure conformity with the waste delivery obligations which have been agreed to by the City under the Disposal Agreement through the delivery of waste by the Franchise Hauler to the Disposal System; and WHEREAS, the Franchise Hauler's agreement Io deliver Franchise Waste to the Disposal System under this Acknowledgment is given in consideration of the Franchise Hauler's right to receive the Contract Rate for such disposal as provided in the Disposal Agreement. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Capitalized terms used and not otherwise defined herein are used as defined in the Disposal Agreement. Execution Copy 60B-335 2. The Franchise Hauler hereby waives any right which it may possess under applicable law to contest on any ground, constitutional, statutory, case law, administrative or otherwise, (a) the right, power or authority of the County or the City to enter into or perform their respective obligations under the Disposal Agreement, (b) the enforceability against the County or the City of the Disposal Agreement, or (c) the right, power or authority of the City to deliver or cause the delivery of all Controllable Waste to the Designated Disposal Facility in accordance with this Acknowledgment. 3. The City and the Franchise Hauler each hereby represent that this Acknowledgment has been duly authorized by all necessary action of their respective governing bodies. 4. The Franchise Hauler shall deliver or cause to be delivered all Controllable Waste (including all residue from the processing by any means, wherever conducted, of Controllable Waste), to the Disposal System, and shall otherwise assist the City in complying with its obligations under the Waste Disposal Covenant in Section 3.1 of the Disposal Agreement. 5. The Franchise Hauler shall not haul Controllable Waste to any materials recovery facility, composting facility, intermediate processing facility, recycling center, transfer station or other waste handling or management facility unless the contract or other agreement or arrangement between the Franchise Hauler and the operator of such facility is sufficient in the opinion of the County to assure that the Residue from such facility constituting City Acceptable Waste (or Tonnage equivalencies) and the City Acceptable Waste transferred by such facility shall be delivered to the Designated Disposal Facility in compliance with the Waste Disposal Covenant. 6. The Franchise Hauler shall pay the Contract Rate imposed by the County at the Designated Disposal Facility for the disposal of all Controllable Waste, which rate shall be subject to potential adjustment necessary to reflect the circumstances set forth in the Disposal Agreement. 7. Nothing in this Acknowledgment is intended to restrict any right or responsibility explicitly given the Franchise Hauler in the Franchise to recycle City Acceptable Waste, except as provided in paragraph 5 above with respect to Residue from any such recycling operations. 8. The obligations of the Franchise Hauler under this Acknowledgment shall apply notwithstanding any provision of the Franchise which may conflict herewith. 9. This Acknowledgment may be enforced by the City by any available legal means. In any enforcement action by the City, the burden of proof shall be on the Franchise Hauler to demonstrate compliance herewith. 10. This Acknowledgment shall be in full force and effect and shall be legally binding upon the City and Franchise Hauler from the dated hereof and shall continue in full force and effect until the earlier of (i) the end of the term of the Franchise or (ii) the end of the term of the Disposal Agreement. it. The City and Hauler agree that the County shall be an express third party beneficiary of this Acknowledgment, and shall be entitled to independently enforce the obligations of the Franchise Hauler hereunder. 12. The Hauler agrees to assist the County in verifying tonnage collected by the Franchise Hauler and providing information required by the County. Hauler will provide upon request refuse tonnage collected within the County, and outside the County (if relevant to confirming tonnage origination), separated by jurisdiction, by load type (residential, commercial, roll -off box), and by facility to which it was delivered (specify which landfill or transfer station). Hauler will provide customer service levels and route lists. Hauler will cooperate with County audits to verify reported origin of tonnage by making records and personnel available to the County and/or its auditors. Execution Copy 60B-336 IN WITNESS WHEREOF, the parties have caused this Acknowledgment to be executed by their duly authorized officers or representatives as of day of , 2009. CITY OF SANTA ANA Ate' iri_,•_ Printed Name: i �.. . USA WASTE OF CALIFORNIA INC. Signature: Printed Title: Execution Copy 60B-337 APPENDIX 1 PERCENTAGE OF COUNTY ACCEPTABLE WASTE ATTRIBUTABLE TO PARTICIPATING CITIES FOR PURPOSE OF SECTION 6.2(b) Jurisdiction Percentage of County Acce table Waste Anaheim 13.4% Santa Ana 10.6% Irvine 7.5% Huntington Beach 6.0% Orange 5.8% Garden Grove 5 1% Fullerton 4 5% Unincorporated Orange Count 1° 4.3% Costa Mesa 3 6% Newport Beach 3.0% Lake Forest 2 6% Buena Park 2 5% Mission Viejo 2 3% Westminster 2.3% Yorba Linda 2.3% Brea 2 1% Tustin 2 0% C ress 19% La Habra 1 8% San Clemente 1.7% Fountain Valle 1.6% La una Ni uel 1.6% Placentia 1.6% San Juan Ca istrano 1.6% La una Beach 1.4% Dana Point 1 20/ Stanton 1 1% Rancho Santa Mar arita 1 0% La una Hills 0.9% Seal Beach 0 8% Aliso Vie'o 0 7% Los Alamitos 0 5% La Palma 0.3% La una Woods U2% Villa Park 0 2n/o Total 100% i., ' iuuwrporatea County is assumed to be a Participating City for the purposes of determining the Commencement Date in accordance with Section 6.2(b) of this Agreement. (2) A Participating City will only be included for purposing of determining the Commencement Date upon (i) execution of a Waste Disposal Agreement by that Participating City and (it) execution of a Hauler Acknowledgement(s) by the Franchise Hauler(s) operating within such Participating City Execution Copy 60B-338 Execution Copy APPENDIX 2 CUMULATIVE TONNAGE TARGETS 60B-339 EXHIBIT 8 AB 341, All 1826, AND SB 1383 IMPLEMENTATION PLAN February 11, 2020 606_ 40 City of Santa Ana - DRAFT Exhibit 2 City of Santa Ana Solid Waste Services Implementation Timeline �. March 2020 Present RFP Package to Council for Approval, Finalize and Release RFP June 2020 Proposals Due (4-month proposal preparation period) July — December 2020 Evaluate Proposals and Interview Proposers January 2021 Council Selects Contractor(s) for Negotiation February to May 2021 I Negotiate and Prepare Final Agreement June 2021 Award by City Council Summer 2021 Proposition 218 Noticing (45 days in advance of hearing) Summer 2021 July 1, 2022 Proposition 218 Hearing Commence New Services 60 B-341 EXHIBIT 3 SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED AGREEMENT FOR COLLECTION AND HANDLING OF SOLID WASTES GENERATED, PRODUCED AND/OR ACCUMULATED IN THE CITY OF SANTA ANA This SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED AGREEMENT FOR COLLECTION AND HANDLING OF SOLID WASTES GENERATED, PRODUCED AND/OR ACCUMULATED IN THE CITY OF SANTA ANA ("Second Amendment') is made and entered into this 3rd day of March, 2020 by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("CITY") and Waste Management Collection and Recycling, Inc., a California corporation dba Waste Management of Orange County ("CONTRACTOR"). RECITALS A. The Legislature of the State of California, by enactment of the California Integrated Waste Management Act of 1989, Division 30 of the California Public Resources Code, commencing with Section 40000 ("CIWMA"), declares that it is within the public interest to authorize and require local agencies to make adequate provisions for Solid Waste handling within their jurisdictions. B. In the opinion of the City Council of the City of Santa Ana, the public health, safety and well-being require that the collection, transportation, and recycling, diversion by means of composting, mulching and/or transforming, and disposal of Solid Waste, including, but not limited to, the frequency and means of such collection, transportation and recycling, yard waste diversion or disposal, and the charges and fees therefore, be provided by contract to a qualified contractor. C. On June 30, 1993, CITY and CONTRACTOR entered into an agreement for such Solid Waste collection and handling. D. Since the execution thereof, CI.TY and CONTRACTOR jointly concurred that it would be in the best interest of the CITY and the residents therein that the Original Agreement be revised to provide for Solid Waste collection, recycling and disposal of Curbside Service Units by means of automated Solid Waste collection vehicles and Solid Waste collection and recycling plastic carts. E. On June 1, 1996, CITY entered into an agreement entitled "Amended and Restated Agreement for Collection and Handling of Solid Waste Generated and/or Accumulated in the City of Santa Ana" with Great Western Reclamation, a division of CONTRACTOR, to effectuate the new curbside service collection program. F. On June 19, 1997, CITY entered into an Agreement entitled "Second Amended and Restated Agreement for the Collection and Handling of Solid Waste Generated and/or Accumulated in the City of Santa Ana" with Great Western Reclamation, a division of CONTRACTOR, to clarify the responsibilities associated with the collection, handling, and processing of solid waste collected by CONTRACTOR. 425787v2 60 B-342 G. On April 3, 2005, CITY entered into an Agreement entitled "Third Amended and Restated Agreement for the Collection and Handling of Solid Waste Generated and/or Accumulated in the City of Santa Ana" with USA Waste of California, Inc., a division of CONTRACTOR, in order to, among other things: (i) extend the term of the Agreement to June 30, 2018, (ii) incorporate new programs to increase recycling and reduce illegal disposal of used oil, as well as to reduce illegal dumping and litter throughout the CITY and (iii) include measures to ensure continued compliance with the 50% diversion requirements as imposed by the State of California. H. On June 20, 2017, CITY entered into a Fourth Amended and Restated Agreement with USA Waste of California, Inc., a division of CONTRACTOR, to incorporate the provisions of previous amendments and to clarify, update and realign other provisions of the Agreement, No. A-2006-071-01 ("Fourth Amended Agreement") I. Effective December 5, 2017, the Parties entered into an extension of the Fourth Amended Agreement, No. A-2017-342, and added certain other provisions, including new programs to increase recycling throughout the CITY, measures to ensure continued compliance with state diversion requirements, and clarification of CONTRACTOR's correct legal name. The term of the Fourth Amended Agreement was extended through June 30, 2020 with provision for extension through June 30, 2021 by mutual agreement of the Parties. J. On December 18, 2018, the Parties entered into an Amendment to the Fourth Amended Agreement, No. A-2017-342-01, to provide reduced rate commercial organic waste recycling services. K. On June 4, 2019, the Parties mutually agreed to extend the term of the Fourth Amended Agreement through June 30, 2021. L. The Fourth Amended Agreement remains in effect, and the Parties now wish to further extend the term of the Fourth Amended Agreement and include certain other provisions in accordance with Assembly Bill 1594. The Parties therefore agree: 1. EFFECTIVENESS OF SECOND AMENDMENT CONTINGENT: This Second Amendment shall become effective only upon (1) the absence of a majority protest following the completion of the procedures set forth in Article XIII D, Section 6 of the California Constitution and (2) subsequent approval by resolution of the City Council of the City of Santa Ana of the rate increases described in Section 3 below. 2. TERM OF CONTRACT: The term of the Fourth Amended Agreement shall be extended from June 30, 2021 through June 30, 2022 should the Second Amendment become effective as set forth in Section 1. 3. GREEN WASTE MATERIAL DISPOSAL FEE: Assembly Bill 1594 mandates that as of January 1, 2020, the use of green waste material as alternative daily cover no longer constitutes diversion through recycling and will instead be considered disposal in terms of measuring a jurisdiction's annual per capita disposal rate. As a result, CITY has determined it Page 2 of 4 60 B-343 must make alternative final disposition of the CITY's green waste through composting. Therefore, the CITY will experience an increase in CITY's per ton green waste collection, processing and disposal cost, which necessitates an increase to the service fee on residential units for green waste material collection, processing and disposition by CONTRACTOR. a. Effective July 1, 2020, there shall be an increase of $1.90 to the monthly service fee per each residential unit for green waste materials collection, processing and disposal. Effective July 1, 2021, the monthly service fee shall increase by an additional $1.50 per each residential unit for green waste materials collection, processing and disposal. b. Final disposition of the green waste will occur at the Tierra Verde Industries composting facility, located in the City of Irvine. CONTRACTOR warrants that the proposed service fee increases are necessary to compensate CONTRACTOR for the actual cost paid by CONTRACTOR to Tierra Verde upon delivery of green waste materials to Tierra Verde. CONTRACTOR shall notify CITY in writing within 30 days if a lower cost option becomes available for green waste materials collection, processing and disposal at another facility in Orange County or if a lower cost is provided to another jurisdiction served by CONTRACTOR in Orange County with similar or higher green waste material contamination levels, in order to initiate a cost reduction to the CITY'S ratepayers. If so desired, CITY will have the ability to choose a lower cost composting facility for the disposal of green waste in Orange County, and the rate paid by the ratepayer will be reduced accordingly provided that the CITY's chosen composting facility is properly licensed and permitted under and in compliance with applicable laws and regulations to receive, process and dispose of green waste material and provided further that CONTRACTOR's collection, transportation, transfer, processing and disposal costs do not increase as a result of CITY's selection. 4. ALL PRIOR AGREEMENTS REMAIN IN FORCE: Except as modified by this Second Amendment, and all prior amendments and extensions, all terms and conditions of the Fourth Amended Agreement, as extended, remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to the Fourth Amended Agreement on the date and year first written above. ATTEST CITY OF SANTA ANA DAISY GOMEZ Clerk of the Council APPROVED AS TO FORM SONIA R. CARVALHO, City Attorney By; 7�,-f JOHN M. Assistant City Attorney Page 3 of 4 KRISTINE RIDGE City Manager CONTRACTOR y Corcoran President 60 B-344 RECOMMENDED FOR APPROVAL NABIL SABA Acting Executive Director Public Works Agency Page 4 of 4 60B-345 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2020 CLERK OF COUNCIL USE ONLY: TITLE: APPROVED DISCUSS THE FEASIBILITY OF A DOG ❑ PARK AT CENTENNIAL PARK AND ❑ PROVIDE DIRECTION TO STAFF 0 /s/Kristine Ri CITY MANAGER As Recommended As Amended Ordinance on 1s' Reading Ordinance on 2nd Reading Implementing Resolution Set Public Hearing For_ CONTINUED TO FILE NUMBER RECOMMENDED ACTION Discuss the feasibility of a dog park at Centennial Park and provide direction to staff. DISCUSSION On December 3, 2019, the City Council directed the City Manager to study the feasibility of a dog park at Centennial Park. Below is some historical context relating to prior studies completed by staff regarding the feasibility of a dog park in Santa Ana, as well as recently completed analysis on this same topic and next steps. A. Dog Park Study 2010 (Exhibit 1) In April 2010, the City Council and a few residents were interested in developing a dog park in the city. City staff conducted a survey of all Orange County cities and found that 14 cities had a dedicated dog park, while 19 cities did not. Dog parks throughout the County include the following: Characteristics of the Dog Park Details Hours Majority dawn to dusk or 8 .m. Fences 4 feet to 8 feet high Allow Small Dos 9 cities Allow Large Dos 12 cities Surface Type Grass, dirt or wood chips Shade Trees, structure or umbrellas Dog Waste Dispensers 8 cities Restroom 9 cities Dog Park Size /z acre to 2.8 acres Operator City or Foundation Parking 2 cities Supervision None or Part-time Dog License Required 14 cities Access To Non -Residents 14 cities 65A-1 Feasibility of a Dog Park at Centennial Park March 3, 2020 Page 2 Annual Operating Budget $5,000 to $86,000 Revenue Donations (Approx. $15,000 B. Dog Park Feasibility Study 2011 (Exhibit 2) On April 27, 2011, the Parks, Recreation, and Community Services Agency (PRCSA) completed a Dog Park Feasibility Study. The study resulted in identifying criteria for a dog park that included adequate parking, adequate space (Minimum 1.5 acres), and the following: • Not in close proximity to homes • No negative impact to current users PRCSA analyzed all City parks and other public lands and provided two options for consideration to the Board of Recreation and Parks (Board) for discussion: • State Property at Bristol and Garden Grove Freeway (2.10 acres) • Centennial Park — Fire Training Facility (3.54 acres) The Board requested that staff investigate the State Property possibilities. Preliminary discussions were held with Caltrans, resulting in the State willing to enter into a lease under the condition that the area would revert to the State, if needed for future freeway widening and/or staging area. A concept plan was prepared that identified the next steps that included the following: • Obtain approval to negotiate a lease agreement with the State • Identify funding source and construction cost • Develop dog park rules and regulations Due to other park priorities and funding needs, the project did not move forward. C. Dog Park Feasibility: Centennial Park City staff determined a dog park located at Centennial Park (Exhibit 3) is feasible in the 3.54- acre plot of land behind the Reservations Office (southwest corner of the park). The location met the minimum required criteria from the 2011 analysis, based upon characteristics of dog parks in other cities, to be determined feasible. The dog park would include a double -gated entry with exit points and have ADA accessibility, large turf area in the center, fenced -in area for small dogs and large dogs, interior cement walkway inside park, pet/human drinking fountains, shade structure/areas, a doggie waste dispenser, adequate drainage, gates with auto locks, seating, trees, and other appropriate amenities. Next steps to move forward are as follows: 1. Approval of land conversion from United States Department of the Interior - National Park Service. 2. Identify funding to design, develop and maintain the site. 3. Hire a consultant to develop concept plan, construction drawings, and cost estimate. The approximate cost to develop this site $1,600,000. 65A-2 Feasibility of a Dog Park at Centennial Park March 3, 2020 Page 3 D. Future Dog Park Locations For Fiscal Year 2020-21, PRCSA is requesting funding to embark on preparing a 10-year Parks Master Plan (Master Plan) process. The goal of the Master Plan will be to articulate a clear vision (a "road map") for the City Santa Ana's future that: • Identifies and serves current and future parks, recreation and community service needs through an integrated park system that provides adequate open space, recreational services and facilities, trails, and stewardship of natural and cultural resources. • Provides an accessible and diverse offering of parks and recreation facilities to all residents of Santa Ana. • Utilizes the current Trails Master Plan and the Active Transportation Plan to address connectivity and development of trails for walking, hiking, and biking uses. • Develops an action plan for prioritizing, phasing, funding, and accomplishing the identified needs. The purpose of the comprehensive Master Plan will be to focus on immediate, short-term, and longer -term capital development and improvement strategies that correspond to the community's unmet needs and priority investments for critical parks, recreation and community services. The Master Plan will identify, among other goals and initiatives, future dog parks and/or dog run locations. The Master Plan will also provide guidance for Santa Ana's public parks, open space and trails. As this process moves forward, staff will provide informational updates to the City Council accordingly. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Strategic Plan Goal #5 - Community Health, Livability, Engagement & Sustainability, and Objective #6 (focus projects and programs on improving the health and wellness of all residents). FISCAL IMPACT This is no fiscal impact associated with this action. Lisa Rudloff Executive Director Parks, Recreation, and Community Services Agency Exhibits: 1. 2010 Dog Park Study 2. 2011 Dog Park Study 3. Centennial Park Site Map 65A-3 o /} \}\ /// / \i /� t o d! \) }\\\ / \/ /\) \/ ` o } f} } - \o } \ { \{\\} } o o o o o o o o o o i))\;)) {z)}};){\; ){(: )\ 2 s uEeko § Is � 'o 0 R 2 r So& 41 w¥ ! \ *� w , : // \- ~ ow ^ E - _ _ , - do \00GK ro aro N C N C: �L O IL 4-Jro U 0 ro m s K W� D U) F�1 N a W LL 19 a W a� imp am 4a 0 Dim V z 0 z LL S 214 � pl > O r>a > C L ( C IN O U 0 N ra U �, C C ro Qo � o ro o o- ro : ro o n C 0-0 f L ro U N O rl (n D a-J 0 �o oE� U �° fo E O = N \ L a-J � L 0 a fo O L E �O U a_+ J -� Q DU \ '�>,ocnC —4-+4-'1i U C ro 0)O C E a--i U L fo0 N — C N N �Cvors m a o a - X i� Q a--+ ate-J L C wQ)M. 0 vvU� N �� 0 -ONN_O�M cn > — �' O N O N ra ra U 0)'O (n 'a >. C 0 0 � L C 0 0 0707•— N >,fo N >,�D�-0'- ��,vv� O O O- .— O �+ fo U C> aazz C - OM CUUcn o W cn0 azo- a coo L a-J LU O � LL :3Ln N N LL `� `� _0V Ln 10 > 0-O O Q cn N � N L > Q) 0 'L � J J U a C Q C � i fa Q X CN U) Lm C: 0) C C O L\�==zp 0'ca _ N O O U-) u, —' al fa yUU)C:3 Lug O U D O N cn J oC � � 3 v V O C > O N y L O � L Z3< z, O�:L-J > --LL O -0 10 z; ra UQ O nNfafuJ00m>`N n U N— J Q � : n � � L fa -O � O JN�1��NQX�= � oC � LU U fa C V_ J fu 0 0 C LU If 1; Y. 41p, ru CL ru 0 >m (1) 0) C� ru L. 0 4- 0 65 A s K W� D U) z O I --I W a N O rLn v L ro L- ro r� V C: C: ro () o U cn ro �L m 4-J ro �U ro a-J L 0) r �ro 4 a, ro U)LLLL 65A-10 III `-� V N L U m O rl N m i LL N L U m L,n m LL �iJ i . E m i FM i LL mte i m m 65A-12 CD c z fu Ln a� U U Q 3 0 J 7 s K W� D U) C6 N a-J •U L — O L Ul) O � a) L E •ra 4 L � • o (n U L cn N U ateJ 0) cn N U i N Q N L E N Nro U '� � (n � � O 0 ro N 0 0 N U o z o z�w oc�0� 65A-13 II REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2020 TITLE PUBLIC HEARING —APPROVE A DISPOSITION AND DEVELOPMENT AGREEMENT WITH THRIVE SANTA ANA, INC. AND A NINETY-NINE YEAR GROUND LEASE FOR THE DEVELOPMENT OF A MICROFARM AT 1901 W WALNUT AVENUE /s/Kristine Ridt CITY MANAGER CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s' Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER RECOMMENDED ACTION 1. Conduct a Public Hearing required pursuant to California Government Code 53083. 2. Authorize the City Manager to execute a Disposition and Development Agreement with THRIVE, Santa Ana, Inc. for the development of a microfarm at 1901 W Walnut Street and to execute a 99-year Ground Lease, at a lease rate of one dollar per month, upon the terms and conditions contained in the Development and Disposition Agreement, subject to non - substantive changes approved by the City Manager and the City Attorney. DISCUSSION On September 17, 2019, the City Council approved a Second Exclusive Negotiation Agreement (ENA) with THRIVE Santa Ana, Inc. (THRIVE) and authorized the City Manager to negotiate a Disposition and Development Agreement (DDA) for the development of a microfarm at 1901 West Walnut Street (APN# 007-332-08), a 0.38-acre City -owned property. During the ENA period, THRIVE submitted an initial pro forma, Phase I Environmental Assessment, a community benefits report, and site plans to the City. Most recently, staff met with THRIVE to negotiate terms of a DDA. The DDA (Exhibit 1) is a document designed to achieve the development of the site in a coordinated and comprehensive manner. The terms of the DDA stipulate that THRIVE, as the developer, must obtain entitlements, construction financing, permanent financing, evidence equity, and obtain building permits, prior the City executing the Ground Lease attached to the DDA. Once the terms of the DDA are met, the City Manager would execute the Ground Lease for the negotiated 99-year term, at a lease rate of $1 per month. The DDA is a protection for the City to ensure that the disposition of the property results in the proposed development of a microfarm within a reasonable timeframe. A summary of the proposed terms of the DDA and the Ground lease are outlined in the table below: 75A-1 DDA THRIVE Santa Ana, Inc. March 3, 2020 Page 2 AGREEMENT SUMMARY OF KEY TERMS • 1-year term, with 1-year extension option • THRIVE to accept the property as is, without liability to the City. • THRIVE agrees that the City shall not provide any financial assistance to the developer in connection with the project. THRIVE is solely responsible for paying for all costs of the development. • THRIVE must do the following prior to the Ground Lease execution: DDA o Obtain all entitlements and building permits o Obtain construction and permanent financing o Provide the City with sufficient evidence of equity • After commencement of improvements, THRIVE shall not permit the work of the improvements to cease or be suspended for more than 45 days (consecutive or aggregate). • Terminates upon issuance of Certificate of Occupancy • 99-year lease to be executed and effective once certain DDA conditions are met but prior to commencement of construction • Lease rate of $1 per month • THRIVE must maintain adequate standards of operation at THRIVE's sole expense, such as: Ground Lease o Ensure adequate security measures to reasonably protect persons, property, and premise o Maintain the site operational as a microfarm, and not abandon or vacate the premises at any time o Insurance Proposed Development THRIVE proposes to develop a microfarm to grow and distribute fresh produce and ornamentals, and host weekly open-air markets and community activities that promote health. The site would include raised garden beds, a work area, produce pick-up table, and lunch tables. In partnership with a local food cooperative, items would be sold through a community -supported production model, wherein members pay a monthly subscription to receive a box of produce at their home, or available for pickup. An on -site parking lot would host the open-air markets. The site has been vacant for over 12 years. It was acquired by the City in 2007, and the former Orange County Rescue Mission structure was demolished in 2011. The site was recently rezoned as C2 (General Commercial) and the proposed microfarm is a permitted use within that zone. The plans (Exhibit 2) for the microfarm are now in the second review phase with the City's Planning and Building Agency. Community Outreach and Benefits THRIVE is a community land trust dedicated to the stewardship of land for the permanent benefit of local residents. THRIVE was established in 2017 by local nonprofit leaders and residents to 75A-2 DDA THRIVE Santa Ana, Inc. March 3, 2020 Page 3 acquire land in Santa Ana for the purposes of providing community benefits, such as affordable housing, parks, urban microfarms, and marketplaces for small businesses. Since 2016, nonprofit groups such as Santa Ana Building Healthy Communities, who are now part of the THRIVE board of directors, have conducted community engagement to educate local residents and inform them about the benefits of community land trusts which include promotion of health and wellness, supporting long-term housing affordability, and building generational wealth. THRIVE conducted community outreach for the site, inclusive of over 20 events and surveys of the surrounding area. Based on the outreach conducted, THRIVE determined that a microfarm would be a community benefit for the area. This project would be the first acquisition and development project by THRIVE. A Community Benefits Report prepared by THRIVE describes the positive impacts of a microfarm to the community. These benefits include the following: 1) making organic produce and other healthy options more available in the local neighborhood; 2) implementing a membership -based model to provide monthly baskets of vegetables, fruit and other garden products to members at a low cost; 3) creating worker cooperative jobs; 4) encouraging participation from local residents which can contribute to the local neighborhood economy, civic engagement; and 5) prevention of costly health conditions including obesity and mental health illnesses. Surplus Land California Government Code Section 54234 regarding surplus land stipulates that if a local agency, as of September 30, 2019, has entered into an exclusive negotiation agreement (ENA) to dispose of property or legally binding agreement, the new provisions effective January 1, 2020 do not apply, provided that the disposition is completed not later than December 31, 2022. As the property is in an ENA since September 17, 2019, the new provisions do not apply and this property is not subject to the Surplus Lands Act. Economic Development Subsidy Government Code Section 53083 requires that the City Council must hold a noticed public hearing and, prior to the public hearing, provide information to the public through the City's website regarding the proposed economic development subsidy. As part of the approval process, an Economic Development Subsidy Report (Exhibit 3) must be completed and submitted detailing the structure of the public subsidy, projected tax benefits and estimated number of jobs that would be created by the subsidy. This report shall remain available to the public and posted on the City's website until the end date of the economic development subsidy. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act (CEQA), the recommended action is exempt from CEQA pursuant to State CEQA Guidelines Section 15332 (Class 32 — Infill Development). Class 32 exempts infill development in an urban area of less than 5 acres that is consistent with general plan and zoning regulations, where the site has no value as habitat for threatened species, and where the project will not have a significant effect on traffic, noise, air quality or water quality. The proposed project consists of the development of a microfarm at an 75A-3 DDA THRIVE Santa Ana, Inc. March 3, 2020 Page 4 infill site. The site was a homeless shelter that was demolished in 2011 and has since been a vacant dirt lot. Development of a microfarm will not have an adverse effect on habitat for threatened species and would not significantly have a negative effect on traffic, noise, air quality or water quality. There are no features that distinguish this project from others in the exempt class and, therefore, there are no unusual circumstances. As a result, a CEQA exemption will be filed for this project. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #5 - Community Health, Livability, Engagement and Sustainability), Objective #4 (support neighborhood vitality and livability), Strategy B (improve neighborhood quality by locating or providing access to complementary services and public facilities, including access to healthy food options (community gardens, farmers' markets, corner markets, etc.) in neighborhoods). FISCAL IMPACT Once the terms of the DDA are met, a Ground Lease will be executed with THRIVE. The Ground Lease is estimated to commence as early as April 1, 2021 and will recognize $12 per year, during the 99-year ground lease term, into the Miscellaneous Revenue, Rental of Property account (no. 01102002-57960). APPROVED AS TO FUNDS AND ACCOUNTS: Steven A. Mendoza Kathryn Downs, CPA Executive Director Executive Director Community Development Agency Finance and Management Services Agency Exhibits: 1. Development and Disposition Agreement with Ground Lease 2. Site Plans 3. Economic Development Subsidy Report 75A-4 RECORDED AT REQUEST OF CLERK, CITY COUNCIL CITY OF SANTA ANA WHEN RECORDED RETURN TO: City of Santa Ana 20 Civic Center Plaza (M-_) P.O. Box 1988 Attention: City Clerk Exempt from Filing Fees Gov. Code Sections 27383, 6103 DISPOSITION AND DEVELOPMENT AGREEMENT by and between the City of Santa Ana, a California charter city in the County of Orange of the State of California, and THRIVE Santa Ana, Inc., a California public benefit corporation. [Dated as of March 3, 2020, for reference purposes only] 75A-5 CITY OF SANTA ANA DISPOSITION AND DEVELOPMENT AGREEMENT Community Micro -Farm Project at 1901 West Walnut Street, Santa Ana THIS DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement") is dated as of March 3, 2020, for reference purposes only, and is entered into by and between the CITY OF SANTA ANA, a California charter city in the County of Orange of the State of California ("City"), and THRIVE Santa Ana, Inc., a 501(c)(3) tax exempt California public benefit corporation ("Developer") (collectively, the "Parties," and each a "Party"). The Parties enter into this Agreement with reference to the following recited facts (collectively, the "Recitals," and each a "Recital"): RECITALS A. The City owns that certain real property generally located at 1901 West Walnut Street, Santa Ana, California 92703 (APN 007-332-08), and as more particularly described in the Legal Description attached to this Agreement as Exhibit "A" and incorporated herein by reference ("Property"). B. The Developer proposes to develop a community micro -farm on the Property. The term "micro -farm" refers to a small space primarily used to cultivate crops in an urban or suburban setting. Additionally, micro -farms are used to teach gardening and farming skills to community members. Developer will use a comprehensive assessment of community needs to determine the specific use of the Property, as particularly described in the Project Description attached to this Agreement as Exhibit "B" and incorporated herein by reference ("Project'). C. On May 1, 2018, the Parties entered into an Exclusive Negotiation Agreement (No. A-2018-117) to negotiate the potential future development of the Property. Developer successfully completed a majority of Agreement milestones. D. On September 17, 2019, the Parties entered into a Second Exclusive Negotiation Agreement (No. N-2019-206) to complete the final two milestones related to project financing and finalizing City staff approvals. The term of the Second Exclusive Negotiation Agreement will expire on the earlier of the execution of this Agreement or March 15, 2020. E. The proposed Project will result in the redevelopment of underutilized land, development of a community micro -farm for the benefit of local residents, and increased employment opportunities within the City produced by the Project. F. Based on the reasons identified in Recital E, above, together with the commitments and obligations of the Developer to develop the Property as contained in this Agreement, the City has determined that the lease of the Property to the Developer for development of the Project in accordance with this Agreement is in the best interest of the City. 75A-6 G. The City desires to lease the Property, and the Developer desires to enter into a lease of the Property for the purpose of development of the Project on the Property on the terms and conditions set forth in this Agreement. NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH THE PARTIES ACKNOWLEDGE, AND PURSUANT TO THE PROMISES AND COVENANTS SET FORTH IN THIS AGREEMENT, THE PARTIES AGREE, AS FOLLOWS: ARTICLE 1 PURPOSE, PARTIES, PROPERTY, AND USE 1.1 Recitals. The Recitals are hereby incorporated into this Agreement. 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 lease of the City Property from the City to the Developer, and the design, development, construction and operation of the Project on the Property. 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. As such, the development of the Property 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 City. The City is the City of Santa Ana, a California charter city. The principal office of the City is located at 20 Civic Center Plaza, Santa Ana, California 92702. 1.3.2 The Developer. The Developer is THRIVE Santa Ana, Inc., a 501(c)(3) tax exempt California public benefit corporation. The principal address of the Developer is located at P.O. Box 1935, Santa Ana, CA 92702. Whenever the term "Developer" is used herein, such term shall include any permitted nominee, assignee or successor in interest as herein provided. (a) 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 Section 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 involuntary) in the management or control of the Developer without City's prior written approval, which approval will not be unreasonably 2 75A-7 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. (b) Notwithstanding the foregoing, the following assignments or transfers of this Agreement and the Property shall be permitted: (i) the sub -lease of micro -farm or commercial space to tenants or end -users, for occupancy upon completion; or, (ii) 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. 1.4 Property. The Property is that certain real property generally located at 1901 West Walnut Street, Santa Ana, California 92703 (APN 007-332-08), as more particularly described in the Legal Description attached to this Agreement as Exhibit "A". 1.5. Use. Developer intends to use the Property pursuant to the Project Description attached to this Agreement as Exhibit "B". During the pre -development and construction timeframe, the use of the Property shall include special events planned by Developer, only upon prior approval by the City. After the completion of construction, the certificate of occupancy issued by the City shall govern the allowable uses on the Property, which shall include micro - farm and ancillary secondary uses. Any request by Developer to change the Project or use of the Property shall be subject to all applicable City review procedures and Approvals. ARTICLE 2 DEFINITIONS 2.1 Defined Terms. In addition to the usage of certain words, terms or phrases that are defined in the initial paragraph, the Recitals or in the body of this Agreement, the following words, terms and phrases are used in this Agreement, as follows, unless the particular context of usage of a word, term or phrase requires another interpretation: 2.1.1 "Approvals" means any and all licenses, permits, approvals, consents, certificates (including certificate(s) of occupancy), rulings, variances, authorizations, or amendments to any of the foregoing, as shall be necessary or appropriate under any Law to commence, perform, or complete any construction, demolition, installation, use, maintenance, repair, occupancy or operation of the Project. 2.1.2 "Automobile Liability Insurance" means insurance coverage against claims of personal injury (including bodily injury and death) and property damage covering all owned, leased, hired and non -owned vehicles used by the Developer regarding the Project, with minimum limits for bodily injury and property damage of ONE MILLION DOLLARS ($1,000,000) each occurrence and TWO MILLION DOLLARS ($2,000,000) aggregate. Such insurance shall be provided by a business or commercial vehicle policy. 3 75A-8 2.1.3 `Bankruptcy Law" means Title 11, United States Code, and any other or successor State or Federal statute relating to assignment for the benefit of creditors, appointment of a receiver or trustee, bankruptcy, composition, insolvency, moratorium, reorganization, or similar matters. 2.1.4 `Bankruptcy Proceeding" means any proceeding, whether voluntary or involuntary, under any Bankruptcy Law. 2.1.5 `Builder's Risk Insurance" means "All Risk" builder's risk insurance on a completed value (non -reporting) basis, in an amount sufficient to prevent coinsurance, but in any event not less than 100% of replacement value, including cost of debris removal, but excluding foundation and excavations, naming the City and the Developer, as their interests may appear. Such insurance shall also: (a) contain a waiver of subrogation against subcontractors; (b) state that "permission is granted to complete and occupy'; (c) cover, for replacement value, all materials and equipment on or about any offsite storage location intended for use for the Project; and (d) provide for a deductible not exceeding Ten Thousand Dollars ($10,000). 2.1.6 "CEQA" means the California Environmental Quality Act, Public Resources Code Sections 21000, et seq. 2.1.7 "CEQA Document" means any Negative Declaration (mitigated or otherwise) or any Environmental hnpact Report (including any addendum, amendment, subsequent or supplemental document) required by any Government to issue any discretionary Approval required for the Project. 2.1.8 "City Manager" means the City Manager of the City or his or her designee or successor in function. 2.1.9 "City Parties" means, collectively, the City, its governing body, elected officials, employees, agents and attorneys. 2.1.10 "City Party" means, individually, the City, its governing body, elected officials, employees, agents or attorneys. 2.1.11 "Claims" means any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort, contract or under statute, at law, in equity or otherwise), charges, awards, assessments, fines or penalties of any kind (including consultant and expert fees and expenses, Legal Costs of counsel retained by the City Parties, expert fees, costs of staff time and investigation costs of whatever kind or nature), and judgments, including, but not limited to, claims for: (i) injury to any Person (including death at any time resulting from that injury); (ii) loss of, injury or damage to, or destruction of property (including all loss of use resulting from that loss, injury, damage, or destruction) regardless of where located, including the property of the City Parties; (iii) any workers' compensation claim or determination; (iv) any Prevailing Wage Action; or (v) any Environmental Claim. 2.1.12 "Contractor's hisurance" means Contractor's comprehensive general and automobile liability insurance for not less than One Million Dollars ($1,000,000) for 4 75A-9 personal injury and One Million Dollars ($1,000,000) for broad form property damage, including premises -operations liability, contractor's protective liability for all subcontractors' operations, completed operations, contractual liability (referring to the indemnity provisions of the applicable construction contract(s)), and automobile liability (owned and non -owned), and for any foundation, excavation, or demolition work, an endorsement that such operations are covered and that the "XCU Exclusions" have been deleted, which insurance may be in the form of a single limit policy or policies. 2.1.13 "Control" means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether by ownership of Equity Interests, by contract or otherwise. 2.1.14 "Controlling" and "Controlled" mean exercising or having Control. 2.1.15 "County" means the County of Orange, California. 2.1.16 "CPI" means the United States Department of Labor, Bureau of Labor Statistics "Consumer Price Index" for Urban Wage Earners and Clerical Workers (CPI-W) published for the Anaheim -Santa Ana -Irvine Metropolitan Statistical Area, with a base of 1982- 1984 = 100. If the CPI ceases to be published, with no successor index, then the Parties shall reasonably agree upon a reasonable substitute index. The CPI for any date means the CPI last published before the calendar month that includes such date. 2.1.17 "CPI Adjustment Factor" means, as of any date, the greater of (a) 1.00 or (b) the CPI for such date divided by the CPI for the Commencement Date. 2.1.18 "Default" means any Monetary Default or Non -Monetary Default. 2.1.19 "Developer Official Action" means the official action of the Developer authorizing the Developer's entry into and performance of this Agreement, in substantially the form attached to this Agreement as Exhibit "D", executed by the authorized representative(s) of the Developer. 2.1.20 "Developer Parties" means, collectively, the directors, officers, employees and agents of the Developer. 2.1.21 "Developer Party" means, individually, the directors, officers, employees or agents of the Developer. 2.1.22 "Due Diligence Completion Notice" means a written Notice of the Developer delivered to the City, prior to the end of the Due Diligence Period, indicating the Developer's unconditional acceptance of the condition of the Property or indicating the Developer's rejection or conditional acceptance of the condition of the Property and refusal to execute the Lease to the Property, describing in reasonable detail the actions that the Developer reasonably believes are indicated to allow the Developer to unconditionally accept the condition of the Property. 75A-10 2.1.23 "Due Diligence Investigations" means the Developer's due diligence investigations of the Property to determine the suitability of the Property for development or operation of the Project, including, without limitation, investigations of the environmental and geotechnical suitability of the Property, as deemed appropriate in the reasonable discretion of the Developer, all at the sole cost and expense of the Developer. 2.1.24 "Due Diligence Period" means the one hundred and eighty (180) calendar day period commencing on the day immediately following the Effective Date and ending at 5:00 p.m. Pacific Time on the one hundred eightieth (180s') consecutive day thereafter. 2.1.25 "Effective Date" means the first date on which all of the following have occurred: (i) the City has received two (2) counterpart originals of this Agreement executed by the authorized representative(s) of the Developer; (ii) the City has received a certified copy of the Developer Official Action executed by the authorized representative(s) of the Developer; (iii) this Agreement has been approved by the City governing body; (iv) this Agreement has been executed by the authorized representative(s) of the City; (v) an original of this Agreement executed by the authorized representative(s) of the City has been delivered by the City to the Developer. 2.1.26 "Environmental Claims" means any and all claims, demands, damages, losses, liabilities, obligations, penalties, fines, actions, causes of action, judgments, suits, proceedings, costs, disbursements and expenses, including, without limitation, Legal Costs and costs of environmental consultants and other experts, and all foreseeable and unforeseeable damages or costs of any kind or of any nature whatsoever directly or indirectly relating to or arising from any actual or alleged violation of any Environmental Law occurring during or arising from the Developer's Due Diligence Investigations, the Developer's occupancy of the Property, the Developer's construction, installation or operation of the Project or any other actions of or attributable to the Developer regarding the Property. 2.1.27 "Environmental Law" means any Law regarding any of the following at, in, under, above, or upon the Property: (a) air, environmental, ground water, or soil conditions; or (b) clean-up, control, disposal, generation, storage, release, transportation, use of, or liability or standards of conduct concerning, Hazardous Substances. 2.1.28 "Event of Default" means the occurrence of any one or more of the following: (a) Monetary Default. A Monetary Default that continues for seven (7) days after Notice from the non -defaulting Party, specifying in reasonable detail the amount of money not paid and the nature and calculation of each such payment. (b) Prohibited Liens. Failure of the Developer to cause any Prohibited Lien to be released within fifteen (15) days after Notice of such lien to the Developer. (c) Bankruptcy or Insolvency. The Developer ceases to do business as a going concern, ceases to pay its debts as they become due or admits in writing that it is unable to pay its debts as they become due, or becomes subject to any Bankruptcy Proceeding 6 75A-11 (except an involuntary Bankruptcy Proceeding dismissed within sixty (60) days after commencement), or a custodian or trustee is appointed to take possession of, or an attachment, execution or other judicial seizure is made with respect to, substantially all of the Developer's assets or the Developer's interest in this Agreement (unless such appointment, attachment, execution, or other seizure was involuntary and is contested with diligence and continuity and vacated and discharged within sixty (60) days). (d) Transfer. The occurrence of a Transfer, other than a Permitted Transfer, whether voluntarily or involuntarily or by operation of Law, in violation of the terms and conditions of this Agreement. (e) Non -Monetary Default. Any Non -Monetary Default, other than those specifically addressed in Sections 2.1.28(b) through 2.1.28(d), that is not cured within thirty (30) days after Notice to the Developer describing the Non -Monetary Default in reasonable detail, or, in the case of a Non -Monetary Default that cannot with reasonable due diligence be cured within thirty (30) days after such Notice, if the Developer does not do all of the following: (i) within thirty (30) days after the City's Notice, advise the City of the Developer's intention to take all reasonable steps to cure such Non -Monetary Default; (ii) duly commence such cure within such period, and then diligently prosecute such cure to completion; and (iii) complete such cure within a reasonable time under the circumstances. 2.1.29 "Federal" means the government of the United States of America. 2.1.30 "Final" means, relative to an Approval or any CEQA Document, when all administrative appeal periods regarding such matter have expired, all administrative appeals or challenges regarding such matter (if any) have been resolved to both the City's and the Developer's reasonable satisfaction, all statutory periods for challenging such matter have expired, all litigation or other proceedings (if any) challenging any such matter have been resolved to both the City's and the Developer's reasonable satisfaction and all appeal periods relating to any such litigation or other proceedings have expired. 2.1.31 "Hazardous Substance" means flammable substances, explosives, radioactive materials, asbestos, asbestos -containing materials, polychlorinated biphenyls, chemicals known to cause cancer or reproductive toxicity, pollutants, contaminants, hazardous wastes, medical wastes, toxic substances or related materials, explosives, petroleum, petroleum products, and any "hazardous" or "toxic" material, substance or waste that is defined by those or similar terms or is regulated as such under any Law, including any material, substance or waste that is: (i) defined as a "hazardous substance" under Section 311 of the Water Pollution Control Act (33 U.S.C. § 1317), as amended; (ii) substances designated as "hazardous substances" pursuant to 33 U.S.C. § 1321; (iii) defined as a "hazardous waste" under Section 1004 of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901, et seq., as amended; (iv) defined as a "hazardous substance" or "hazardous waste" under Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Reauthorization Act of 1986, 42 U.S.C. § 9601, et seq., or any so- called "superfund" or "superlien" law; (v) defined as a "pollutant" or "contaminant" under 42 U.S.C.A. § 9601(33); (vi) defined as "hazardous waste" under 40 C.F.R. Part 260; (vii) defined as a "hazardous chemical" under 29 C.F.R. Part 1910; any matter within the definition of 7 75A-12 "hazardous substance" set forth in 15 U.S.C. § 1262; (viii) any matter, waste or substance regulated under the Toxic Substances Control Act ("TSCA") [15 U.S.C. Sections 2601, et seq.]; (ix) any matter, waste or substance regulated under the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801, et seq.; (x) those substances listed in the United States Department of Transportation (DOT)Table [49 CFR 172.101]; (xi) any matter, waste or substances designated by the EPA, or any successor authority, as a hazardous substance [40 CFR Part 302]; (xii) any matter, waste or substances defined as "hazardous waste" in Section 25117 of the California Health and Safety Code; (xiii) any substance defined as a "hazardous substance" in Section 25316 of the California Health and Safety Code; (xiv) any matter, waste, or substance that is subject to any other Law regulating, relating to or imposing obligations, liability or standards of conduct concerning protection of human health, plant life, animal life, natural resources, property or the enjoyment of life or property free from the presence in the environment of any solid, liquid, gas, odor or any form of energy from whatever source; or (xv) other substances, materials, and wastes that are, or become, regulated or classified as hazardous or toxic under any Laws or the regulations adopted pursuant to any Laws, including manure, asbestos, polychlorinated biphenyl, flammable explosives and radioactive material. 2.1.32 "Hazardous Substance Discharge" means any deposit, discharge, generation, release, or spill of a Hazardous Substance that occurs at on, under, into or from the Property, or during transportation of any Hazardous Substance to or from the Property (whether on its own or contained in other material or property), or that arises at any time from the use or operation of the Project or any activities conducted at on, under or from the Property or any adjacent or nearby real property, or resulting from seepage, leakage, or other transmission of Hazardous Substances from other real property to the Property, whether or not caused by a Party or whether occurring before or after the Close of Escrow. 2.1.33 "Indemnify" means, where this Agreement states that any Indemnitor shall "indemnify" any Indemnitee from, against, or for a particular matter, that the Indemnitor shall indemnify the Indemnitee and defend and hold the Indemnitee harmless from and against any and all loss, cost, claims, liability, penalties, judgments, damages, and other injury, detriment, or expense (including Legal Costs, interest and penalties) that the Indemnitee suffers or incurs: (a) from, as a result of, or on account of the particular matter; or (b) in enforcing the Indemnitor's indemnity obligation. "Indemnified" shall have the correlative meaning. 2.1.34 "Indemnitee" means any Person entitled to be Indemnified under the terms of this Agreement. 2.1.35 "Indemnitor" means a Party that agrees to Indemnify any other Person. 2.1.36 "Insurance Documents" means certified copies of insurance policies, original certificates of insurance or endorsements evidencing all insurance coverage required to be obtained by the Developer, pursuant to this Agreement. 2.1.37 "Law" means all laws, ordinances, requirements, orders, proclamations, directives, rules, and regulations of any Government applicable to the Property or the Project, in any way, including any development, use, maintenance, taxation, operation, or occupancy of, or environmental conditions affecting the Property or the Project, or relating to any taxes, 75A-13 or otherwise relating to this Agreement or any Party's rights or remedies under this Agreement, or any Transfer of any of the foregoing, whether in force on the Effective Date or passed, enacted, or imposed at some later time, subject in all cases, however, to any applicable waiver, variance, or exemption. 2.1.38 "Legal Costs" of any Person means all reasonable costs and expenses such Person incurs in any legal proceeding (or other matter for which such Person is entitled to be reimbursed for its Legal Costs), including reasonable attorneys' fees, court costs and expenses and consultant and expert witness fees. 2.1.39 "Liability Insurance" means general comprehensive public liability insurance against claims for Personal injury, death or property damage occurring upon, in, or about the Property, the Project adjoining streets or passageways, providing coverage for a combined single limit of One Million Dollars ($1,000,000) for any one occurrence. The City may increase such limit up to once every three (3) years, upon at least one hundred eighty (180) days' Notice to the Developer, provided that any increased limit: (a) does not exceed the limit initially set forth herein multiplied by the CPI Adjustment Factor, rounded to the nearest multiple of One Hundred Thousand Dollars ($100,000). 2.1.40 "Monetary Default" means any failure by either Party to pay or deposit, when and as this Agreement requires, any amount of money, or evidence of any insurance coverage, whether to or with a Party or a third -party. 2.1.41 "Non -Monetary Default" means the occurrence of any of the following, except to the extent constituting a Monetary Default: (i) any failure of a Party to perform any of its obligations under this Agreement; (ii) a Party's failure to comply with any material restriction or prohibition in this Agreement; or (iii) any other event or circumstance that, with passage of time or giving of Notice, or both, or neither, would constitute a Default under this Agreement. 2.1.42 "Notice" means any consent, demand, designation, election, Notice, or request relating to this Agreement, including any Notice of Default. All Notices must be in writing. 2.1.43 "Notice of Default" means any Notice claiming or giving Notice of a Default or alleged Default. 2.1.44 "Notify" means give a Notice. 2.1.45 "Performance Schedule" means the schedule for the performance of certain actions by the City or the Developer, pursuant to the terms and conditions of this Agreement, attached to this Agreement as Exhibit "C". 2.1.46 "Person" means any association, corporation, governmental entity or City, individual, joint venture, joint-stock company, limited liability company, partnership, trust, unincorporated organization, or other entity of any kind. 9 75A-14 2.1.47 "Prevailing Wage Action" means: (i) any determination by the State Department of Industrial Relations that prevailing wage rates should have been paid, but were not, (ii) any determination by the State Department of Industrial Relations that higher prevailing wage rates than those paid should have been paid, (iii) any administrative or legal action or proceeding arising from any failure to comply with the California Labor Code provisions regarding prevailing wage payments, including maintaining certified payroll records pursuant to California Labor Code 1776, or (iv) any administrative or legal action or proceeding to recover wage amounts pursuant to California Labor Code Section 1781. 2.1.48 "Proiect" means the development of a community micro -farm on the Property. The term "micro -farm" refers to a small space primarily used to cultivate crops in an urban or suburban setting. Additionally, micro -farms are used to teach gardening and farming skills to community members. Developer will use a comprehensive assessment of community needs to determine the specific use of the Property, as particularly described in the Project Description attached to this Agreement as Exhibit "B" and incorporated herein by reference. All to be developed in accordance with the terms and conditions of this Agreement, plans and specifications approved by the City and any conditions imposed by the City in its approval of the Developer's development application(s) related to the Project. 2.1.49 "Project Completion Date" means the earlier of: (i) the date of issuance of a Certificate of Completion for the Project; or, (ii) one (1) year from the execution of this Agreement. Developer may request up to a one (1) year extension of such construction deadline from the City, which shall be reviewed administratively and may be granted or denied in the City Manager's sole discretion. 2.1.50 "Property Insurance" means insurance providing coverage for the Project and the Property, against loss, damage, or destruction by fire and other hazards encompassed under the broadest form of property insurance coverage then customarily used for like properties in the County (except earthquake or war risk) from time to time, in an amount equal to one hundred percent (100%) of the Full Replacement Value (without deduction for depreciation) of the Project (excluding excavations and foundations) and in any event sufficient to avoid co-insurance, with "ordinance or law" coverage. Such insurance may contain a deductible clause not exceeding Five Thousand Dollars ($5,000) multiplied by the then current CPI Adjustment Factor. To the extent customary for like properties in the County at the time, such insurance shall include coverage for explosion of steam and pressure boilers and similar apparatus located on the Property; coverage for terrorism; coverage against damage or loss by flood, if the Property is located in an area in which flood insurance is available under the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as such laws may be amended, modified or replaced from time to time; an "increased cost of construction" endorsement; and an endorsement covering demolition and cost of debris removal. 2.1.51 "Property Insurance Proceeds" means net proceeds (after reasonable costs of adjustment and collection, including Legal Costs) of Property Insurance, when and as received by the Developer. 10 75A-15 2.1.52 "Record," "recorded," "recording" or "recordation" each mean recordation of the referenced document in the official records of the Recorder of the County. 2.1.53 "State" means the State of California. 2.1.54 "Transfer" of any property, right or obligation means any of the following, whether by operation of law or otherwise, whether voluntary or involuntary, and whether direct or indirect: (a) any assignment, conveyance, grant, hypothecation, mortgage, pledge, sale, or other transfer, whether direct or indirect, of all or any part of such property, right or obligation, or of any legal, beneficial, or equitable interest or estate in such property, right or obligation or any part of it (including the grant of any easement, lien, or other encumbrance); (b) any conversion, exchange, issuance, modification, reallocation, sale, or other transfer of any direct or indirect Equity Interest(s) in the owner of such property, right or obligation by the holders of such Equity Interest(s); (c) any transaction described in "b" affecting any Equity Interest(s) or any other interest in such property, right or obligation or in any such owner (or in any other direct or indirect owner at any higher tier of ownership) through any manner or means whatsoever; or (d) any transaction that is in substance equivalent to any of the foregoing. A transaction affecting Equity Interests, as referred to in clauses "b" through "d," shall be deemed a Transfer by the Operator even though the Operator is not technically the transferor. A "Transfer" shall not, however, include any of the foregoing (provided that the other Party to this Agreement has received Notice of such occurrence) relating to any Equity Interest: (a) that constitutes a mere change in form of ownership with no material change in beneficial ownership and constitutes a tax-free transaction under federal income tax law and the State real estate transfer tax; (b) to member(s) of the immediate family(ies) of the transferor(s) or trusts for their benefit; or (c) to any Person that, as of the Commencement Date, holds an Equity Interest in the entity whose Equity Interest is being transferred. 2.1.55 "Unavoidable Delay" means a delay in either Party performing any obligation required to be performed by such Party under this Agreement, except payment of money, arising from or on account of any cause whatsoever beyond the Party's reasonable control, despite such Party's reasonable diligent efforts, including industry -wide strikes, labor troubles or other union activities (but only to the extent such actions do not result from an act or omission of the Party), casualty, war, acts of terrorism or riots. Unavoidable Delay shall not include delay caused by a Party's financial condition, illiquidity, or insolvency. 2.1.56 "Usury Limit" means the highest rate of interest, if any, that Law allows under the circumstances. 2.1.57 "Waiver of Subrogation" means a provision in, or endorsement to, any Liability Insurance, Automobile Liability Insurance or Property Insurance policy, by which the insurance carrier agrees to waive rights of recovery by way of subrogation against any Person for any loss such policy covers. 2.1.58 "Workers' Compensation Insurance" means worker's compensation insurance complying with the provisions of State Law and an employer's liability insurance endorsement, with commercially standard limits, covering all employees of the Developer, its contractors and vendors. I 75A-16 ARTICLE 3 PROPERTY LEASE 3.1 Prior to City Lease of Property. Prior to City leasing the Property to Developer and Developer accepting the lease of the Property from the City, Developer shall provide sufficient evidence that is satisfactory to the City, in City's sole and absolute discretion, that the following have been completed: 3.1.1 Developer has obtained all entitlements for the Project. 3.1.2 Developer has obtained construction financing for the Project. 3.1.3 Developer has obtained permanent financing for the Project. 3.1.4 Developer provided City sufficient evidence of equity. 3.1.5 Developer has obtained all necessary building permits for the Project. 3.2 Lease. Once Developer has satisfied Section 3.1, City shall lease the Property to the Developer for the Project, and the Developer shall accept the lease of the Property from the City, for a ninety-nine (99) year term, at a rental rate of one dollar (S1.00) per month, pursuant to the terms and conditions of this Agreement. City shall retain ownership of the Property. The Parties shall execute the lease of the Property from the City to the Developer pursuant to the terms of the City Lease attached herewith as Exhibit "E" and incorporated herein by reference. 3.3 Developer Due Diligence Investigations. 3.3.1 License to Enter. The City licenses and permits the Developer to enter the Property solely for the purpose of undertaking and completing such Due Diligence Investigations as the Developer deems necessary and appropriate. The license provided in this Section 3.3.1 shall expire at the earlier of: (i) the end of the Due Diligence Period or (ii) the date of Developer's delivery of the Due Diligence Completion Notice. The Developer shall conduct all of its Due Diligence Investigations at its sole cost and expense. The Developer shall abide by any reasonable additional condition(s) of entry onto the Property required by the City, whether or not set forth in this Agreement. Any Due Diligence Investigations of the Property by the Developer shall not unreasonably disrupt any then existing use or occupancy of the Property or the operations of the City. The City shall inform THRIVE of such operations or use, 14 days before said use or operations. 3.3.2 Limitations. The Developer shall not conduct any intrusive or destructive testing of any portion of the Property, other than low volume soil samples, without the City's prior written consent. Following the conduct of any Due Diligence Investigations on the Property, the Developer shall restore the Property to substantially its condition prior to the conduct of such Due Diligence Investigations. 12 75A-17 3.3.3 Indemnity: Insurance. The activities of the Developer or its agents directly or indirectly related to the Developer's Due Diligence Investigations shall be subject to the Developer's indemnity, defense and hold harmless obligations under this Agreement. Prior to commencing any Due Diligence Investigations on the Property, the Developer shall deliver copies of policies or original certificates of all required Liability Insurance. 3.3.4 Due Diligence Completion Notice. The Developer shall deliver a Due Diligence Completion Notice to the City prior to the end of the Due Diligence Period. If the Developer does not unconditionally accept the condition of the Property by delivery of its Due Diligence Completion Notice indicating such acceptance, prior to the end of the Due Diligence Period, the Developer shall be deemed to have rejected the condition of the Property and refused to accept lease of the Property. If the condition of the Property is rejected or deemed rejected by the Developer, then the City or the Developer shall have the right to cancel the lease and terminate this Agreement, in their respective sole and absolute discretion, until such time (if ever) as the City receives the Due Diligence Completion Notice stating the Developer's unconditional acceptance of the condition of the Property. Any termination of this Agreement and cancellation of the lease, pursuant to this Section 3.3.4, shall be without liability to the other Party or any other Person, and shall be accomplished by delivery of a written Notice of termination to the other Party. 3.3.5 No Representations or Warranties. The Developer shall rely solely and exclusively upon the results of its Due Diligence Investigations of the Property, including, without limitation, investigations regarding geotechnical soil conditions, compliance with all Laws applicable to the development or use of the Property by the Developer and any other matters relevant to the condition or suitability of the Property for the development or operation of the Project, as the Developer may deem necessary or appropriate. The City makes no representation or warranty, express or implied, to the Developer relating to the condition of the Property or suitability of the Property for any intended use or development by the Developer. 3.3.6 Acceptance of Property 'AS -IS." The Developer shall accept all conditions of the Property, without any liability of the City Parties whatsoever, upon the Developer's unconditional acceptance of the condition of the Property indicated in its Due Diligence Completion Notice. The Developer's delivery of its Due Diligence Completion Notice indicating the Developer's unconditional acceptance of the condition of the Property shall evidence the Developer's unconditional and irrevocable acceptance of the Property in the Property's AS IS, WHERE IS, SUBJECT TO ALL FAULTS CONDITION, WITHOUT WARRANTY AS TO QUALITY, CHARACTER, PERFORMANCE OR CONDITION and with full knowledge of the physical condition of the Property, the nature of the City's interest in and use of the Property, all Laws applicable to the Property, and of any and all conditions, restrictions, encumbrances and all matters of record relating to the Property. The Developer's delivery of its Due Diligence Completion Notice indicating the Developer's unconditional acceptance of the condition of the Property shall constitute the Developer's representation and warranty to the City that the Developer has received assurances acceptable to the Developer by means independent of the City or any agent of the City of the truth of all facts material to the Developer's lease of the Property pursuant to this Agreement, and that the Property is being leased by the Developer as a result of its own knowledge, inspection and investigation of the Property and not as a result of any representation(s) made by the City or any employee, official, 13 75A-18 consultant or agent of the City relating to the condition of the Property, unless such statement or representation is expressly and specifically set forth in this Agreement. The City hereby expressly and specifically disclaims any express or implied warranties regarding the Property. 3.4 City Pre -Lease Document Approval. 3.4.1 Developer Delivery of Documents. The Developer shall deliver all of the following described documents to the City at least forty-five (45) calendar days prior to the execution of the Lease: (a) All Insurance Documents; and, (b) Any covenants, conditions or restrictions proposed for the Property. 3.4.2 City Approval. Within thirty (30) calendar days after the City receives any item required to be delivered to the City by the Developer, the City shall Notify the Developer whether or not such submitted matter is reasonably acceptable to the City. Any Notice from the City stating that a particular submitted matter is not acceptable to the City shall also state the actions that the City reasonably believes are required to make such matter acceptable to the City. Within thirty (30) calendar days after receipt of any Notice from the City stating that a submitted matter is not acceptable to the City, the Developer shall appropriately revise any matter disapproved by the City in a manner intended in good faith to obtain the City's approval of such matter and re -submit such matter to the City for approval. The process applicable to the City's consideration of the initial submittal of any matter shall apply to any re -submittal of such matter, following its disapproval by the City. If the City fails to Notify the Developer that it does not approve of any submitted matter within the requisite thirty (30) calendar day period, then the City shall be deemed to have approved such matter. 3.5 City Relocation Assistance. 3.5.1 Relocation. The Property is vacant, and therefore, the City has no known relocation and related obligations. Notwithstanding the foregoing, as between the City and the Developer, the City shall be responsible, at its sole cost and expense, for any and all relocation and related expenses attributable to the relocation of the occupants of the Property, if any. The City shall defend, indemnify and hold the Developer and its officers, employees, agents, attorneys, and contractors harmless from and against all liability for any relocation and related expenses attributable to the development of the Property and the relocation of its previous occupants. ARTICLE 4 PROJECT DEVELOPMENT 4.1 Developer Covenant to Develop Project. The Developer covenants to and for the exclusive benefit of the City that the Developer shall commence and complete the development of the Project on the Property, within the time period for such action set forth in the Performance Schedule. The Developer covenants and agrees for itself, its successors and 14 75A-19 assigns that the Property shall be improved and developed with the Project, in conformity with the terms and conditions of this Agreement and all applicable Laws and conditions of each Government. The covenants of this Section 4.1 shall run with the land of the Property, until the earlier of: (i) the date of issuance of a Certificate of Completion for the Project; or, (ii) one (1) year from the execution of this Agreement. Developer may request up to a one (1) year extension of such construction deadline from the City, which shall be reviewed administratively and may be granted or denied in the City Manager's sole discretion. 4.2 Developer to Obtain all Project Approvals. 4.2.1 Submission of Development Application. The Developer shall, within the time period(s) for such actions set forth in the Performance Schedule, prepare and submit a complete development application and any other required application, document, fee, charge or other item (including, without limitation, deposit, fund or surety) required for construction or installation of the Project, pursuant to all applicable Laws and Approvals, to each necessary Government for review and approval. The City's zoning, building and land use regulations (whether contained in ordinances, the City's municipal code, conditions of approval or elsewhere), shall be applicable to the construction and installation of the Project on the Property by the Developer, pursuant to this Agreement. The Developer acknowledges that all plans and specifications and any changes to any plans or specifications for the Project shall be subject to all applicable Laws and Approvals. The Developer shall obtain all entitlements, permits and other approvals for construction and installation of the Project on the Property from each Government, within the time periods for such actions set forth in the Performance Schedule, and prior to the commencement of any construction or installation of the applicable portion(s) of the Project. 4.2.2 Reservations. The approval of this Agreement by the City shall not be binding on the City Council, the Planning Commission, Design Review Committee or any other commission, committee, board or body of the City regarding any approvals of the Project required by such bodies. No action by the City with reference to this Agreement or any related documents shall be deemed to constitute issuance or waiver of any required City permit, approval or authorization regarding the Property, the Project or the Developer. The Developer obtains no right, permit or entitlement to construct or install the Project on the Property or any portion of the Property by virtue of this Agreement. 4.2.3 Project Changes. If any revisions of the Project are required by a Government, the Developer shall promptly make any such revisions that are: (i) generally consistent with the Scope of Development; and, (ii) would not result in any material additional improvements not identified in the Developer's submitted application. 4.2.4 Conditions of Approval. Notwithstanding any provision to the contrary in this Agreement, the Developer agrees to accept and comply fully with any and all reasonable conditions of approval applicable to any approvals, permits or other governmental actions regarding the construction or installation of the Project on the Property, that are both: (i) generally consistent with this Agreement; and, (ii) would not result in any material additional improvements not identified in the Developer's submitted application. 15 75A-20 4.2.5 Developer Payment of Costs and Fees. The Developer and the City agree that the City shall not provide any financial assistance to the Developer in connection with the construction or installation of the Project. This provision does not preclude support to the Developer including, but not limited to, discretionary funds. The Developer shall be solely responsible for paying for the costs of all design work, construction, labor, materials, fees, permits, applications, and other expenses associated with the Project. The Developer shall pay any and all fees pertaining to the review and approval of the Project by each Government and utility service providers, including the costs of preparation of all required construction, planning and other documents reasonably required by each Government or utility service provider pertinent to the construction, installation or operation of the Project on the Property, including, but not limited to, specifications, drawings, plans, maps, permit applications, land use applications, zoning applications, environmental review and disclosure documents and design review documents. The Developer shall obtain any and all necessary governmental approvals, prior to the commencement of applicable portions of construction and installation of the Project, and the Developer shall take reasonable precautions to ensure the safety and stability of surrounding properties during the construction and installation of the Project. 4.2.6. CEQA. The conceptual Project components may be revised and refined by the entitlement application process that Developer intends to pursue once this Agreement is approved by the City Council to obtain the necessary entitlements, which will take place in accordance with the Schedule of Performance and as otherwise provided for herein. Accordingly, the foregoing conceptual Project components will be subject to further consideration and approval by City in accordance with applicable laws and regulations, including City's review under the California Environmental Quality Act (Public Resources Code § 21000 et seq. and CEQA Guidelines § 15000 et seq.) ("CEQA"). As described more fully herein, Developer's development of the Site is conditioned on City completing its compliance with CEQA before City considers whether or not to approve the Project or any of its components. By entering into this Agreement, City is not committing itself to approve the Project or any component of the Project. However, as detailed more fully herein, City will undertake the steps necessary so that it may properly consider, in the future, whether or not to approve the Project. As part of this consideration and as may be required for purposes of CEQA compliance, it is understood and agreed by the parties that City may consider alternatives to the Project or any of its components; it may impose feasible measures upon the Project to mitigate identified significant impacts; it may condition approval of the Project on Developer's willingness to modify the Project; or it may deny the Project altogether. Accordingly, City is retaining its full discretion within the bounds of applicable laws in considering the Project. 4.3 Developer Changes to Project Plans and Specifications During Course of Construction. The Developer shall have the right, during the course of construction of the Project, to make "minor field changes," without seeking the approval of the City, if such changes do not affect the type of use to be conducted within all or any portion of a structure. "Minor field changes" shall be defined as those changes from the approved construction drawings, plans and specifications that have no substantial effect on the Project and are made in order to expedite the work of construction in response to field conditions. Nothing contained in this Section 4.3 shall be deemed to constitute a waiver of or change in any Approvals governing any such "minor field changes" or in any Approvals by any Government otherwise required for any such "minor field changes." 16 75A-21 4.4 Construction Start and Completion of Project 4.4.1 The Developer shall commence construction and installation of the Project in accordance with the Performance Schedule. Thereafter, the Developer shall diligently proceed to complete the construction and installation of the Project, in a good and workmanlike manner, in accordance with the Performance Schedule and all applicable Laws and all Approvals for the Project issued by each Government. 4.4.2 On or before the Project Completion Date, the Developer shall: (a) Record a Notice of Completion, in accordance with California Civil Code Section 3093, for the entirety of the Project; (b) Cause the Project to be inspected by each Government and correct any defects and deficiencies that may be disclosed by any such inspection; (c) Cause all occupancy certificates and other Approvals necessary for the occupancy and operation of the completed Project to be duly issued; and (d) After commencement of the work of improvement of the Project, the Developer shall not permit the work of improvement of the Project to cease or be suspended for a time period in excess of forty-five (45) calendar days, either consecutively or in the aggregate, other than as a result of an Unavoidable Delay. The City, in its sole and absolute discretion, may extend the Project Completion Date for up to an additional sixty (60) days, in the aggregate. 4.5 Compliance with Laws. All work performed in connection with the construction or installation of the Project shall comply with all applicable Laws and Approvals. 4.6 Performance Schedule. All planning construction, installation and other development obligations and responsibilities of the Developer related to the Project shall be initiated and completed within the times specified in the Performance Schedule, or within such reasonable extensions of such times granted by the City or as otherwise provided for in this Agreement. 4.7 Developer Attendance at City Meetings. The Developer agrees to have one or more of its employees or consultants who are knowledgeable regarding this Agreement and the development of the Project, such that such Person(s) can meaningfully respond to City staff questions regarding the progress of the Project, attend meetings with City staff or meetings of the City governing body, when requested to do so by City staff, with reasonable advance written Notice to the Developer. 4.8 PREVAILING WAGES. 4.8.1 THE DEVELOPER AGREES WITH THE CITY THAT THE DEVELOPER SHALL ASSUME ANY AND ALL RESPONSIBILITY AND BE SOLELY RESPONSIBLE FOR DETERMINING WHETHER OR NOT LABORERS EMPLOYED RELATIVE TO THE CONSTRUCTION OR INSTALLATION OF THE PROJECT MUST 17 75A-22 BE PAID THE PREVAILING PER DIEM WAGE RATE FOR THEIR LABOR CLASSIFICATION, AS DETERMINED BY THE STATE, PURSUANT TO LABOR CODE SECTIONS 1720, ET SEQ. 4.8.2 THE DEVELOPER, ON BEHALF OF ITSELF, ITS SUCCESSORS, AND ASSIGNS, WAIVES AND RELEASES THE CITY FROM ANY RIGHT OF ACTION THAT MAY BE AVAILABLE TO ANY OF THEM PURSUANT TO LABOR CODE SECTION 1781. THE DEVELOPER ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE SECTION 1542 RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN THIS SECTION 4.8, WHICH 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. 4.8.3 BY INITIALING BELOW, THE DEVELOPER KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 4: Initials of Authorized Developer Representative 4.8.4 ADDITIONALLY, THE DEVELOPER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY AGAINST ANY CLAIMS PURSUANT TO LABOR CODE SECTION 1781 ARISING FROM THIS AGREEMENT OR THE CONSTRUCTION OR INSTALLATION OF ALL OR ANY PORTION OF THE PROJECT. 4.9 Insurance. The Developer, to protect the City Parties against any and all claims and liability for death, injury, loss and damage resulting from the Developer's actions in connection with this Agreement, the Property and the Project, shall, at the Developer's sole cost and expense, throughout the term of the Lease of the Property, maintain the following insurance (or its then reasonably available equivalent), as applicable: (a) Liability Insurance; (b) Property Insurance; (c) Builder's Risk Insurance; and (d) Worker's Compensation Insurance. Additionally, the Developer, to protect the City Parties, shall cause its contractors and subcontractors, at their sole cost and expense, until issuance of a Certificate of Completion for the Project, to maintain Contractor's Insurance. 4.9.1 Nature of Insurance. All Liability Insurance, Property hnsurance, Automobile Liability Insurance and Contractor's hnsurance policies this Agreement requires shall be issued by carriers that: (a) are listed in the then current `Best's Key Rating Guide Property/Casualty United States & Canada" publication (or its equivalent, if such publication ceases to be published) with a minimum financial strength rating of "A" and a minimum financial size category of "VIP'; and (b) are admitted to do business in the State of California 18 75A-23 by the California Department of Insurance. The Developer may provide any insurance under a "blanket" or `umbrella" insurance policy, provided that (i) such policy or a certificate of such policy shall specify the amount(s) of the total insurance allocated to the Property and the Project, which amount(s) shall equal or exceed the amount(s) required by this Agreement and shall not be reduced for claims made for other properties; and (ii) such policy otherwise complies with this Agreement. 4.9.2 Policy Requirements and Endorsements. All insurance policies this Agreement requires shall contain (by endorsement or otherwise) the following provisions: (a) Insured. Liability Insurance, Automobile Liability Insurance and Contractor's Insurance policies shall name the City Parties as "additional insured." Property Insurance Policies shall name the City as a "loss payee." The coverage afforded to the City Parties shall be at least as broad as that afforded to the Developer and may not contain any terms, conditions, exclusions, or limitations applicable to the City Parties that do not apply to the Developer. (b) Primary Coverage. All policies shall be written as primary policies, not contributing to or in excess of any coverage that the City Parties may carry. (c) Contractual Liability. Liability Insurance policies shall contain contractual liability coverage, for the Developer's indemnity obligations under this Agreement. The Developer's obtaining or failure to obtain such contractual liability coverage shall not relieve the Developer from nor satisfy any indemnity obligation of the Developer under this Agreement. (d) Deliveries to the City. Prior to the commencement of any Due Diligence Investigations, and no later than twenty (20) days before any insurance required by this Agreement expires, is cancelled or its liability limits are reduced or exhausted, the Developer shall deliver to the City certificates of insurance evidencing the Developer's maintenance of all insurance this Agreement requires. Each insurance carrier shall give the City no less than thirty (30) calendar days' advance written Notice of any cancellation, non - renewal, material change in coverage or available limits of liability under any insurance policy required by this Agreement. Also, phrases such as "endeavor to" and "but failure to mail such Notice shall impose no obligation or liability of any kind upon the company" shall not be included in the cancellation wording of any certificates of insurance or any coverage for the City Parties. (e) Waiver of Certain Claims. The Developer shall attempt in good - faith to cause the insurance carrier for each Liability Insurance, Automobile Liability Insurance and Property Insurance policy to agree to a Waiver of Subrogation, if not already in the policy. To the extent that the Developer actually obtains insurance with a Waiver of Subrogation, the Parties release each other, and their respective authorized representatives, from any claims for damage to any Person or property that are caused by or result from risks insured against under such insurance policies. 19 75A-24 (f) No Representation. Neither Party makes any representation that the limits, scope, or forms of insurance coverage this Agreement requires are adequate or sufficient. (g) No Claims Made Coverage. None of the insurance coverage required under this Agreement may be written on a claims -made basis. (h) Fully Paid and Non -Assessable. All insurance obtained and maintained by the Developer in satisfaction of the requirements of this Agreement shall be fully paid for and non -assessable. (i) City Option to Obtain Coverage. During the continuance of an Event of Default arising from the Developer's failure to carry any insurance required by this Agreement, the City may, at its sole option, purchase any such required insurance coverage and the City shall be entitled to immediate payment from the Developer of any premiums and associated costs paid by the City for such insurance coverage. Any amount becoming due and payable to the City under this Section 4.9 that is not paid within fifteen (15) calendar days after written demand from the City for payment of such amount, with an explanation of the amounts demanded, will bear interest from the date of the demand at the rate of ten percent (10%) per annum or the maximum rate allowed by California law, whichever is less. Any election by the City to purchase or not to purchase insurance otherwise required by the terms of this Agreement to be carried by the Developer shall not relieve the Developer of its obligation to obtain and maintain any insurance coverage required by this Agreement. 0) Cross -Liability; Severability of Interests. All Liability Insurance and Contractor's Insurance shall be endorsed to provide cross -liability coverage for the Developer and the City Parties and to provide severability of interests. (k) Deductibles and Self -Insured Retentions. The Developer shall pay or cause to be paid any and all deductibles and self -insured retentions under all insurance policies issued in satisfaction of the terms of this Agreement regarding any claims relating to the City Parties. (I) No Separate Insurance. The Developer shall not carry separate or additional insurance concurrent in form or contributing in the event of loss with that required under this Agreement, unless endorsed in favor of the City, as required by this Agreement. (m) Insurance Independent of Indemnification. The insurance requirements of this Agreement are independent of the Developer's indemnification and other obligations under this Agreement and shall not be construed or interpreted in any way to satisfy, restrict, limit, or modify the Developer's indemnification or other obligations or to limit the Developer's liability under this Agreement, whether within, outside, or in excess of such coverage, and regardless of solvency or insolvency of the insurer that issues the coverage; nor shall the provision of such insurance preclude the City from taking such other actions as are available to it under any other provision of this Agreement or otherwise at law or in equity 20 75A-25 ARTICLE 5 SPECIAL DEVELOPMENT COVENANTS OF THE DEVELOPER 5.1 Maintenance Condition of the Property. The Developer for itself, its successors and assigns, covenants and agrees that: 5.1.1 Maintenance Standard. The entirety of the Property and the Project shall be maintained by the Developer at Developer's cost in good condition and repair and in a neat, clean and orderly condition, ordinary wear and tear and casualty excepted, including, without limitation, maintenance, repair, reconstruction and replacement of any and all asphalt, concrete, landscaping, utility systems, irrigation systems, drainage facilities or systems, grading, subsidence, retaining walls or similar support structures, foundations, signage, ornamentation, and all other improvements on or to the Property, now existing or made in the future by or with the consent of the Developer, as necessary to maintain the appearance and character of the Project and the Property. The Developer's obligation to maintain the Project and the Property described in the immediately preceding sentence shall include, without limitation: (i) maintaining the surfaces in a level, smooth and evenly covered condition with the type of surfacing material originally installed or such substitute as shall in all respects be equal in quality, use, and durability; (ii) removing all papers, mud, sand, debris, filth and refuse and thoroughly sweeping areas to the extent reasonably necessary to keep areas in a clean and orderly condition; (iii) removing or covering graffiti with the type of surface covering originally used on the affected area, (iv) placing, keeping in repair and replacing any necessary and appropriate directional signs, markers and lines; (v) operating, keeping in repair and replacing where necessary, such artificial lighting facilities as shall be reasonably required; (vi) providing security services as reasonably indicated; and (vii) maintaining, mowing, weeding, trimming and watering all landscaped areas and making such replacements of plants and other landscaping material as necessary to maintain the appearance and character of the landscaping, all at the sole cost and expense of the Developer. The Developer's obligation to maintain the Project and the Property described in the two immediately preceding sentences is, collectively, referred to in this Agreement as the "Maintenance Standard." The Developer may contract with a maintenance contractor to provide for performance of all or part of the duties and obligations of the Developer with respect to the maintenance of the Project and the Property; provided, however, that the Developer shall remain responsible and liable for the maintenance of the Project and the Property, at all times. 5.1.2 Maintenance Deficiency. If, at any time following the execution of the Lease, there is an occurrence of an adverse condition on any area of the Project or the Property in contravention of the Maintenance Standard (each such occurrence being a "Maintenance Deficiency"), then the City may Notify the Developer in writing of the Maintenance Deficiency. If the Developer fails to cure or commence and diligently pursue to cure the Maintenance Deficiency within thirty (30) calendar days following the Developer's receipt of Notice of the Maintenance Deficiency, the City may conduct a public hearing, following transmittal of written Notice of the hearing to the Developer, at least, ten (10) days prior to the scheduled date of such public hearing, to verify whether a Maintenance Deficiency exists and whether the Developer has failed to comply with the provisions of this Section 5.1. If, upon the conclusion of the public hearing, the City finds that a Maintenance Deficiency exists and remains uncured, 21 75A-26 the City shall have the right to enter the Project and the Property and perform all acts necessary to cure the Maintenance Deficiency, or to take any other action at law or in equity that may then be available to the City to accomplish the abatement of the Maintenance Deficiency. Any sum expended by the City for the abatement of a Maintenance Deficiency pursuant to this Section 5.1 shall be reimbursed to the City by the Developer, within thirty (30) calendar days after written demand for payment from the City. Any amount expended by the City for the abatement of a Maintenance Deficiency pursuant to this Section 5.1 that is not reimbursed to the City by the Developer within thirty (30) calendar days after written demand to the Developer for such reimbursement, shall accrue interest at the lesser of: (i) the rate of ten percent (10%) per annum; or, (ii) the Usury Limit, until paid in full. 5.1.3 Graffiti. Graffiti, as defined in Government Code Section 38772, that has been applied to any exterior surface of a structure or improvement on the Property, that is visible from any public right-of-way adjacent or contiguous to the Property, shall be removed by the Developer by either painting over the evidence of such vandalism with a paint that has been color -matched to the surface on which the paint is applied or removed with solvents, detergents or water, as appropriate. If any such graffiti is not removed within twenty-four (24) hours following the time of the discovery of the graffiti, the City shall have the right to enter the Property and remove the graffiti, without Notice to the Developer. Any sum expended by the City for the removal of graffiti on the Property pursuant to this Section 5.1 shall be reimbursed to the City by the Developer within thirty (30) calendar days after written demand for payment from the City. Any amount expended by the City for the removal of graffiti pursuant to this Section 5 that is not reimbursed to the City by the Developer within thirty (30) calendar days after written demand to the Developer for such reimbursement, shall accrue interest at the lesser of: (i) the rate of ten percent (10%) per annum; or, (ii) the Usury Limit, until paid in full. 5.2 Obligation to Refrain from Discrimination. The Developer covenants and agrees for itself, its successors, its assigns and every successor -in -interest to all or any portion of the Property, that there shall be no discrimination against or segregation of any Person, or group of Persons, on account of gender, sexual orientation, marital status, race, color, religion, creed, national origin or ancestry in the lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Developer, itself or any Person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of the Developers, lessees, sub -Developers, sub -lessees or vendees of the Property. 5.3 Form of Non-discrimination and Non -segregation Clauses. The Developer covenants and agrees for itself, its successors, its assigns, and every successor -in -interest to all or any portion of the Property, that the Developer, such successors and such assigns shall refrain from restricting the lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of all or any portion of the Property on the basis of gender, sexual orientation, marital status, race, color, religion, creed, ancestry or national origin of any Person. All leases or contracts pertaining to the Property or any part thereof shall contain or be subject to substantially the following non-discrimination or non -segregation covenants: 22 75A-27 5.3.1 In leases: "The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any Person or group of persons, on account of race, color, creed, religion, gender, sexual orientation, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee 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 the Developers lessees, sub -lessee, sub -Developers, or vendees in the premises herein leased." 5.3.2 In contracts: "There shall be no discrimination against or segregation of any Person or group of persons on account of race, color, creed, religion, gender, sexual orientation, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee 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 the Developers, lessees, sub -lessees, sub -Developers, or vendees of the premises herein transferred." The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument. 5.4 Survival and Enforcement of Special Development Covenants. These special development covenants may be enforced by the City regardless of whether the City currently owns or continues to own an interest in any property benefited by any such covenants. The Developer irrevocably stipulates and agrees that breach of any of the special development covenants set forth in this ARTICLE 55 will result in great and irreparable damage to the City, and will result in damages to the City that are either impracticable or extremely difficult to quantify. Accordingly, upon the breach of any special development covenant set forth in this Article 5, the City may institute an action for injunctive relief and/or for damages regarding such breach. ARTICLE 6 DEFAULTS, REMEDIES AND TERMINATION 6.1 Defaults. 6.1.1 Events of Default. In addition to other acts or omissions of a Party that may legally or equitably constitute a Default or breach of this Agreement, the occurrence of any of the following specific events shall constitute an "Event of Default' under this Agreement: (a) Monetary Default. If a Monetary Default occurs and continues for seven (7) days after Notice from the City, specifying in reasonable detail the amount of money not paid and the nature and calculation of each such payment. 23 75A-28 (b) Bankruptcy or Insolvency. If the Developer ceases to do business as a going concern, ceases to pay its debts as they become due or admits in writing that it is unable to pay its debts as they become due, or becomes subject to any Bankruptcy Proceeding (except an involuntary Bankruptcy Proceeding dismissed within sixty (60) days after commencement), or a custodian or trustee is appointed to take possession of, or an attachment, execution or other judicial seizure is made with respect to, substantially all of the Developer's assets or the Developer's interest in this Agreement (unless such appointment, attachment, execution, or other seizure was involuntary and is contested with diligence and continuity and vacated and discharged within sixty (60) days). (c) Breach of Representation or Warranty. Any representation, warranty or disclosure made to the City by the Developer regarding this Agreement, the Property or the Project is materially false or misleading, whether or not such representation or disclosure appears in this Agreement. (d) Deposit of Funds, Bonds or Other Security. If the Developer fails to make any deposit of funds or provide any bond or other security required under this Agreement within seven (7) days after Notice of such Default to the Developer. (e) Insurance. If the Developer fails to obtain, maintain or replace any insurance coverage required under this Agreement within seven (7) days after Notice of such Default to the Developer. (t) Material Deviation in Project. Any material deviation in the work of construction or installation of the Project from the approved Project description, without the prior written approval of the City that is not corrected within fifteen (15) days following written Notice of such Default. (g) Project Progress. (i) The construction or installation of the Project does not commence by the time provided for such commencement in the Performance Schedule. (ii) The construction or installation of the Project is delayed or suspended for a period in excess of that permitted under Section 4.4.2(d). (iii) The Project is not completed by the Project Completion Date. (h) Non -Monetary Default. If any Non -Monetary Default occurs and the Developer does not cure such Non -Monetary Default within thirty (30) days after Notice from the City describing the Default in reasonable detail, or, in the case of a Non -Monetary Default that cannot with reasonable due diligence be cured within thirty (30) days from such Notice, if the Developer shall not: (a) within thirty (30) days after the City's Notice, advise the City of the Developer's intention to take all reasonable steps to cure such Non -Monetary Default; (b) duly commence such cure within such period, and then diligently prosecute such cure to completion; and, (c) complete such cure within a reasonable time under the circumstances. 24 75A-29 (i) Transfer. The occurrence of a Transfer other than a Permitted Transfer, whether voluntarily or involuntarily or by operation of Law, in violation of the terms and conditions of this Agreement. 6.2 DEVELOPER'S WAIVER OF RIGHT TO SPECIFIC PERFORMANCE AND LIMITATION ON RECOVERY OF DAMAGES PRIOR TO EXECUTION OF THE LEASE. 6.2.1 THE DEVELOPER WAIVES ANY RIGHT TO MAINTAIN AN ACTION AGAINST THE CITY FOR SPECIFIC PERFORMANCE OF ANY TERM OR PROVISION OF THIS AGREEMENT, PRIOR TO THE EXECUTION OF THE LEASE. DURING THE CONTINUANCE OF AN EVENT OF DEFAULT BY THE CITY, PRIOR TO THE EXECUTION OF THE LEASE, THE DEVELOPER SHALL BE LIMITED TO RECOVERING ANY AMOUNTS ACTUALLY EXPENDED BY THE DEVELOPER IN REASONABLE RELIANCE ON THIS AGREEMENT, PRIOR TO THE DATE OF THE OCCURRENCE OF THE DEFAULT BY THE CITY, NOT TO EXCEED AN AGGREGATE AMOUNT OF TWENTY THOUSAND DOLLARS ($ 20,000___). THE DEVELOPER WAIVES ANY RIGHT TO RECOVER ANY OTHER SUMS FROM THE CITY ARISING FROM A DEFAULT BY THE CITY, PRIOR TO THE EXECUTION OF THE LEASE. THE DEVELOPER ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE SECTION 1542 RELATIVE TO THE WAIVERS AND RELEASES CONTAINED IN THIS SECTION 6.2, WHICH CIVIL CODE SECTION 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. 6.2.2 BY INITIALING BELOW, THE DEVELOPER KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 6.2. Initials of Authorized Developer Representative 6.3 Legal Actions. Following the execution of the Lease, 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 available to that Party under this Agreement, at law or in equity regarding any Default. Any such legal action must be instituted in the Superior Court of the State of California in and for Orange County, in any other appropriate court within Orange County, or in the United States District Court with jurisdiction in Orange County. 25 75A-30 6.4 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties set forth in this Agreement 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. 6.5 Indemnification. 6.5.1 Obligations. The City shall Indemnify the Developer Parties and the Developer shall Indemnify the City Parties against any wrongful intentional act or negligence of the Indemnitor. The Developer shall also Indemnify the City Parties against any and all of the following: (a) any Application made at the Developer's request; (b) any Due Diligence Investigations by the Developer; (c) use, occupancy, management or operation of the Project; (d) any agreements that the Developer (or anyone claiming through the Developer) makes regarding the Project; (e) the condition of the Project or any space under, adjoining or appurtenant to the Property; and, (f) any accident, injury or damage whatsoever caused to any Person in or on the Property or the Project. Notwithstanding anything to the contrary in this Agreement, no Indemnitor shall be required to Indemnify any Indemnitee to the extent of the Indemnitee's wrongful intentional acts or negligence. 6.5.2 Limitation on Liability of the City. Following the execution of the Lease, the Developer is and shall be responsible for operation of the Property and the Project, and the City shall not be liable for any injury or damage to any property (of the Developer or any other Person) or to any Person occurring on or about the Property or the Project, except to the extent caused by the City's wrongful intentional act or negligence. 6.5.3 Strict Liability. The indemnification obligations of an Indemnitor shall apply regardless of whether liability without fault or strict liability is imposed or sought to be imposed on one or more Indemnitees. 6.5.4 Independent of Insurance Obligations. The Developer's indemnification obligations under this Agreement shall not be construed or interpreted as in any way restricting, limiting, or modifying the Developer's insurance or other obligations under this Agreement and is independent of the Developer's insurance and other obligations under this Agreement. The Developer's compliance with its insurance obligations and other obligations under this Agreement shall not in any way restrict, limit, or modify the Developer's indemnification obligations under this Agreement and are independent of the Developer's indemnification and other obligations under this Agreement. 6.5.5 Survival of Indemnification and Defense Obligations. The indemnity and defense obligations under this Agreement shall survive the expiration or earlier termination of this Agreement, until all claims against any of the Indemnitees involving any of the indemnified matters are fully, finally, absolutely and completely barred by applicable statutes of limitations. 6.5.6 Independent Duty to Defend. The duty to defend under this Agreement is separate and independent of the duty to Indemnify. The duty to defend includes claims for 26 75A-31 which an Indemnitee may be liable without fault or strictly liable. The duty to defend applies immediately upon notice of a Claim, regardless of whether the issues of negligence, liability, fault, default or other obligation on the part of the Indemnitor or the Indemnitee have been determined. The duty to defend applies immediately, regardless of whether the hndemnitee has paid any amounts or incurred any detriment arising out of or relating (directly or indirectly) to any claims. It is the express intention of the Parties that an Indemnitee be entitled to obtain summary adjudication or summary judgment regarding an Indemnitor's duty to defend the Indemnitee, at any stage of any claim or suit, within the scope of the Indemnitor's indemnity obligations under this Agreement. 6.6 Indemnification Procedures. Wherever this Agreement requires any Indemnitor to Indemnify any Indemnitee: 6.6.1 Prompt Notice. The Indemnitee shall promptly Notify the Indemnitor of any claim. To the extent, and only to the extent, that the Indemnitee fails to give prompt Notice of a Claim and such failure materially prejudices the Indemnitor in providing indemnity for such claim, the Indemnitor shall be relieved of its indemnity obligations for such claim. 6.6.2 Selection of Counsel. The Indemnitor shall select counsel reasonably acceptable to the Indemnitee. Counsel to Indemnitor's insurance carrier that is providing coverage for a claim shall be deemed reasonably satisfactory. Even though the Indemnitor shall defend the action, Indemnitee may, at its option and its own expense, engage separate counsel to advise it regarding the claim and its defense. The Indemnitee's separate counsel may attend all proceedings and meetings. The Indemnitor's counsel shall actively consult with the Indemnitee's separate counsel. The Indemnitor and its counsel shall, however, fully control the defense, except to the extent that the Indemnitee waives its rights to indemnity and defense for such claim. 6.6.3 Cooperation. The Indemnitee shall reasonably cooperate with the Indemnitor's defense of the Indemnitee, provided the Indemnitor reimburses the Indemnitee's actual out of pocket expenses (including Legal Costs) of such cooperation. 6.6.4 Settlement. The Indemnitor may, with the Indemnitee's consent, not to be unreasonably withheld, settle a claim. The Indemnitee's consent shall not be required for any settlement by which all of the following occur: (a) the Indemnitor procures (by payment, settlement, or otherwise) a release of the hndemnitee from the subject claim(s) by which the Indemnitee need not make any payment to the claimant; (b) neither the Indemnitee nor the Indemnitor on behalf of the Indemnitee admits liability; (c) the continued effectiveness of this Agreement is not jeopardized in any way; and (d) the hidemnitee's interest in the Project is not jeopardized in any way. 6.6.5 Insurance Proceeds. The Indemnitor's obligations shall be reduced by net insurance proceeds the Indemnitee actually receives for the matter giving rise to indemnification obligation. 27 75A-32 ARTICLE 7 GENERAL PROVISIONS 7.1 Incorporation of Recitals. The Recitals set forth preceding this Agreement are true and correct and are incorporated into this Agreement in their entirety by this reference. 7.2 Restrictions on Change in Management or Control of the Developer, Assignment and Transfer. 7.2.1 Restrictions. The Developer acknowledges that the qualifications and identity of the Developer are of particular importance and concern to the City. The Developer further recognizes and acknowledges that the City has relied and is relying on the specific qualifications and identity of the Developer in entering into this Agreement with the Developer and, as a consequence, Transfers are permitted only as expressly provided in this Agreement. The Developer represents to the City that it has not made and agrees that it will not create or suffer to be made or created, any Transfer, other than a Permitted Encumbrance either voluntarily, involuntarily or by operation of law, without the prior written approval of the City, which may be given, withheld or conditioned in the City's sole and absolute discretion. Any Transfer made in contravention of this Section 7.2 shall be voidable at the election of the City. The Developer agrees that the restrictions on Transfers set forth in this Section 7.2 are reasonable. 7.3 Delivery of Transfer Documents. All instruments and other legal documents proposed to effect any proposed Transfer shall be submitted to the City for review, at least thirty-five (35) calendar days prior to the proposed date of the Transfer, and the written approval, disapproval or conditions of the City shall be provided to the Developer, within thirty (30) calendar days following the City's receipt of the Developer's request. Legal Challenges. The Developer acknowledges that the City is a "public entity" and/or a "public agency" as defined under applicable California law. Therefore, the City must satisfy the requirements of certain California statutes relating to the actions of public entities, including, without limitation, CEQA. Also, as a public entity, the City's action in approving this Agreement may be subject to proceedings to challenge or invalidate this Agreement or mandamus. The Developer assumes the risk of delays and damages that may result to the Developer from any third -party legal actions related to the City's approval of this Agreement or pursuit of the activities contemplated by this Agreement, even in the event that an error, omission or abuse of discretion by the City is determined to have occurred. If a third -party files a legal action regarding the City's approval of this Agreement or the pursuit of the activities contemplated by this Agreement, the City may terminate this Agreement on thirty (30) days advance written Notice to the Developer of the City's intent to terminate this Agreement, referencing this Section 7.3, without any further obligation to perform the terms of this Agreement and without any liability to the Developer or any other Person resulting from such termination, unless the Developer unconditionally agrees in writing to indemnify and defend the City, with legal counsel acceptable to the City, against such third -party legal action, within thirty (30) calendar days following the date of the City's Notice of intent to terminate this Agreement, including without limitation paying all Legal Costs, monetary awards, sanctions, attorney fee awards, expert witness and consulting fees, and the expenses of any and all financial or performance obligations resulting from the disposition 28 75A-33 of the legal action. Any such written defense and indemnity agreement between the City and the Developer must be in a separate writing and reasonably acceptable to the City in both form and substance. Nothing contained in this Section 7.3 shall be deemed or construed to be an express or implied admission that the City may be liable to the Developer or any other Person for damages or other relief alleged regarding any alleged or established failure of the City to comply with any Law. If the City and the Developer have not entered into a written defense and indemnity agreement, pursuant to this Section 7.3 within thirty (30) calendar days following the date of the City's notice of intent to terminate this Agreement, then this Agreement shall terminate, without further Notice or action by either Party, on the fortieth (40s') day following the date of the City's notice of intent to terminate this Agreement. 7.4 City Manager Implementation. The City shall implement this Agreement through its City Manager. The City Manager is hereby authorized by the City to issue approvals, interpretations, waivers and enter into certain amendments to this Agreement on behalf of the City, to the extent that any such action(s) does/do not materially or substantially change the Project or cause the City to incur any obligation exceeding Fifty Thousand Dollars ($50,000). All other actions shall require the consideration and approval of the City governing body. Nothing in this Section 7.4 shall restrict the submission to the City governing body of any matter within the City Manager's authority under this Section 7.4, in the City Manager's sole and absolute discretion, to obtain the City governing body's express and specific authorization on such matter. The specific intent of this Section 7.4 is to authorize certain actions on behalf of the City by the City Manager, but not to require that such actions be taken by the City Manager, without further consideration by the City governing body. 7.5 Notices, Demands and Communications Between the Parties. 7.5.1 Notices. Any and all Notices submitted by either Party to the other Party pursuant to or as required by this Agreement shall be proper, if in writing and transmitted to the principal office of the City or the Developer, as applicable, set forth in Section 7.5.2, by one or more of the following methods: (i) messenger for immediate Personal delivery, (ii) a nationally recognized overnight (one-night) delivery service (i.e., Federal Express, United Parcel Service, etc.) or (iii) registered or certified United States Mail, postage prepaid, return receipt requested. Such Notices may be sent in the same manner to such other addresses as either Party may designate from time to time, by Notice. Any Notice shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that it is delivered by personal delivery, on the date of delivery by a nationally recognized overnight courier service (or when delivery has been attempted twice, as evidenced by the written report of the courier service) or four (4) calendar days after it is deposited with the United States Postal Service for delivery, as provided in this Section 7.5.1. Rejection, other refusal to accept or the inability to deliver a Notice because of a changed address of which no Notice was given or other action by a Person to whom Notice is sent, shall be deemed receipt of the Notice. 7.5.2 Addresses. The following are the authorized addresses for the submission of Notices to the Parties, as of the Effective Date: 29 75A-34 To the Developer: THRIVE Santa Ana, Inc. P.O. Box 1935 Santa Ana, CA 92702 UCI School of Law Community Economic Development Clinic P.O. Box 5479 Irvine, CA 92616-5479 Public Law Center c/o Housing and Homelessness Prevention Unit 601 Civic Center Drive West Santa Ana, CA 92701 To the City: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, CA 92702 With courtesy copy to City of Santa Ana City Attorney's Office 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, CA 92702 7.6 Warranty Against Payment of Consideration for Agreement. The Developer represents and warrants that: (i) the Developer has not employed or retained any Person to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees of the Developer; and, (ii) no gratuities, in the form of entertainment, gifts or otherwise have been or will be given by the Developer or any of its agents, employees or representatives to any elected or appointed official or employee of the City in an attempt to secure this Agreement or favorable terms or conditions for this Agreement. Breach of the representations or warranties of this Section 7.6 shall automatically terminate this Agreement, without further notice to or action by 30 75A-35 either Party and the Developer shall immediately refund any payments made to the Developer by the City pursuant to this Agreement, prior to the date of any such termination. 7.7 Relationship of Parties. The Parties each understand and agree that the City and the Developer are independent contracting entities and do not intend by this Agreement to create any partnership, joint venture, or similar business arrangement, relationship or association between them. 7.8 Survival of Agreement. All of the provisions of this Agreement shall be applicable to any dispute between the Parties arising from this Agreement, whether prior to or following expiration or termination of this Agreement, until any such dispute is finally and completely resolved between the Parties, either by written settlement, entry of a non -appealable judgment or expiration of all applicable statutory limitations periods and all terms and conditions of this Agreement relating to dispute resolution and limitations on damages or remedies shall survive any expiration or termination of this Agreement. 7.9 Conflict of Interest. No member, officer, official or employee of the City having any conflict of interest, direct or indirect, related to this Agreement, the Property or the development or operation of the Project shall participate in any decision relating to this Agreement. The Parties represent and warrant that they do not have knowledge of any such conflict of interest. 7.10 Non -liability of Officials, Employees and Agents. No City Party shall be personally liable to the Developer, or any successor in interest of the Developer, in the event of any Default or breach by the City under this Agreement or for any amount that may become due to the Developer or to its successor, or on any obligations under the terms or conditions of this Agreement, except as may arise from the negligence or willful intentional acts of such City Party. 7.11 Calculation of Time Periods. Unless otherwise specified, all references to time periods in this Agreement measured in days shall be to consecutive calendar days, all references to time periods in this Agreement measured in months shall be to consecutive calendar months and all references to time periods in this Agreement measured in years shall be to consecutive calendar years. Any reference to business days in this Agreement shall mean and refer to consecutive business days of the City. 7.12 Principles of Interpretation. No inference in favor of or against any Party shall be drawn from the fact that such Party has drafted any part of this Agreement. The Parties have both participated substantially in the negotiation, drafting, and revision of this Agreement, with advice from legal and other counsel and advisers of their own selection. A word, term or phrase defined in the singular in this Agreement may be used in the plural, and vice versa, all in accordance with ordinary principles of English grammar, which shall govern all language in this Agreement. The words `include" and "including" in this Agreement shall be construed to be followed by the words: "without limitation." Each collective noun in this Agreement shall be interpreted as if followed by the words "(or any part of it)," except where the context clearly requires otherwise. Every reference to any document, including this Agreement, refers to such document, as modified from time to time (excepting any modification that violates this 31 75A-36 Agreement), and includes all exhibits, schedules, addenda and riders to such document. The word "or" in this Agreement includes the word "and." 7.13 Governing Law. The Laws of the State of California shall govern the interpretation and enforcement of this Agreement, without application of conflicts of laws principles. The Parties acknowledge and agree that this Agreement is entered into, is to be fully performed in and relates to real property located in the City. 7.14 City Attorney Fees and Costs. For the purposes of this Agreement, all references to reasonable attorneys' fees and costs in reference to the City are intended to include the salaries, benefits and costs of the City Attorney, as City General Counsel, and the lawyers employed in the City Attorney's Office who provide legal services regarding the particular matter, pro -rated to an hourly rate, in addition to any fees and costs of outside counsel to the City. 7.15 Unavoidable Delay; Extension of Time of Performance. 7.15.1 Notice. Subject to any specific provisions of this Agreement stating that they are not subject to Unavoidable Delay or otherwise limiting or restricting the effects of an Unavoidable Delay, performance by either Party under this Agreement shall not be deemed, or considered to be in Default, where any such Default is due to the occurrence of an Unavoidable Delay. Any Party claiming an Unavoidable Delay shall Notify the other Party: (a) within ten (10) days after such Party knows of any such Unavoidable Delay; and (b) within five (5) days after such Unavoidable Delay ceases to exist. To be effective, any Notice of an Unavoidable Delay must describe the Unavoidable Delay in reasonable detail. The extension of time for an Unavoidable Delay shall commence on the date of receipt of written Notice of the occurrence of the Unavoidable Delay by the Party not claiming an extension of time to perform due to such Unavoidable Delay and shall continue until the end of the condition causing the Unavoidable Delay. The Party claiming an extension of time to perform due to an Unavoidable Delay shall exercise its commercially reasonable best efforts to cure the condition causing the Unavoidable Delay, within a reasonable time. 7.15.2 ASSUMPTION OF ECONOMIC RISKS. EACH PARTY EXPRESSLY AGREES THAT ADVERSE CHANGES IN ECONOMIC CONDITIONS, OF EITHER PARTY SPECIFICALLY OR THE ECONOMY GENERALLY, OR CHANGES IN MARKET CONDITIONS OR DEMAND OR CHANGES IN THE ECONOMIC ASSUMPTIONS OF EITHER PARTY THAT MAY HAVE PROVIDED A BASIS FOR ENTERING INTO THIS AGREEMENT SHALL NOT OPERATE TO EXCUSE OR DELAY THE PERFORMANCE OF EACH AND EVERY ONE OF EACH PARTY'S OBLIGATIONS AND COVENANTS ARISING UNDER THIS AGREEMENT. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, THE PARTIES EXPRESSLY ASSUME THE RISK OF UNFORESEEABLE CHANGES IN ECONOMIC CIRCUMSTANCES AND/OR MARKET DEMAND/CONDITIONS AND WAIVE, TO THE GREATEST LEGAL EXTENT, ANY DEFENSE, CLAIM, OR CAUSE OF ACTION BASED IN WHOLE OR IN PART ON ECONOMIC NECESSITY, IMPRACTICABILITY, CHANGED ECONOMIC CIRCUMSTANCES, FRUSTRATION OF PURPOSE, OR SIMILAR THEORIES. THE PARTIES AGREE THAT ADVERSE CHANGES IN 32 75A-37 ECONOMIC CONDITIONS, EITHER OF THE PARTY SPECIFICALLY OR THE ECONOMY GENERALLY, OR CHANGES IN MARKET CONDITIONS OR DEMANDS, SHALL NOT OPERATE TO EXCUSE OR DELAY THE STRICT OBSERVANCE OF EACH AND EVERY ONE OF THE OBLIGATIONS, COVENANTS, CONDITIONS AND REQUIREMENTS OF THIS AGREEMENT. THE PARTIES EXPRESSLY ASSUME THE RISK OF SUCH ADVERSE ECONOMIC OR MARKET CHANGES, WHETHER OR NOT FORESEEABLE AS OF THE EFFECTIVE DATE. Initials of Authorized Initials of Authorized Representative(s) of City Representative(s) of Developer 7.16 Real Estate Commissions. The City shall not be responsible for any real estate brokerage or sales commissions, finder fees or similar charges that may arise from or be related to this Agreement. The Developer shall be solely responsible for any real estate brokerage or sales commissions, finder fees or similar charges that may arise from or be related to this Agreement that are claimed by any Person engaged by the Developer relating to the Property, the Project or this Agreement. Further, the Developer shall Indemnify the City from any such claims for real estate brokerage or sales commissions, finder fees or similar charges. 7.17 Binding on Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective legal representatives, successors and assigns. 7.18 No Other Representations or Warranties. Except as expressly set forth in this Agreement, no Party makes any representation or warranty material to this Agreement to any other Party. 7.19 Tax Consequences. Developer acknowledges this Agreement and agrees that it shall bear any and all responsibility, liability, costs, and expenses connected in any way with any tax consequences experienced by the Developer related to this Agreement or the execution of the Lease. 7.20 No Third -Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any Person other than the Parties and their respective permitted successors and assigns, nor is anything in this Agreement intended to relieve or discharge any obligation of any third -Person to any Party or give any third -Person any right of subrogation or action over or against any Party. 7.21 Execution in Counterparts. This Agreement may be executed in two or more counterpart originals, each of which shall be deemed to be an original, but all of which together shall constitute one and the same document. 7.22 Entire Agreement. 33 75A-38 7.22.1 Integrated Agreement. This Agreement includes pages and exhibits, which constitute the entire understanding and Agreement of the Parties regarding the Project, lease of the Property and the other subjects addressed in this Agreement. This Agreement integrates all of the terms and conditions mentioned in this Agreement or incidental to this Agreement, and supersedes all negotiations or previous agreements between the Parties with respect to the Project, lease of the Property and the other subjects addressed in this Agreement. 7.22.2 No Merger. None of the terms, covenants, restrictions, agreements or conditions set forth in this Agreement shall be deemed to be merged with any lease or sublease of any part of the Property, and this Agreement shall continue in full force and effect before and after any such instruments. 7.22.3 Waivers Must be in Writing. All waivers of the provisions of this Agreement and all amendments to this Agreement must be in writing and signed by the authorized representative(s) of both the City and the Developer. 7.23 Exhibits. The exhibits attached to this Agreement are described as follows: Exhibit A: Property Legal Description Exhibit B: Project Description Exhibit C: Performance Schedule Exhibit D: Developer Official Action Exhibit E: City Lease 7.24 Time Declared to be of the Essence. As to the performance of any obligation under this Agreement of which time is a component, the performance of such obligation within the time specified is of the essence. 7.25 No Waiver. Failure to insist on any one occasion upon strict compliance with any term, covenant, condition, restriction or agreement contained in this Agreement shall not be deemed a waiver of such term, covenant, or condition, restriction or agreement, nor shall any waiver or relinquishment of any rights or powers under this Agreement at any one time or more times, be deemed a waiver or relinquishment of such right or power at any other time or times. [Signatures on following page] 34 75A-39 IN WITNESS WHEREOF, the Parties have executed this Disposition and Development Agreement on the dates indicated next to each of the signatures of their authorized representatives, as appear below: ATTEST: DAISY GOMEZ Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney Ryan U. Hodge Assistant City Attorney RECOMMENDED FOR APPROVAL: STEVEN A. MENDOZA Executive Director Community Development Agency CITY OF SANTA ANA KRISTINE RIDGE City Manager DEVELOPER By:-- CESAR COVARRUBIAS Treasurer, THRIVE Santa Ana, Inc. Dated: 3 I 151ao By: -- SANDRA ORTEGA Secretary, THRIVE Santa Ana, Inc. Dated: ziigigogn 35 75A-40 EXHIBIT "A" TO DISPOSITION AND DEVELOPMENT AGREEMENT PROPERTY LEGAL DESCRIPTION 1901 West Walnut Street ("Property") is situated in the State of California, County of Orange, and the City of Santa Ana. The Property has a lot size of 16,558 square feet (.38 acre) as shown on a Map recorded as parcel 8 in Book 7 on page 332 of Assessor Parcel Maps of Orange County, California. The Property is bounded on its easterly edge by South Daisy Avenue and its southern edge by West Walnut Street. The following is the Property Legal Description: P BK 54 PG 50 PAR 3 75A-41 EXHIBIT `B" TO DISPOSITION AND DEVELOPMENT AGREEMENT Developer proposes a micro -farm use for the Property. Operation of a community micro - farm and related activities, including, but not limited to, production and distribution of fresh vegetables, flowers, other ornamentals, and fruit, also hosting weekly open-air markets and community activities that promote health. The site will include raised garden beds, a work area, produce puck -up counter, and lunch tables. An on -site parking lot will be used on weekends as an open-air market area. The micro -farm will host community workshops and events in line with the mission of THRIVE Santa Ana. 75A-42 EXHIBIT "C" TO DISPOSITION AND DEVELOPMENT AGREEMENT PERFORMANCE SCHEDULE A. Days shall be calendar days, unless otherwise specified. B. The City Manager is authorized by the City to make minor changes to the schedule prior to the Project Completion Date resulting in an aggregate extension of the Project Completion Date of ninety (90) calendar days or less. C. All specific dates set forth in parentheses in this schedule are estimates only and not binding on the Parties. D. In the event of any conflict between this schedule and the Agreement, the terms and provisions of the Agreement shall control. E. All defined terms indicated by initial capitalization used in this schedule shall have the meanings ascribed to the same terms in the Agreement. Action Date Action to be Completed By 1. Effective Date of Agreement 3. Submission of updated Financial Pro Forma from Developer to City 47 Delivery of Due Diligence Completion Notice from Developer to City 5. Submittal of building permit application(s) from Developer to City 6. Issuance of building permit(s) by City 7. Execution of Lease 8. Groundbreaking ceremony 9. Document Construction Financing, Permanent Financing, and Evidence of Equity 10 Commencement of construction and installation of Project 11. Submission of administrative request for extension of construction deadline, if necessary, from Developer to City Up to (1) additional year 12. Completion of construction and installation of Project 13. Submission of Certificate of Completion from Developer to City One (1) year from execution of DDA 14. Issuance of Certificate of Occupancy by City 75A-43 15. Grand opening ceremony 75A-44 EXHIBIT "D" TO DISPOSITION AND DEVELOPMENT AGREEMENT DEVELOPER OFFICIAL ACTION [To be attached behind this cover page] 75A-45 CERTIFICATION OF CORPORATION AUTHORITY THRIVE Santa Ana, Inc., a 501(c)(3) tax exempt California public benefit corporation (the "Corporation"), does certify that any one (1) of the following named persons: are, authorized and empowered for and on behalf of and in the name of the Corporation to execute and deliver that certain DISPOSITION AND DEVELOPMENT AGREEMENT , dated (the "Agreement"), to lease certain property, generally, located at 1901 West Walnut Street, Santa Ana, California, to perform the other obligations of the Corporation set forth in the Agreement and all other documents to be executed in connection with the transactions contemplated in the Agreement, and to take all actions that may be considered necessary to conclude the transactions contemplated in the Agreement. The authority conferred shall be considered retroactively, and any and all acts authorized in this document that were performed before the execution of this certificate are approved and ratified. The authority conferred shall continue in full force and effect until the City shall have received notice in writing from the Corporation of the revocation of this certificate. We further certify that the activities covered by the foregoing certifications constitute duly authorized activities of the Corporation; that these certifications are now in full force and effect; and that there is no provision in any document under which the Corporation is organized and/or that governs the Corporation's continued existence limiting the power of the undersigned to make the certifications set forth in this certificate, and that the same are in conformity with the provisions of all such documents. Corporation: Name: Title: Name: Title: 75A-46 EXIMIT "E" TO DISPOSITION AND DEVELOPMENT AGREEMENT CITY LEASE [Attached behind this cover page] 75A-47 CITY OF SANTA ANA GROUND LEASE Community Micro -Farm Project at 1901 West Walnut Street, Santa Ana THIS GROUND LEASE ("Lease") is dated as of , for reference purposes only, and is entered into by and between the CITY OF SANTA ANA, a California charter city in the County of Orange of the State of California ("Lessor"), and THRIVE Santa Ana, Inc., a 501(c)(3) tax exempt California public benefit corporation ("Tenant') (collectively, the "Parties," and each a "Party"). The Parties enter into this Lease with reference to the following recited facts (collectively, the "Recitals," and each a "Recital"): RECITALS A. Lessor owns that certain real property generally located at 1901 West Walnut Street, Santa Ana, California 92703 (APN 007-332-08), and as more particularly described in the Legal Description attached to this Lease as Exhibit "A" and incorporated herein by reference ("Premises"). B. Tenant proposes to develop a community micro -farm on the Premises. The term "micro -farm" refers to a small space primarily used to cultivate crops in an urban or suburban setting. Additionally, micro -farms are used to teach gardening and farming skills to community members. Tenant will use a comprehensive assessment of community needs to determine the specific use of the Premises, as particularly described in the Project Description attached to this Lease as Exhibit "B" and incorporated herein by reference ("Project'). C. On May 1, 2018, the Parties entered into an Exclusive Negotiation Agreement (No. A-2018-117) to negotiate the potential future development of the Premises, but that original Exclusive Negotiation Agreement expired on its own terms on April 26, 2019. D. On September 17, 2019, the Parties entered into a Second Exclusive Negotiation Agreement (No. N-2019-206) for the purpose of further planning and evaluating the feasibility of the proposed Project. E. The Parties entered into a Disposition and Development Agreement ("DDA") dated March 3, 2020, incorporated herein by this reference, pursuant to which Lessor had agreed to lease the Premises to Tenant upon the fulfillment of certain conditions precedent. F. The proposed Project will result in the redevelopment of underutilized land, development of a community micro -farm for the benefit of local residents, and increased employment opportunities within the City produced by the Project. G. Based on the reasons identified in Recital F, above, together with the commitments and obligations of the Tenant to develop the Premises and operate the Project as contained in the Page 11 75A-48 DDA and this Lease, Lessor has determined that the lease of the Premises to the Tenant for development and operation of the Project in accordance with the DDA and this Lease is in the best interest of the Lessor. H. Lessor desires to lease the Premises, and the Tenant desires to enter into a lease of the Premises for the purpose of development and operation of the Project on the Premises on the terms and conditions set forth in the DDA and this Lease. L Lessor acknowledges that the conditions precedent required by the DDA have been fulfilled and therefore the Parties desire that Tenant shall ground lease the Premises from Lessor on the terms set forth herein. J. Lessor and Tenant have jointly agreed to enter into this Lease as of the date set forth above. NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH THE PARTIES ACKNOWLEDGE, AND PURSUANT TO THE PROMISES AND COVENANTS SET FORTH IN THIS AGREEMENT, THE PARTIES AGREE, AS FOLLOWS: ARTICLE I DEFINITIONS 1.1 Definitions: The following defined terms used in this Lease shall have the meanings set forth below. Other terms are defined in other provisions of this Lease, and shall have the definitions given to such terms in such other provisions. I.I.I. "Affiliate" shall mean, with respect to any person (which as used herein includes an individual, trust or entity), any other person which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such person. 1.1.2. "Aggregate Transfer" shall refer to the total "Ownership Interest(s)" in Tenant transferred or assigned in one transaction or a series of related transactions (other than an Excluded Transfer) occurring since the latest of (a) the Effective Date, (b) the execution by Tenant of this Lease, or (c) the most recent Tenant Ownership Change; provided, however, that there shall be no double counting of successive transfers of the same interest in the case of a transaction or series of related transactions involving successive transfers of the same interest. Isolated and unrelated transfers shall not be treated as a series of related transactions for purposes of the definition of "Aggregate Transfer." 1.1.3. "Certificate of Occupancy" shall mean a temporary or final certificate of occupancy (or other equivalent entitlement, however designated) which entitles Tenant to commence normal operation and occupancy of the Improvements. Page 12 75A-49 1.1.4. "City" or "Lessor" shall mean the City of Santa Ana, California, a charter city and municipal corporation. "City Council" shall mean the City Council of the City of Santa Ana. 1.1.5. "Claims" shall mean liens, claims, demands, suits, judgments, liabilities, damages, fines, losses, penalties, costs and expenses (including without limitation reasonable attorneys' fees and expert witness costs, and costs of suit), and sums reasonably paid in settlement of any of the foregoing. 1.1.6. "Contractor" shall mean Tenant's general contractor for the construction of the Improvements. 1.1.7. "County" shall mean the County of Orange, a political subdivision of the State of California. 1.1.8. "Effective Date" is defined in the introductory paragraph to this Lease, and shall be the date on which Tenant take possession of the Premises and is entitled to commence construction pursuant to Article V, below. 1.1.9. "Event of Default' is defined in Section I I.I. 1.1.10. "Excluded Transfer" shall mean any of the following: (a) A transfer by any direct or indirect partner, shareholder, or member of Tenant (or of a limited partnership, corporation, or limited liability company that is a direct or indirect owner in Tenant's ownership structure) as of the Effective Date or the date on which a Tenant Ownership Change occurred as to the interest transferred, to any other direct or indirect partner, shareholder, or member of Tenant (or of a limited partnership, corporation, or limited liability company that is a direct or indirect owner in Tenant's ownership structure) as of the Effective Date, including in each case to or from a trust for the benefit of the immediate family of any direct or indirect partner or member of Tenant who is an individual; (b) A transfer of an Ownership Interest in Tenant or in constituent entities of Tenant (i) to a member of the immediate family of the transferor (which for purposes of this Lease shall be limited to the transferor's spouse, children, parents, siblings, and grandchildren); (ii) to a trust for the benefit of a member of the immediate family of the transferor; (iii) from such a trust or any trust that is an owner in a constituent entity of Tenant as of the Effective Date, to the settlor or beneficiaries of such trust or to one or more other trusts created by or for the benefit of any of the foregoing persons, whether any such transfer described in this subsection is the result of gift, devise, intestate succession, or operation of law; or (iv) in connection with a pledge by any partners or members of a constituent entity of Tenant to an affiliate of such partner or member; (c) A transfer of a direct or indirect interest resulting from public trading in the stock or securities of an entity, when such entity is a corporation or other entity whose stock and/or securities is/are traded publicly on a national stock exchange or traded in the over-the- Page13 75A-50 counter market and the price for which is regularly quoted in recognized national quotation services; (d) A mere change in the form, method, or status of ownership (including, without limitation, the creation of single -purpose entities) as long as the ultimate beneficial ownership remains the same as of the Effective Date, or is otherwise excluded in accordance with subsections (a) — (c) above; (e) A transfer to an Affiliated nonprofit public benefit corporation or for - profit corporation, or to a limited partnership whose general partner is a nonprofit corporation, for - profit corporation or limited liability company Affiliated with the Tenant or the Tenant's general partner, subject to the Lessor's right to approve the agreement to effect such assignment or transfer; (i) The lease, assignment of lease or sublease of any individual residential unit in the Improvements; (g) A transfer of the Tenant's interest in the Premises by foreclosure or deed in lieu of foreclosure to any bona fide third -party lender holding a lien encumbering the Premises (or its nominee); or, (h) Any assignment of the Lease by Tenant to an Affiliate of Tenant or to a Mortgagee as security in which there is no change to the direct and indirect beneficial ownership of the leasehold interest. 1.1.11. "Force Majeure Event" is defined in Article XIV. 1.1.12. "Hazardous Material(s)" is defined in Section 4.5. 1.1.13. "Improvements" shall mean and includes all buildings (including above- ground and below ground portions thereof, and all foundations and supports), building systems and equipment (such as HVAC, electrical and plumbing equipment), physical structures, fixtures, hardscape, paving, curbs, gutters, sidewalks, fences, landscaping and all other improvements of any type or nature whatsoever now or hereafter made or constructed on the Premises. The term Improvements shall mean the Initial Improvements and any replacement improvements constructed in accordance with the terms of this Lease. During the entire Term, the Improvements will be restricted to the allowed uses. 1.1.14. "Includes" shall mean "includes but is not limited to" and "including" shall mean "including but is not limited to." 1.1.15. "Initial Improvements" shall mean the improvements first constructed by Tenant on the Premises at its sole cost and expense. 1.1.16. "Interest Rate" shall mean the lower of: (a) the reference or prime rate of U.S. Bank National Association, in effect from time to time plus three percent (3%); or (b) the Page14 75A-51 highest rate of interest permissible under the Laws not to exceed the rate of twelve percent (12%) per annum. 1.1.17. "Laws" shall mean all laws, codes, ordinances, statutes, orders and regulations now or hereafter made or issued by any federal, state, county, local or other governmental agency or entity that are binding on and applicable to the Premises and Improvements. 1.1.18. "Lease" shall mean this Ground Lease (including any and all addenda, amendments and exhibits hereto), as now or hereafter amended. 1.1.19. "Lender" shall mean: (a) a bank, savings bank, investment bank, savings and loan association, mortgage company, insurance company, trust company, commercial credit corporation, real estate investment trust, pension trust or real estate mortgage investment conduit; or (b) some other type of lender engaged in the business of making commercial loans, provided that such other type of lender has total assets of at least $2,000,000 and capital/statutory surplus or shareholder's equity of at least $500,000,000 (or a substantially similar financial capacity if the foregoing tests are not applicable to such type of lender); or (c) a local, state or federal governmental entity, which provides predevelopment, construction and/or permanent financing for Tenant's development of the Property. 1.1.20. "Lessor's Interest" shall mean all of Lessor's interests in the real property, the Premises, this Lease and its existing interest in the real property, Premises, as well as the Improvements upon the expiration of the Term or earlier termination thereof. 1.1.21. "Lessor Parties" shall mean, collectively and individually, the City and its respective Affiliates, governing boards, agents, employees, members, officers, directors and attorneys. 1.1.22. "Limited Partner" shall mean any limited partner or investor member (and its successors and/or assigns) of Tenant and shall include all references to "investor" in this Ground Lease. 1.1.23. "Ownership Interests" shall mean the share(s) of stock, partnership interests, membership interests, other equity interests or any other direct or indirect ownership interests in Tenant, regardless of the form of ownership and regardless of whether such interests are owned directly or through one or more layers of constituent partnerships, corporations, limited liability companies, or trusts. 1.1.24. "Person" shall include firms, associations, partnerships, joint ventures, trusts, corporations and other legal entities, including public or governmental bodies, agencies or instrumentalities, as well as natural persons. 1.1.25. "Premises" or "Property" shall mean that certain real property containing undeveloped land in the City, together with all easements, rights and privileges appurtenant Page15 75A-52 thereto, to be leased to Tenant pursuant to this Lease and on which Tenant intends to construct the Improvements. The legal description of the Premises is attached hereto as Exhibit A. 1.1.26. "Project" shall mean the Improvements, and all related appurtenances, constructed by Tenant on the Premises. 1.1.27. "Rent" shall mean one dollar and zero cents ($1.00) per month, pursuant to the terms and conditions of this Lease, due and payable from Tenant to Lessor for lease of the Premises to the Tenant for the Project. 1.1.28. "Risk Manager" shall mean the Risk Manager for the City, or designee, or upon written notice to Tenant, such other person as may be designated by the City Council. 1.1.29. "Tenant Ownership Change" shall mean (a) any transfer or assignment by Tenant of the Leasehold Estate or (b) any "Aggregate Transfer" of at least twenty five percent (25%) of the "Ownership hiterest(s)" in Tenant, in each case that is not an "Excluded Transfer." 1.1.30. "Term" is defined in Section 2.2. 1.1.31. "Transfer" is defined in Section 10.1. 1.1.32. "Transfer Notice" is defined in Section 10.4. 1.1.33. "Work" shall mean both Tenant's construction activity with respect to the Improvements, including permitted future changes, alterations and renovations thereto and also including, without limiting the generality of the foregoing, site preparation, landscaping, installation of utilities, street construction or improvement and grading or filling in or on the Premises. ARTICLE II LEASE OF PROPERTY 2.1 Lease of Premises. 2.1.1. Lessor hereby leases the Premises to Tenant for the Term, and Tenant hereby leases the Premises from Lessor for the Term, subject to the terms, conditions, covenants, restrictions and reservations of this Lease. 2.1.2. Warranty of Peaceful Possession. Lessor covenants and warrants that, subject to the Tenant's payment of Rent and performance and observation of all of the covenants, obligations and agreements herein contained and provided to Tenant, Tenant shall and may peaceably and quietly have, hold, occupy, use and enjoy the Premises during the Term and may exercise all of its rights hereunder. Except as otherwise set forth herein, the Lessor covenants and agrees that it shall not grant any mortgage or lien on or in respect of its fee interest in the Premises unless the same is expressly subject and subordinate to this Lease. Page 16 75A-53 2.2 Term. The "Term" of this Lease shall commence on the Effective Date of this Lease, and shall expire at 12:00 midnight Pacific Standard Time on the 99a' anniversary of the Effective Date, unless sooner terminated as a result of Tenant's non-compliance with any terms, conditions, covenants, restrictions or reservations of this Lease. 2.3 Termination at End of Term. This Lease shall terminate without need of further actions of any Party at 12:00 midnight Pacific Standard Time on the last day of the Term. 2.4 Condition of the Premises. TENANT HEREBY ACCEPTS THE PREMISES "AS IS", AND ACKNOWLEDGES THAT THE PREMISES IS IN SATISFACTORY CONDITION. LESSOR MAKES NO WARRANTY, IMPLIED OR OTHERWISE, AS TO THE SUITABILITY OF THE PREMISES FOR TENANT'S PROPOSED USES. LESSOR MAKE NO COVENANTS OR WARRANTIES, IMPLIED OR OTHERWISE, RESPECTING THE CONDITION OF THE SOIL, SUBSOIL, OR ANY OTHER CONDITIONS OF THE PREMISES OR THE PRESENCE OF HAZARDOUS MATERIALS, NOR DOES LESSOR COVENANT OR WARRANT, IMPLIED OR OTHERWISE, AS TO THE SUITABILITY OF THE PREMISES FOR THE PROPOSED DEVELOPMENT, CONSTRUCTION OR USE BY TENANT. LESSOR SHALL NOT BE RESPONSIBLE FOR ANY LAND SUBSIDENCE, SLIPPAGE, SOIL INSTABILITY OR DAMAGE RESULTING THEREFROM. LESSOR SHALL NOT BE REQUIRED OR OBLIGATED TO MAKE ANY CHANGES, ALTERATIONS, ADDITIONS, IMPROVEMENTS OR REPAIRS TO THE PREMISES. TENANT SHALL RELY ON ITS OWN INSPECTION AS TO THE SUITABILITY OF THE PREMISES FOR THE INTENDED USE. TENANT INITIALS: 2.5 Limitations of the Leasehold. This Lease and the rights and privileges granted Tenant in and to the Premises are subject to all covenants, conditions, restrictions, and exceptions of record as of the date hereof or otherwise disclosed to Tenant prior to the date hereof. Nothing contained in this Lease or in any document related hereto shall be construed to imply the conveyance to Tenant of rights in the Premises which exceed those owned by Lessor, or any representation or warranty, either express or implied, relating to the nature or condition of the Premises or Lessor's interest therein. 2.6 Tenant's Investigation. Tenant acknowledges that it is solely responsible for investigating the Premises to determine the suitability thereof for the uses contemplated by Tenant. Tenant further acknowledges by executing this Lease that it has completed its investigation and has made such determinations as Tenant believes may be required under the circumstances. 2.7 Option to Purchase. Lessor grants Tenant the exclusive right to an option to purchase ("Option") the Property herein, for a gross sales price equal to a negotiated fair market value, based on an appraisal to be conducted by the Lessor, throughout the term of this lease, or if the lease is earlier terminated, at that time. Tenant shall notify Lessor in writing, prior to the termination date of the Lease Agreement, of Tenant's intent to exercise the Option. When exercising the Option, Tenant shall also deposit with Lessor the sum of $5,000 as a deposit towards the appraisal, escrow Page 17 75A-54 fees and purchase price of the premises. Upon exercise of this Option by Tenant, a closing shall take place within 60-days after City Council approval of a purchase agreement. Before the closing date, Tenant shall provide evidence of financing to purchase the Property. In the event., Tenant's reasonable efforts were unable to procure financing, the deposit shall be retained by the Lessor as liquidated damages. Whether or not the sale of the Property successfully closes, all expenses relating to the sale and to the closing, including, but not limited to, all appraisal and escrow fees, shall be borne by Tenant. Notwithstanding the forgoing, the City reserves the right to make a determination as to the validity of this Option, and to exercise this Option, in accordance with all laws and regulations prior to authorizing a purchase agreement. ARTICLE III I N D1►0 3.1 Rent. Throughout the ninety-nine (99) year Term of this Lease, regardless of an earlier termination date, Lessor shall lease the Premises to the Tenant for the Project, and the Tenant shall accept the lease of the Premises from the Lessor, at a Rent of one dollar and zero cents ($1.00) per month, pursuant to the terms and conditions of this Lease. 3.2 Triple Net Rent. It is the intent of the Parties that all Rent shall be absolutely net to Lessor and that, except as otherwise provided herein, Tenant will pay all costs, charges, insurance premiums, taxes, utilities, expenses and assessments of every kind and nature ("Tenant Costs") incurred for, against or in connection with the Premises which arise or become due during the Term as a result of Tenant's use and occupancy of the Premises. Tenant shall pay all Tenant Costs during the Term prior to delinquency. Tenant agrees to indemnify and hold harmless Lessor against any liability, claim, or demand for the late payment or non-payment of any Tenant Costs. Under no circumstances or conditions, whether now existing or hereafter arising, or whether beyond the present contemplation of the Parties, shall Lessor be obligated or required to make any payment of any kind whatsoever or be under any other obligation or liability under this Lease except as expressly provided herein. 3.3 Insufficient Funds. If any payment of Rent or other fees made by check is returned due to insufficient funds or otherwise, Lessor shall have the right to require Tenant to make all subsequent Rent payments by cashier's check, certified check or automated clearing house debit system. All Rent or other fees shall be paid in lawful money of the United States of America, without offset or deduction or prior notice or demand. No payment by Tenant or receipt by Lessor of a lesser amount than the Rent or other fees due shall be deemed to be other than on account of the Rent or other fees due, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and Lessor shall accept such check or payment without prejudice to Lessor's right to recover the balance of the Rent or other fees or pursue any other remedy available to the Lessor in this Lease. Page 18 75A-55 ARTICLE IV USE OF PREMISES 4.1 Permitted Use of Premises. Tenant may use the Premises for the construction, development, entitlement, operation, maintenance, replacement and repair of the Improvements as follows: 4.L1. Required Services and Uses. Tenant intends to use the Property pursuant to the Project Description attached to this Agreement as Exhibit `B". During the pre -development and construction timeframe, the use of the Property shall include special events planned by Tenant, only upon prior approval by the City. After the completion of construction, the certificate of occupancy issued by the City shall govern the allowable uses on the Property, which shall include micro -farm and ancillary secondary uses. Any request by Tenant to change the Project or use of the Property shall be subject to all applicable City review procedures and Approvals. 4.1.2. Ancillary Services and Uses. Subject to the prior written approval of Lessor, which approval may be granted or withheld in the sole discretion of the Lessor, Tenant may provide those additional services and uses which are ancillary to and compatible with the required services and uses set forth in Section 4.1. L, above. 4.1.3. Restricted Use. The services and uses listed in this Section 4.1, both required and optional, shall be the only services and uses permitted. Tenant agrees not to use the Premises for any other purpose or engage in or permit any other activity within or from the Premises unless approved in writing by the Lessor, which approval may be granted or withheld in the sole discretion of the Lessor. 4.1.4. Continuous Use. During the Term, Tenant shall continuously conduct Tenant's business in the Premises in the manner provided under this Lease and shall not discontinue use of the Premises for any period of time except in the case of a Force Majeure Event or as permitted in advance and in writing by the Lessor. 4.1.5. Alcohol Restrictions. The sale or service of alcoholic beverages on the premises shall only be allowed if in compliance with all applicable federal, state, and City statutes, regulations, rules and ordinances, including, but not limited to, appropriate approvals of the California Department of Alcoholic Beverage Control and the Santa Ana Planning and Building Agency.. 4.1.6. Permits and Licenses. Tenant shall be solely responsible to obtain, at its sole cost and expense, any and all permits, licenses or other approvals required for the uses permitted herein and shall maintain such permits, licenses or other approvals for the entire Term. 4.2 Nuisance; Waste. Tenant shall not maintain, commit, or permit the maintenance or commission of any nuisance as now or hereafter defined by any statutory or decisional law applicable to the Premises and Improvements or any part thereof. Tenant shall not commit or allow to be committed any waste in or upon the Premises or Improvements and shall keep the Premises and the Improvements thereon in good condition, repair and appearance. Page 19 75A-56 4.3 Compliance with Laws. Tenant shall not use or permit the Premises or the Improvements or any portion thereof to be used in any manner or for any purpose that violates any applicable Laws. Tenant shall have the right to contest, in good faith, any such Laws, and to delay compliance with such Laws during the pendency of such contest (so long as there is no material threat to life, health or safety that is not mitigated by Tenant to the satisfaction of the applicable authorities). Lessor may cooperate with Tenant in all reasonable respects in such contest, including joining with Tenant in any such contest if Lessor's joinder is required in order to maintain such contest; provided, however, that any such contest shall be without cost to Lessor, and Tenant shall indemnify, defend (with attorneys acceptable to Lessor), and hold harmless the Lessor from any and all claims, liabilities, losses, damages, or actions of any kind and nature, including reasonable attorneys' fees, arising or related to Tenant's failure to observe or comply with the contested Law during the pendency of the contest. 4.4 Hazardous Materials. 4.4.1. Definition of Hazardous Materials. For purposes of this Lease, the term "Hazardous Material" or "Hazardous Materials" shall mean any hazardous or toxic substance, material, product, byproduct, or waste, which is or shall become regulated by any governmental entity, including, without limitation, the Lessor acting in its governmental capacity, the State of California or the United States government. 4.4.2. Use of Hazardous Materials. Except for those Hazardous Materials which are customarily used in connection with the construction, operation, maintenance and repair of the hnprovements or used in connection with any permitted use of the Premises and hnprovements under this Lease (which Hazardous Materials shall be used in compliance with all applicable Laws), Tenant or Tenant's employees, agents, independent contractors or invitees (collectively "Tenant Parties") shall not cause or permit any Hazardous Materials to be brought upon, stored, kept, used, generated, released into the environment or disposed of on, under, from or about the Premises (which for purposes of this Section shall include the subsurface soil and ground water). 4.4.3. Tenant Obligations. If the presence of any Hazardous Materials on, under or about the Premises caused or permitted by Tenant or Tenant Parties, and excluding Hazardous Materials existing on the Premises prior to the Effective Date (the "Existing Hazardous Materials"), results in (i) injury to any person, (ii) injury to or contamination of the Premises (or a portion thereof), or (iii) injury to or contamination or any real or personal property wherever situated, Tenant, at its sole cost and expense, shall promptly take all actions necessary or appropriate to return the Premises to the condition existing prior to the introduction of such Hazardous Materials to the Premises and to remedy or repair any such injury or contamination. Without limiting any other rights or remedies of Lessor under this Lease, Tenant shall pay the cost of any cleanup or remedial work performed on, under, or about the Premises as required by this Lease or by applicable Laws in connection with the removal, disposal, neutralization or other treatment of such Hazardous Materials caused or permitted by Tenant or Tenant Parties, excluding any Existing Hazardous Materials. Notwithstanding the foregoing, Tenant shall not take any remedial action in response to the presence, discharge or release, of any Hazardous Materials on, under or about the Premises caused or permitted by Tenant or Tenant Parties, or enter into any settlement agreement, consent decree or other compromise with any governmental or quasi - governmental entity without first obtaining the prior written consent of the Lessor. All work Page 110 75A-57 performed or caused to be performed by Tenant as provided for above shall be done in good and workmanlike manner and in compliance with plans, specifications, permits and other requirements for such work approved by Lessor. 4.4.4. Indemnification for Hazardous Materials. (a) To the fullest extent permitted by law, Tenant hereby agrees to indemnify, hold harmless, protect and defend (with attorneys acceptable to Lessor) Lessor, its elected officials, officers, employees, agents, independent contractors, and the Premises, from and against any and all liabilities, losses, damages (including, but not limited, damages for the loss or restriction on use of rentable or usable space or any amenity of the Premises or damages arising from any adverse impact on marketing and diminution in the value of the Premises), judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including, but not limited to, reasonable attorneys' fees, disbursements and court costs and all other professional or consultant's expenses), whether foreseeable or unforeseeable (collectively, "Liabilities"), arising out of the presence, use, generation, storage, treatment, on or off -site disposal or transportation of Hazardous Materials on, into, from, under or about the Premises by Tenant or Tenant Parties, and excluding all Existing Hazardous Materials. (b) The foregoing indemnity shall also specifically include the cost of any required or necessary repair, restoration, clean-up or detoxification of the Premises and the preparation of any closure or other required plans. (c) The foregoing indemnity and defense obligations of this Lease shall survive its expiration or termination; provided, however, that the indemnity contained in this Section 4.4.4 shall not apply to any Liabilities arising or occurring (a) prior to the Effective Date of this Ground Lease, (b) after the expiration or earlier termination of the Term of this Ground Lease, or (c) as a result of the grossly negligent or wrongful acts or omissions of Lessor. 4.5 Access by Lessor. Lessor reserves the right for its authorized representatives to enter the Premises upon two (2) business days' prior written notice to Tenant, during normal business hours, in order to determine whether Tenant is complying with Tenant's obligations hereunder, or to enforce any rights given to Lessor under this Lease. Lessor and its representatives shall report to the Tenant's on -site office and must be accompanied by a representative of Tenant at all times while on the Property and obey Tenant's rules and regulations. Tenant acknowledges Lessor has the authority to enter the Premises and perform work on the Premises at any time as needed to provide immediate or necessary protection for the general public. Lessor will take all necessary measures not to unreasonably interfere with Tenant's business at the Premises in exercising its rights under this Section. Lessor shall indemnify and hold Tenant harmless from and against any loss, cost, damage or liability, including, without limitation, attorneys' fees, which results from Lessor's willful misconduct or gross negligence, or willful misconduct or gross negligence committed by any party acting under Lessor's authority, of the rights granted by this Section 4.5. Page111 75A-58 ARTICLE V CONSTRUCTION OF IMPROVEMENTS 5.1 Construction of Improvements. 5.1.1. Initial Improvements. Upon the fulfillment of the Preconditions set forth in Section 5.1.2, below, and payment for and issuance of all permits required under the Laws (whether from Lessor in its governmental capacity, or otherwise), Tenant shall construct the Initial Improvements. 5.1.2. Preconditions. No work for development of the Initial Improvements shall be commenced, and no building or other materials shall be delivered to the Premises, until: (a) Lessor has provided approval in writing that all the conditions set forth in Section 3.1 of the DDA have been satisfied; (b) Tenant has obtained a permit through the City, submitted Project design, conceptual development, plans and special provisions for the construction of Improvements in accordance with the Lessor's criteria, standard and practices; (c) Tenant has given Lessor written notice of the proposed commencement of construction of the Premises or the delivery of construction materials in order to allow Lessor to take all necessary actions under California Civil Code section 3094, including posting of a notice of non -responsibility at the Premises; and (d) Tenant has provided to Lessor evidence that (i) Tenant has entered into a Construction Contract with a Contractor in accordance with Section 5.2 below, (ii) Tenant has secured the construction funding required under Section 5.1.4 below, and (iii) Tenant has provided Lessor with assurances sufficient to construct the Initial Improvements in accordance with Section 5.3 below. 5.1.3. Utilities. To the extent not already constructed, Tenant, at no cost to Lessor, shall construct or cause to be constructed all water, gas, heat, light, power, air conditioning, telephone, broadband internet, and other utilities and related services supplied to and/or used on the Premises at Tenant's sole cost and expense for the purposes of conducting Tenant's operations thereon. All such utilities shall be separately metered from any utilities which may be used by Lessor in conducting its operations, if any, on or about the Premises. Nothing contained in this Section is to be construed or implied to give Tenant the right or permission to install or to permit any utility poles or communication towers to be constructed or installed on the Premises. 5.1.4. Construction Funding. Prior to commencement of construction of the Initial improvements, Tenant shall provide to Lessor evidence reasonably satisfactory to Lessor of funding available to Tenant that is sufficient to pay for Tenant's estimated total cost of constructing the Initial Improvements, which evidence may consist of (i) a written commitment to Tenant from a Lender selected by Tenant to provide a construction loan to Tenant for the purpose of constructing the Initial Improvements (which may be secured by a Leasehold Mortgage encumbering Tenant's leasehold interest under this Lease), (ii) actual equity funds then held by Page 112 75A-59 Tenant or irrevocably committed to be paid to Tenant for the purpose of constructing the Initial Improvements, or (iii) any combination of the foregoing. Tenant may from time to time change any of the foregoing funding sources and the allocation thereof, so long as the aggregate available funding continues to be sufficient to pay for Tenant's estimated remaining cost of constructing the Initial Improvements, provided that Tenant shall promptly notify Lessor of any such change. 5.1.5. Compliance with Laws and Permits. Tenant shall cause all Improvements made by Tenant to be constructed in substantial compliance with all applicable Laws, including all applicable grading permits, building permits, and other permits and approvals issued by governmental agencies and bodies having jurisdiction over the construction thereof. No permit, approval, or consent given hereunder by Lessor, in its governmental capacity, shall affect or limit Tenant's obligations hereunder, nor shall any approvals or consents given by Lessor, as a Party to this Lease, be deemed approval as to compliance or conformance with applicable governmental codes, laws, rules, or regulations. 5.1.6. Reports. Not less than monthly from the commencement of construction of the Initial Improvements, Tenant shall provide Lessor with written construction status reports in the form of AIA No. G702 ("Application and Certification for Payment") or comparable form, augmented by oral reports if so requested by Lessor. 5.1.7. Certificate of Occupancy. Tenant shall provide Lessor with a copy of the Certificate of Occupancy promptly following issuance thereof. 5.1.8. Insurance. Tenant shall deliver to Lessor both (i) certificates of insurance evidencing required coverage as specified in Section 8.1, and (ii) evidence of worker's compensation insurance, which provide the requisite insurance levels in accordance with Article VIII, for all persons employed in connection with the construction of any Improvements upon the Premises and with respect to whom death or bodily injury claims could be asserted against Lessor or the Premises. Tenant shall (or shall cause Contractor to) maintain, keep in force and pay all premiums required to maintain and keep in said insurance herein at all times during which construction Work is in progress. 5.1.9. Mechanic's Liens. (a) Payment of Liens. Tenant shall pay or cause to be paid the total cost and expense of all "Work of Improvement," as that phrase is defined in the California Mechanics' Lien law in effect and as amended from time to time. Tenant shall not suffer or permit to be enforced against the Premises or Improvements or any portion thereof, any mechanics', materialmen's, contractors' or subcontractors' liens arising from any work of improvement, however it may arise. Tenant may, however, in good faith and at Tenant's sole cost and expense contest the validity of any such asserted lien, claim, or demand, provided Tenant (or any contractor or subcontractor, as applicable) has furnished the release bond (if required by Lessor or any construction lender) required in California Civil Code section 8000 et seq. (or any comparable statute hereafter enacted for providing a bond freeing the Premises from the effect of such lien claim). In the event a lien or stop -notice is imposed upon the Premises as a result of such construction, repair, alteration, or installation, and provided the lien is not the result of actions of, or work performed by, the Lessor, Tenant shall either: Page 113 75A-60 (1) Record a valid Release of Lien, or (2) Procure and record a bond in accordance with Section 8424 of the Civil Code, which releases the Premises from the claim of the lien or stop -notice and from any action brought to foreclose the lien, or (3) Post such security as shall be required by Tenant's title insurer to insure over such lien or stop -notice, or (4) Should Tenant fail to accomplish either of the three optional actions above within 30 days after Tenant receives notice of the filing of such a lien or stop -notice, it shall constitute an Event of Default hereunder. (b) Indemnification. Tenant shall at all times indemnify, defend with counsel approved in writing by Lessor and hold Lessor harmless from all claims, losses, demands, damages, cost, expenses, or liability costs for labor or materials in connection with construction, repair, alteration, or installation of structures, improvements, equipment, or facilities within the Premises, and from the cost of defending against such claims, including reasonable attorneys' fees and costs, but excluding any liability resulting from the gross negligence or willful misconduct of Lessor, and excluding any liens resulting from the actions of, or work performed by, the Lessor. (c) Protection Against Liens. Lessor shall have the right to post and maintain on the Premises any notices of non -responsibility provided for under applicable California law. During the course of construction, Tenant shall obtain customary mechanics' lien waivers and releases. Upon completion of the construction of any Improvements, Tenant shall record a notice of completion in accordance with applicable law. Promptly after the Improvements have been completed, Tenant shall (or shall cause Contractor to) record a notice of completion as defined and provided for in California Civil Code section 8000 et seq. (d) Lessor's Rights. If Tenant (or any contractor or subcontractor, as applicable) does not cause to be recorded the bond described in California Civil Code section 8000 et seq. or otherwise protect the Premises and Improvements under any alternative or successor statute, and a 1ma1 judgment has been rendered against Tenant by a court of competent jurisdiction for the foreclosure of a mechanic's, materialman's, contractor's or subcontractor's lien claim, and if Tenant fails to stay the execution of judgment by lawful means or to pay the judgment, Lessor shall have the right, but not the duty to pay or otherwise discharge, stay or prevent the execution of any such judgment or lien or both. Upon any such payment by Lessor, Tenant shall immediately upon receipt of written request therefor by Lessor, reimburse Lessor for all sums paid by Lessor under this paragraph together with all Lessor's reasonable attorney's fees and costs, plus interest at the Interest Rate from the date of payment until the date of reimbursement. 5.1.10. No Responsibility. Any approvals by Lessor with respect to any Improvements shall not make Lessor responsible for the Improvement with respect to which approval is given or the construction thereof. Tenant shall indemnify, defend and hold Lessor harmless from and against all liability and all claims of liability (including, without limitation, reasonable attorneys' fees and costs) arising during the Term of this Lease for damage or injury to persons or property or for death of persons arising from or in connection with the Improvement or Page 114 75A-61 construction thereof, but excluding any liability resulting from the gross negligence or willful misconduct of Lessor, and excluding any liens resulting from the actions of, or work performed by, the Lessor. 5.2 Prevailing Wages. 5.2.1 THE TENANT AGREES WITH THE CITY THAT THE TENANT SHALL ASSUME ANY AND ALL RESPONSIBILITY AND BE SOLELY RESPONSIBLE FOR DETERMINING WHETHER OR NOT LABORERS EMPLOYED RELATIVE TO THE CONSTRUCTION OR INSTALLATION OF THE PROJECT MUST BE PAID THE PREVAILING PER DIEM WAGE RATE FOR THEIR LABOR CLASSIFICATION, AS DETERMINED BY THE STATE, PURSUANT TO LABOR CODE SECTIONS 1720, ET SEQ. 5.2.2 THE TENANT, ON BEHALF OF ITSELF, ITS SUCCESSORS, AND ASSIGNS, WAIVES AND RELEASES THE CITY FROM ANY RIGHT OF ACTION THAT MAY BE AVAILABLE TO ANY OF THEM PURSUANT TO LABOR CODE SECTION 1781. THE TENANT ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE SECTION 1542 RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN THIS SECTION 4.8, WHICH 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. 5.2.3 BY INITIALING BELOW, THE TENANT KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 4: Initials of Authorized Tenant Representative 5.2.4 ADDITIONALLY, THE TENANT SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY AGAINST ANY CLAIMS PURSUANT TO LABOR CODE SECTION 1781 ARISING FROM THIS AGREEMENT OR THE CONSTRUCTION OR INSTALLATION OF ALL OR ANY PORTION OF THE PROJECT. 5.3 Tenant's Assurance of Construction Completion. Prior to commencement of construction of the Initial Improvements, or any phase thereof, within the Premises by Tenant, Tenant shall furnish to Lessor evidence that assures Lessor that sufficient monies will be available to complete the proposed construction. The amount of money available shall be at least the total estimated construction cost. Such evidence may take one of the following forms: 5.3.1. Performance bond and labor and materials bond in a principal sum equal to the total estimated construction cost supplied by Contractor or subcontractors - Page 115 75A-62 5.3.2. Irrevocable letter of credit issued to Lessor from a financial institution. 5.3.3. Cash deposited with the Lessor (may be in the form of cashier's check or money order or may be electronically deposited); 5.3.4. A completion guaranty, in favor of Lessor from an Affiliate of Tenant, in a form reasonably acceptable to Lessor, coupled with a repayment guaranty in favor of the senior construction lender for its loan; 5.3.5. Any combination of the above. All bonds and letters of credit must be issued by a company qualified to do business in the State of California and acceptable to Lessor. All bonds and letters of credit shall be in a form acceptable to Lessor, and Lessor's Risk Manager in their reasonable discretion, and shall insure faithful and full observance and performance by Tenant of all terms, conditions, covenants, and agreements relating to the construction of improvements within the Premises. Tenant shall provide or cause its Contractor to provide payment and/or performance bonds in connection with the construction of the Initial Improvements, and shall name the Lessor as an additional obligee on, with the right to enforce, any such bonds. 5.4 Ownership of Improvements. 5.4.1. For purposes of this Section 5.4, "Term" shall have the meaning stated in Section 2.2. 5.4.2. During Term. Title to all Improvements constructed or placed on the Premises by Tenant and paid for by Tenant are and shall be vested in Tenant during the Term of this Lease, until the expiration or earlier termination thereof. Any and all depreciation, amortization and tax credits for federal or state purposes relating to the Improvements located on the Premises and any and all additions thereto shall be deducted or credited exclusively by Tenant during the Term. The Parties agree for themselves and all persons claiming under them that the hnprovements are real property. 5.4.3. Upon Expiration or Earlier Termination of Term. All Improvements on the Premises at the expiration or earlier termination of the Term of this Lease shall, without additional payment to Tenant, then become Lessor's property free and clear of all claims to or against them by Tenant and free and clear of all Leasehold Mortgages and any other liens and claims arising from Tenant's use and occupancy of the Premises, and with taxes paid current as of the expiration or earlier termination date. Tenant shall upon the expiration or earlier termination of the Term deliver possession of the Premises and the Improvements to Lessor in good order, condition and repair consistent with the requirements of this Lease and in compliance with all applicable laws and regulations for the occupancy of the Project, taking into account reasonable wear and tear and the age of the improvements. 5.5 "AS -BUILT" Plans. Within sixty (60) days following completion of any substantial improvement within the Premises, Tenant shall furnish to Lessor a complete set of reproducibles and two sets of prints of "As -Built" plans and a magnetic tape, disk or other storage device Page 116 75A-63 containing the "As -Built" plans in a form usable by Lessor, to Lessor's satisfaction, on Lessor's computer aided mapping and design ("CAD") equipment. CAD files are also to be converted to Acrobat Reader (pdf format), which shall be included on the disk or CD ROM. In addition, Tenant shall furnish Lessor copy of the final construction costs for the construction of such improvements. ARTICLE VI REPAIRS, MAINTENANCE, ADDITIONS AND RECONSTRUCTION 6.1 Maintenance by Tenant. Throughout the Term of this Lease, Tenant shall, at Tenant's sole cost and expense, keep and maintain the Premises and any and all Improvements now or hereafter constructed and installed on the Premises in good order, condition and repair (i.e., so that the Premises does not deteriorate more quickly than its age and reasonable wear and tear would otherwise dictate) and in a safe and sanitary condition and in compliance with all applicable Laws in all material respects. Tenant shall immediately notify the Lessor of any damage relating to the Premises. 6.2 Interior Improvements, Additions and Reconstruction of Improvements. Following the completion of construction of the Initial Improvements, Tenant shall have the right from time to time to make any interior improvements to the Improvements that are consistent with the Lessor's approved use of the Premises as reflected in this Lease, without Lessor's prior written consent, but with prior written notice to the Lessor (except in the event of an emergency, in which case no prior written notice shall be required but Tenant shall notify Lessor of any emergency work done as soon as practicable). With prior written approval of Lessor, Tenant may restore and reconstruct the Improvements, and in that process make any modifications otherwise required by changes in Laws, following any damage or destruction thereto (whether or not required to do so under Article VII); and/or to make changes, revisions or improvements to the Improvements for uses consistent with the Lessor approved use of the Premises as reflected in this Lease. Tenant shall perform all work authorized by this Section at its sole cost and expense, including, without limitation, with insurance proceeds approved for such use in accordance with Article VII, if any, and in compliance with all applicable Laws in all material respects. 6.3 All Other Construction, Demolition, Alterations, Improvements and Reconstruction. Following the completion of construction of the Initial Improvements, and except as specified in Sections 6.1 and 6.2, any construction, alterations, additions, major repairs, demolition, improvements or reconstruction of any kind shall require the prior written consent of the Lessor. Tenant shall perform all work authorized by this Section at its sole cost and expense, including, without limitation, with insurance proceeds approved for such use in accordance with Article VII, if any, and in compliance with all applicable Laws in all material respects. 6.4 Requirements of Governmental Agencies. At all times during the Term of this Lease, Tenant, at Tenant's sole cost and expense, shall: (i) make all alterations, improvements, demolitions, additions or repairs to the Premises and/or the Improvements required to be made by any law, ordinance, statute, order or regulation now or hereafter made or issued by any federal, state, county, local or other governmental agency or entity; (ii) observe and comply in all material respects with all Laws now or hereafter made or issued respecting the Premises and/or the Improvements; (iv) indemnify, defend and hold Lessor, the Premises and the Improvements free Page 117 75A-64 and harmless from any and all liability, loss, damages, fines, penalties, claims and actions resulting from Tenant's failure to comply with and perform the requirements of this Article VI. 6.5 Lessor Obligations. Tenant specifically acknowledges and agrees that Lessor and Lessor Parties do not and shall not have any obligations with respect to the maintenance, alteration, improvement, demolition, replacement, addition or repair of any Improvements. 6.6 Lessor Reservations. Without limiting Lessor's rights with respect to the Premises, Lessor reserves for itself, its successors and assigns those rights necessary to assure proper maintenance and operation of the Premises and to permit any steps to be taken which the Lessor deems necessary or desirable to maintain, repair, improve, modify or reconstruct the Premises. The rights reserved to Lessor in this section or any other section of this Lease shall be exercised by the Lessor at its sole discretion, unless otherwise provided herein. ARTICLE VII DAMAGE AND RESTORATION 7.1 Damage and Restoration. In the event the whole or any part of the Improvements shall be damaged or destroyed by fire or other casualty, damage or action of the elements which is fully covered by insurance required to be carried by Tenant pursuant to this Lease or in fact caused by Tenant, at any time during the Term, Tenant shall with all due diligence, at Tenant's sole cost and expense, repair, restore and rebuild the Improvements on substantially the same plan and design as existed immediately prior to such damage or destruction and to substantially the same condition that existed immediately prior to such damage, with any changes made by Tenant to comply with then applicable Laws and with any upgrades or improvements that Tenant may determine in its reasonable discretion. If Tenant desires to change the use of the Premises following such casualty, then Tenant may make appropriate changes to the Premises to accommodate such changed use after approval of such change of use by the Lessor pursuant to Article IV above. This Article shall not apply to cosmetic damage or alterations. In the event that Tenant shall determine, by notice to the Lessor given by the later of ninety (90) days after the date of the damage or destruction or thirty (30) days after receipt by Tenant of any such insurance proceeds, that there are not adequate proceeds to restore the Improvements and/or the Premises to substantially the same condition in which they existed prior to the occurrence of such damage or destruction, then Tenant may terminate this Lease as of a date that is not less than thirty (30) days after the date of such notice. If Tenant terminates this Lease pursuant to this Section 7.1, Tenant shall surrender possession of the Premises to the Lessor immediately and assign to the Lessor (or, if same has already been received by Tenant, pay to the Lessor) all of its right, title and interest in and to the proceeds from Tenant's insurance upon the Premises. 7.2 Restoration. In the event of any restoration or reconstruction pursuant to this Section, all such work performed by Tenant shall be constructed in a good and workmanlike manner according to and in conformance with the Laws, rules and regulations of all governmental bodies and agencies and the requirements of this Lease applicable to the construction of the Initial Improvements. Page 118 75A-65 7.3 No Rental Abatement. Tenant shall not be entitled to any abatement, allowance, reduction, or suspension of Rent because part or all of the Improvements become untenantable as a result of the partial or total destruction of the Improvements, and Tenant's obligation to keep and perform all covenants and agreements on its part to be kept and performed hereunder, shall not be decreased or affected in any way by any destruction of or damage to the Improvements; except as otherwise provided herein. 7.4 Application of Insurance Proceeds. If following the occurrence of damage or destruction to the Premises or Improvements, Tenant is obligated to or determines that there are adequate proceeds to restore the Premises and Improvements pursuant to this Article VII, then all proceeds from the insurance required to be maintained by Tenant on the Premises and the Improvements shall be applied to fully restore the same, and, any excess proceeds shall be paid to Tenant and any deficit in necessary funds plus the amount of any deductible shall be paid by Tenant. If Tenant after commencing or causing the commencement of the restoration of Premises and Improvements shall determine that the insurance proceeds are insufficient to pay all costs to fully restore the Improvements, Tenant shall pay the deficiency and shall nevertheless proceed to complete the restoration of Premises and the Improvements and pay the cost thereof. Upon lien free completion of the restoration, any balance of the insurance proceeds remaining over and above the cost of such restoration shall be paid to Tenant. 7.5 Exclusive Remedies. Notwithstanding any destruction or damage to the Premises and/or the Improvements, Tenant shall not be released from any of its obligations under this Lease, except to the extent and upon the conditions expressly stated in this Article VII. Lessor and Tenant hereby expressly waive the provisions of California Civil Code Sections 1932(2) and 1933(4) with respect to any damage or destruction of the Premises and/or the Improvements and agree that their rights shall be exclusively governed by the provisions of this Article VII. ARTICLE VM INSURANCE AND INDENINITY 8.1 Insurance. The Tenant, to protect the Lessor against any and all claims and liability for death, injury, loss and damage resulting from the Tenant's actions in connection with this Lease, the Premises and the Project, shall, at the Tenant's sole cost and expense, throughout the term of the Lease of the Premises, maintain the following insurance (or its then reasonably available equivalent), as applicable: (a) Liability Insurance; (b) Property Insurance; (c) Builder's Risk Insurance; and (d) Worker's Compensation Insurance. Additionally, the Tenant, to protect the Lessor, shall cause its contractors and subcontractors, at their sole cost and expense, until issuance of a Certificate of Completion for the Project, to maintain Contractor's Insurance. 8.1.1 Nature of Insurance. All Liability Insurance, Property Insurance, Automobile Liability Insurance and Contractor's Insurance policies this Lease requires shall be issued by carriers that: (a) are listed in the then current `Best's Key Rating Guide—property/Casualty— United States & Canada" publication (or its equivalent, if such publication ceases to be published) with a minimum financial strength rating of "A" and a minimum financial size category of "VII'; Page 119 75A-66 and (b) are admitted to do business in the State of California by the California Department of Insurance. The Tenant may provide any insurance under a "blanket" or `umbrella" insurance policy, provided that (i) such policy or a certificate of such policy shall specify the amount(s) of the total insurance allocated to the Premises and the Project, which amount(s) shall equal or exceed the amount(s) required by this Lease and shall not be reduced for claims made for other properties; and (ii) such policy otherwise complies with this Lease. 8.1.2 Policy Requirements and Endorsements. All insurance policies this Lease requires shall contain (by endorsement or otherwise) the following provisions: (a) Insured. Liability Insurance, Automobile Liability Insurance and Contractor's Insurance policies shall name the Lessor as "additional insured." Property Insurance Policies shall name the Lessor as a "loss payee." The coverage afforded to the Lessor shall be at least as broad as that afforded to the Tenant and may not contain any terms, conditions, exclusions, or limitations applicable to the Lessor that do not apply to the Tenant. (b) Primary Coverage. All policies shall be written as primary policies, not contributing to or in excess of any coverage that the Lessor may carry. (c) Contractual Liability. Liability Insurance policies shall contain contractual liability coverage, for the Tenant's indemnity obligations under this Lease. The Tenant's obtaining or failure to obtain such contractual liability coverage shall not relieve the Tenant from nor satisfy any indemnity obligation of the Tenant under this Lease. (d) Deliveries to the Lessor. Prior to the commencement of any Due Diligence Investigations, and no later than twenty (20) days before any insurance required by this Lease expires, is cancelled or its liability limits are reduced or exhausted, the Tenant shall deliver to the Lessor certificates of insurance evidencing the Tenant's maintenance of all insurance this Lease requires. Each insurance carrier shall give the Lessor no less than thirty (30) calendar days' advance written Notice of any cancellation, non -renewal, material change in coverage or available limits of liability under any insurance policy required by this Lease. Also, phrases such as "endeavor to" and "but failure to mail such Notice shall impose no obligation or liability of any kind upon the company" shall not be included in the cancellation wording of any certificates of insurance or any coverage for the Lessor. (e) Waiver of Certain Claims. The Tenant shall attempt in good -faith to cause the insurance carrier for each Liability Insurance, Automobile Liability Insurance and Property Insurance policy to agree to a Waiver of Subrogation, if not already in the policy. To the extent that the Tenant actually obtains insurance with a Waiver of Subrogation, the Parties release each other, and their respective authorized representatives, from any claims for damage to any Person or property that are caused by or result from risks insured against under such insurance policies. (i) No Representation. Neither Party makes any representation that the limits, scope, or forms of insurance coverage this Lease requires are adequate or sufficient. (g) No Claims Made Coverage. None of the insurance coverage required under this Lease may be written on a claims -made basis. Page 120 75A-67 (h) Fully Paid and Non -Assessable. All insurance obtained and maintained by the Tenant in satisfaction of the requirements of this Lease shall be fully paid for and non -assessable. (i) Lessor Option to Obtain Coverage. During the continuance of an Event of Default arising from the Tenant's failure to carry any insurance required by this Lease, the Lessor may, at its sole option, purchase any such required insurance coverage and the Lessor shall be entitled to immediate payment from the Tenant of any premiums and associated costs paid by the Lessor for such insurance coverage. Any amount becoming due and payable to the Lessor under this Section 4.9 that is not paid within fifteen (15) calendar days after written demand from the Lessor for payment of such amount, with an explanation of the amounts demanded, will bear interest from the date of the demand at the rate of ten percent (10%) per annum or the maximum rate allowed by California law, whichever is less. Any election by the Lessor to purchase or not to purchase insurance otherwise required by the terms of this Lease to be carried by the Tenant shall not relieve the Tenant of its obligation to obtain and maintain any insurance coverage required by this Lease. (j) Cross -Liability; Severability of Interests. All Liability Insurance and Contractor's Insurance shall be endorsed to provide cross -liability coverage for the Tenant and the Lessor and to provide severability of interests. (k) Deductibles and Self -Insured Retentions. The Tenant shall pay or cause to be paid any and all deductibles and self -insured retentions under all insurance policies issued in satisfaction of the terms of this Lease regarding any claims relating to the Lessor. (1) No Separate Insurance. The Tenant shall not carry separate or additional insurance concurrent in form or contributing in the event of loss with that required under this Lease, unless endorsed in favor of the Lessor, as required by this Lease. (m) Insurance Independent of Indemnification. The insurance requirements of this Lease are independent of the Tenant's indemnification and other obligations under this Lease and shall not be construed or interpreted in any way to satisfy, restrict, limit, or modify the Tenant's indemnification or other obligations or to limit the Tenant's liability under this Lease, whether within, outside, or in excess of such coverage, and regardless of solvency or insolvency of the insurer that issues the coverage; nor shall the provision of such insurance preclude the Lessor from taking such other actions as are available to it under any other provision of this Lease or otherwise at law or in equity 8.2 Indemnification. 8.2.1 Obligations. The Lessor shall Indemnify the Tenant and the Tenant shall Indemnify the Lessor against any wrongful intentional act or negligence of the Indemnitor. The Tenant shall also Indemnify the Lessor against any and all of the following: (a) any Application made at the Tenant's request; (b) any Due Diligence Investigations by the Tenant; (c) use, occupancy, management or operation of the Project; (d) any agreements that the Tenant (or anyone claiming through the Tenant) makes regarding the Project; (e) the condition of the Project or any space under, adjoining or appurtenant to the Premises; and, (i) any accident, injury or damage Page 121 75A-68 whatsoever caused to any Person in or on the Premises or the Project. Notwithstanding anything to the contrary in this Lease, no Indemnitor shall be required to Indemnify any Indemnitee to the extent of the Indemnitee's wrongful intentional acts or negligence. 8.2.2 Limitation on Liability of the Lessor. Following the execution of the Lease, the Tenant is and shall be responsible for operation of the Premises and the Project, and the Lessor shall not be liable for any injury or damage to any property (of the Tenant or any other Person) or to any Person occurring on or about the Premises or the Project, except to the extent caused by the Lessor's wrongful intentional act or negligence. 8.2.3 Strict Liability. The indemnification obligations of an Indemnitor shall apply regardless of whether liability without fault or strict liability is imposed or sought to be imposed on one or more Indemnitees. 8.2.4 Independent of Insurance Obligations. The Tenant's indemnification obligations under this Lease shall not be construed or interpreted as in any way restricting, limiting, or modifying the Tenant's insurance or other obligations under this Lease and is independent of the Tenant's insurance and other obligations under this Lease. The Tenant's compliance with its insurance obligations and other obligations under this Lease shall not in any way restrict, limit, or modify the Tenant's indemnification obligations under this Lease and are independent of the Tenant's indemnification and other obligations under this Lease. 8.2.5 Survival of Indemnification and Defense Obligations. The indemnity and defense obligations under this Lease shall survive the expiration or earlier termination of this Lease, until all claims against any of the Indemnitees involving any of the indemnified matters are fully, finally, absolutely and completely barred by applicable statutes of limitations. 8.2.6 Independent Duty to Defend. The duty to defend under this Lease is separate and independent of the duty to Indemnify. The duty to defend includes claims for which an Indemnitee may be liable without fault or strictly liable. The duty to defend applies immediately upon notice of a Claim, regardless of whether the issues of negligence, liability, fault, default or other obligation on the part of the Indemnitor or the Indemnitee have been determined. The duty to defend applies immediately, regardless of whether the Indemnitee has paid any amounts or incurred any detriment arising out of or relating (directly or indirectly) to any claims. It is the express intention of the Parties that an Indemnitee be entitled to obtain summary adjudication or summary judgment regarding an Indemnitor's duty to defend the Indemnitee, at any stage of any claim or suit, within the scope of the Indemnitor's indemnity obligations under this Lease. 8.3 Indemnification Procedures. Wherever this Lease requires any Indemnitor to Indemnify any Indemnitee: 8.3.1 Prompt Notice. The Indemnitee shall promptly Notify the Indemnitor of any claim. To the extent, and only to the extent, that the Indemnitee fails to give prompt Notice of a Claim and such failure materially prejudices the Indemnitor in providing indemnity for such claim, the Indemnitor shall be relieved of its indemnity obligations for such claim. 8.3.2 Selection of Counsel. The Indemnitor shall select counsel reasonably acceptable to the Indemnitee. Counsel to Indemnitor's insurance carrier that is providing coverage Page 122 75A-69 for a claim shall be deemed reasonably satisfactory. Even though the Indemnitor shall defend the action, Indemnitee may, at its option and its own expense, engage separate counsel to advise it regarding the claim and its defense. The Indemnitee's separate counsel may attend all proceedings and meetings. The hidemnitor's counsel shall actively consult with the Indemnitee's separate counsel. The Indemnitor and its counsel shall, however, fully control the defense, except to the extent that the Indemnitee waives its rights to indemnity and defense for such claim. 8.3.3 Cooperation. The Indemnitee shall reasonably cooperate with the Indemnitor's defense of the Indemnitee, provided the Indemnitor reimburses the Indemnitee's actual out of pocket expenses (including Legal Costs) of such cooperation. 8.3.4 Settlement. The Indemnitor may, with the Indemnitee's consent, not to be unreasonably withheld, settle a claim. The Indemnitee's consent shall not be required for any settlement by which all of the following occur: (a) the Indemnitor procures (by payment, settlement, or otherwise) a release of the Indemnitee from the subject claim(s) by which the Indemnitee need not make any payment to the claimant; (b) neither the Indemnitee nor the Indemnitor on behalf of the Indemnitee admits liability; (c) the continued effectiveness of this Lease is not jeopardized in any way; and (d) the Indemnitee's interest in the Project is not jeopardized in any way. 8.3.5 Insurance Proceeds. The Indemnitor's obligations shall be reduced by net insurance proceeds the Indemnitee actually receives for the matter giving rise to indemnification obligation. ARTICLE IX CONDEMNATION 9.1 Definitions. 9.1.1. "Condemnation" means (i) the taking or damaging, including severance damage, by eminent domain or by inverse condemnation or for any public or quasi -public use under any statute, whether by legal proceedings or otherwise, by a Condemnor (hereinafter defined), and (ii) a voluntary sale or transfer to a Condemnor, either under threat of condemnation or while condemnation legal proceedings are pending. 9.1.2. "Date of Taking" means the later of (i) the date actual physical possession is taken by the Condemnor; or (ii) the date on which the right to compensation and damages accrues under the law applicable to the Premises. 9.1.3. "Award" means all compensation, sums or anything of value awarded, paid or received for a Total Taking, a Substantial Taking or a Partial Taking (hereinafter defined), whether pursuant to judgment or by agreement or otherwise. 9.1.4. "Condemnor" means any public or quasi -public authority or private corporation or individual having the power of condemnation. Page 123 75A-70 9.1.5. "Total Taking" means the taking by Condemnation of all of the Premises and all of the Improvements. 9.1.6. "Substantial Taking" means the taking by Condemnation of so much of the Premises or Improvements or both that one or more of the following conditions results, as reasonably determined by Tenant: (i) The remainder of the Premises would not be economically and feasibly usable by Tenant; and/or (ii) A reasonable amount of reconstruction would not make the Premises and Improvements a practical improvement and reasonably suited for the uses and purposes for which the Premises were being used prior to the Condemnation; and/or (iii) The conduct of Tenant's business on the Premises would be materially and substantially prevented or impaired. 9.1.7. "Partial Taking" means any taking of the Premises or Improvements that is neither a Total Taking nor a Substantial Taking. 9.1.8. "Notice of Intended Condemnation" means any notice or notification on which a reasonably prudent person would rely and which he would interpret as expressing an existing intention of Condemnation as distinguished from a mere preliminary inquiry or proposal. It includes but is not limited to service of a Condemnation summons and complaint on a Party hereto. The notice is considered to have been received when a Party receives from the Condemnor a notice of intent to condemn, in writing, containing a description or map reasonably defining the extent of the Condemnation. 9.2 Notice and Representation. 9.2.1. Notification. The Party receiving a notice of one or more of the kinds specified below shall promptly notify the other Party of the receipt, contents and dates of such notice: (i) a Notice of Intended Condemnation; (ii) service of any legal process relating to the Condemnation of the Premises or Improvements; (iii) any notice in connection with any proceedings or negotiations with respect to such a Condemnation; (iv) any notice of an intent or willingness to make or negotiate a private purchase, sale or transfer in lieu of Condemnation. 9.2.2. Separate Representation. Lessor and Tenant each have the right to represent its respective interest in each Condemnation proceeding or negotiation and to make full proof of its claims. No agreement, settlement, sale or transfer to or with the Condemnor shall be made without the consent of Lessor and Tenant. Lessor and Tenant shall each execute and deliver to the other any instruments that may be required to effectuate or facilitate the provisions of this Lease relating to Condemnation. 9.3 Total or Substantial Taking. 9.3.1. Total Taking. On a Total Taking, this Lease shall terminate on the Date of Taking. 9.3.2. Substantial Taking. If a taking is a Substantial Taking, Tenant may, by notice to Lessor given within ninety (90) days after Tenant receives a Notice of Intended Condemnation, elect to treat the taking as a Total Taking. If Tenant does not so notify Lessor, the taking shall be deemed a Partial Taking. Page 124 75A-71 9.3.3. Early Delivery of Possession. Tenant may continue to occupy the Premises and Improvements until the Condemnor takes physical possession. At any time following Notice of Intended Condemnation, Tenant may in its sole discretion, elect to relinquish possession of the Premises to Lessor before the actual Taking. The election shall be made by notice declaring the election and agreeing to pay all Rent required under this Lease to the Date of Taking. Tenant's right to apportionment of or compensation from the Award shall then accrue as of the date that the Tenant relinquishes possession. 9.3.4. Apportionment of Award. On a Total Taking all sums, including damages and interest, awarded for the fee or leasehold or both shall be distributed and disbursed as finally determined by the court with jurisdiction over the Condemnation proceedings in accordance with applicable law. Notwithstanding anything herein to the contrary, Tenant shall be entitled to receive compensation for the value of its leasehold estate under this Lease including its fee interest in all improvements, personal property and trade fixtures located on the Premises, its relocation and removal expenses, its loss of business goodwill and any other items to which Tenant may be entitled under applicable law. 9.4 Partial Taking. 9.4.1. Effect on Rent. On a Partial Taking this Lease shall remain in full force and effect covering the remainder of the Premises and Improvements, and Tenant shall not be entitled to any refund of the Rent. 9.4.2. Restoration of Improvements. Promptly after a Partial Taking, Tenant shall repair, alter, modify or reconstruct the Improvements ("Restoring") so as to make them reasonably suitable for Tenant's continued occupancy for the uses and purposes for which the Premises are leased. 9.4.3. Apportionment of Award. On a Partial Taking, Lessor shall be entitled to receive the entire award for such Partial Taking, except that (i) the proceeds of such Partial Taking shall first be applied towards the cost of Restoring the Premises pursuant to Section 9.4.2 and (ii) Tenant shall be entitled to receive any portion of such award allocated to Tenant's interest in any of Tenant's Improvements, Personal property and trade fixtures taken, and any part of the award attributable to the low income housing tax credits. 9.5 Waiver of Termination Rights. Both Parties waive their rights under Section 1265.130 of the California Code of Civil Procedure (and any successor provision) and agree that the right to terminate this Lease in the event of Condemnation shall be governed by the provisions of this Article IX. ARTICLE X ASSIGNMENT, SUBLETTING AND ENCUMBERING 10.1 General. Except as provided in Sections 10.3, Tenant shall not mortgage, pledge, hypothecate, encumber, transfer, sublease Tenant's interest in this Lease or assign (including an Page 125 75A-72 assignment by operation of law) Tenant's interest in the Premises or Improvements or any part or portion thereof (hereinafter referred to collectively as "Transfer") without the written consent of the Lessor. Tenant's failure to obtain the Lessor's written consent to a Transfer shall render such Transfer void. Occupancy of the Premises by a prospective transferee, sublessee, or assignee prior to Lessor's written consent of a Transfer shall constitute an Event of Default, except as set forth in Section 10.3, below. 10.1.1. Except as provided in Section 10.3, below, if Tenant hereunder is a corporation, limited liability company, an unincorporated association or partnership, the sale or transfer of any stock or interest in said corporation, company, association and partnership in the aggregate exceeding 25% shall require the written consent of the Lessor, as set forth in Section 10.1, above. 10.1.2. Should Lessor consent to any Transfer, such consent and approval shall not constitute a waiver of any of the terms, conditions, covenants, restrictions or reservations of this Lease nor be construed as Lessor's consent to any further Transfer. Such terms, conditions, covenants, restrictions and reservations shall apply to each and every Transfer hereunder and shall be severally binding upon each and every party thereto. Any document regarding the Transfer of the Premises or any part thereof shall not be inconsistent with the provisions of this Lease and in the event of any such inconsistency, the provisions of this Lease shall control. 10.1.3. This Section shall not be interpreted to prohibit, disallow or require Lessor's consent to space leases (subleases of less than Tenant's entire Lease interest), which are consistent with the approved uses under this Lease. 10.2 Leasehold Mortgage. Under no circumstances may Tenant mortgage, encumber or hypothecate Lessor's Fee Interest. 10.3 Excluded Transfers. Lessor's consent, as set forth in Section 10.1, above, shall not be required for any Excluded Transfer (each party to whom an Excluded Transfer may be made is a "Permitted Transferee"), provided, however, that (1) Tenant shall notify Lessor of such Excluded Transfer at least twenty (20) days prior to the consummation of such Excluded Transfer, and shall provide Lessor with information regarding the transferee evidencing that the Transfer falls within the scope of this Section 10.3 and the definition of Excluded Transfer, and (2) if such Transfer involves an assignment of Tenant's rights under this Lease, Tenant or such transferee shall provide Lessor with a written assumption of Tenant's obligations and liabilities under this Lease executed by such transferee in a form approved by the Lessor; provided, however, that the provisions of this Section 10.3 shall not apply to any Transfer to a Foreclosure Transferee. 10.4 Transfer Procedure. The provisions of this Section 10.4 shall not be applicable to an Excluded Transfer, which shall be governed by Section 10.3, above. If Tenant desires at any time to enter into a Transfer for which Lessor's consent is required hereunder, Tenant shall provide Lessor with written notice ("Transfer Notice") at least ninety (90) days prior to the proposed effective date of the Transfer. The Transfer Notice shall include (i) the name and address of the proposed transferee, (ii) the nature of the Transfer (e.g., whether an assignment, sublease, etc.), (iii) the proposed effective date of the Transfer, (iv) income statements and "fair market" balance sheets of the proposed transferee for the two (2) most recently completed fiscal or calendar years Page 126 75A-73 (provided however, if the proposed transferee is a newly formed entity and has not been in existence for such two (2) year period, the financial statements submitted shall be those of its principals), (v) a detailed description of the proposed transferees qualifications and experience that demonstrates the transferee meets the criteria for a Tenant as established by this Lease, and (vi) a bank or other credit reference. Thereafter, Tenant shall furnish such supplemental information as Lessor may reasonably request concerning the proposed transferee. Lessor shall, no later than ninety (90) days after Lessor's receipt of the information specified above, deliver written notice to Tenant which shall (i) indicate whether Lessor give or withhold consent to the proposed Transfer, and (ii) if Lessor withhold consent to the proposed Transfer, setting forth a detailed explanation of Lessor's grounds for doing so. If Lessor consents to a proposed Transfer, then Tenant may thereafter effectuate such Transfer to the proposed transferee based upon the specific terms of the Lessor's approval and after execution of a consent to assignment by Lessor in a form approved by the Lessor; provided, however, that the provisions of this Section 10.4 shall not apply to any Transfer to a Foreclosure Transferee. 10.5 Liability of Transferors/Transferees For Lease Obligations. In the case of an assignment, each Permitted Transferee and any other assignees or transferees of this Lease shall assume in writing all of Tenant's obligations thereafter arising under this Lease. All assignees or transferees of any interest in this Lease or the Premises or Improvements (whether or not directly liable on this Lease) shall be subject to the terms, conditions, covenants, restrictions and reservations of this Lease. The transferor may be released from all liability under this Lease only if the Permitted Transferee or other transferee agrees in writing to assume all of transferor's obligations and liabilities and provides to Lessor evidence of sufficient and adequate assets, including any required insurance policies, subject to approval by Lessor, which approval shall not be unreasonably withheld, that evidence said Permitted Transferee's or other transferees' financial and otherwise competence to assume transferor's obligations and liability (an "Approved Release"). Except for an Approved Release, for all other Transfers, any transferor of any interest in this Lease or the Premises or Improvements shall remain primarily liable for all obligations hereunder and shall be subject to the terms, conditions, covenants, restrictions and reservations of this Lease. Except for an Approved Release, the Lessor may proceed directly against the transferor in its sole and absolute discretion, with no obligation to exhaust its remedies against the transferee. 10.6 Conditions of Certain Lessor Consent. 10.6.1. Lessor may withhold consent to a Transfer (excluding Excluded Transfers which shall not require Lessor consent) at its absolute sole discretion if any of the following conditions exist: (a) An Event of Default exists under this Lease. (b) The prospective transferee has not agreed in writing to keep, perform, and be bound by all the terms conditions, covenants, restrictions and reservations of this Lease. (c) In the case of an assignment, the prospective transferee has not agreed in writing to assume all of transferor's obligations and liabilities. (d) The construction of the Initial Improvements has not been completed. Page 127 75A-74 (e) Any construction required of Tenant as a condition of this Lease has not been completed. (f) All the material terms, covenants, and conditions of the Transfer that are relevant to the Lessor's approval of the Transfer have not been disclosed in writing to the Lessor. 10.7 Transfer of Mortgages of Lessor's Interest. Notwithstanding anything to the contrary set forth in this Ground Lease, unless required by statute, court order or operation of law, Lessor shall not transfer, assign, pledge or hypothecate its fee interest in the Premises (other than to entities under common control with Lessor or other governmental entities under applicable law) without the prior written consent of Tenant. Any and all mortgages or liens placed or suffered by the Lessor encumbering the Lessor's fee interest in the Premises shall be expressly subject and subordinate to this Lease, to all obligations of Lessor hereunder, to all of the rights, titles, interests, and estates of the Tenant created or arising hereunder, to each New Lease and to each Leasehold Mortgage. Furthermore, any Person succeeding to the Lessor's fee interest as a consequence of any conveyance, foreclosure or other transfer shall succeed to all of the obligations of the Lessor hereunder. ARTICLE XI DEFAULT AND 11.1 Event of Default. Each of the following events shall constitute an "Event of Default" by Tenant: 11.1.1. Failure to Pay. Tenant's failure or omission to pay any Rent or other sum payable hereunder on or before the date due where such failure shall continue for a period of five (5) days after written notice thereof from Lessor to Tenant; provided, however, that any such notice shall be in lieu of, and not in addition to, any notice required under California Code of Civil Procedure §1161 etseq. 11.1.2. Failure to Perform. The failure or inability by Tenant to observe or perform any of its obligations under this Lease (other than those specified in Sections 11.1.1, 11.1.3, 11.1.6, or 11.1.8 herein, which have their own notice and cure periods), where such failure shall continue for a period of thirty (30) days after written notice thereof from Lessor to Tenant or past any such longer period as reasonably agreed upon by the Tenant, Lessor in writing as may be necessary for completion of its cure; provided, however, that any such notice by Lessor shall be in lieu of, and not in addition to, any notice required under California Code of Civil Procedure Section 1161 et. seq.; provided, further, that if the nature of such failure is such that it can be cured by Tenant but that more than thirty (30) days are reasonably required for its cure (for any reason other than financial inability), then Tenant shall not be deemed to be in default if Tenant shall commence such cure within said thirty (30) days, and thereafter diligently pursues such cure to completion. 11.1.3. Abandonment. The abandonment (as defined in California Civil Code Section 1951.3) or vacation of the Premises by Tenant for a period of thirty (30) days or more. 11.1.4. Assignments. Page 128 75A-75 (a) The making by Tenant of any assignment of its leasehold estate under this Lease without Lessor's consent, as set forth in Article X; (b) A case is commenced by or against Tenant under Chapters 7, 11 or 13 of the Bankruptcy Code, Title 11 of the United States Code as now in force or hereafter amended and if so commenced against Tenant, the same is not dismissed within ninety (90) days of such commencement; (c) the appointment of a trustee or receiver to take possession of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Lease, where such seizure is not discharged within sixty (60) days; or (d) Tenant's convening of a meeting of its creditors or any class thereof for the purpose of effecting a moratorium upon or composition of its debts. In the event of any such default, neither this Lease nor any interests of Tenant in and to the Premises shall become an asset in any of such proceedings. 11.1.5. Termination of and Failure to Reinstate Insurance Coverage. Termination of Tenant's insurance coverage and lack of reinstatement within ten (10) business days after notice from Lessor of such termination. 11.1.6. Failure to Provide Evidence of Insurance. Tenant's failure to provide Lessor with a valid and adequate certificate of insurance and endorsements, or binder, at any time during the Term of the Lease, within the time period required under Article VHL 11.1.7. Lessor's Consent and Approval of Transfer. Occupancy of the Premises by a prospective transferee, sublessee, or assignee which requires Lessor's consent or approval, before Lessor's written consent and approval of a Transfer is obtained as required in Section 10.1. 11.2 Lessor's Remedies. If an Event of Default occurs, Lessor shall have the following remedies in addition to all rights and remedies provided by law or equity to which Lessor may resort cumulatively or in the alternative: 11.2.1. Termination of Lease. Lessor shall have the right to terminate this Lease and all rights of Tenant hereunder including Tenant's right to possession of the Premises. In the event that Lessor shall elect to so terminate this Lease then Lessor may recover from Tenant: (a) The worth at the time of award of the unpaid Rent and other charges, which had been earned as of the date of the termination hereof; plus (b) Any other amount necessary to compensate Lessor for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, including, but not limited to, the cost of recovering possession of the Premises, expenses of reletting, including necessary repair, renovation and alteration of the Premises, reasonable attorneys' fees, expert witness costs; plus Page 129 75A-76 (c) Any other amount which Lessor may by law hereafter be permitted to recover from Tenant to compensate Lessor for the detriment caused by Tenant's default as permitted under applicable California law. 11.2.2. Continue Lease in Effect. Lessor may continue this Lease in effect without terminating Tenant's right to possession and to enforce all of Lessor's rights and remedies under this Lease, at law or in equity, including the right to recover the Rent as it becomes due under this Lease; provided, however, that Lessor may at any time thereafter elect to terminate this Lease for the underlying Event(s) of Default by notifying Tenant in writing that Tenant's right to possession of the Premises has been terminated. 11.2.3. Removal of Personal Property Following Termination of Lease. Lessor shall have the right, following a termination of this Lease and Tenant's rights of possession of the Premises under Section 11.2.1 above, to re-enter the Premises and, subject to applicable law, to remove Tenant's personal property from the Premises. Such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Tenant, or disposed of without such storage, in accordance with applicable California law. 11.3 Lessor's Right to Cure Tenant Defaults. If Tenant shall have failed to cure, after expiration of the applicable time for curing, a particular default under this Lease, Lessor may at their election, but is not obligated to, make any payment required of Tenant under this Lease or perform or comply with any term, agreement or condition imposed on Tenant hereunder, and the amount so paid plus the reasonable cost of any such performance or compliance, plus interest on such sum at the Interest Rate from the date of payment, performance or compliance until reimbursed shall be deemed to be payable by Tenant on Lessor's demand. Tenant's failure to reimburse the Lessor within 30 days of Lessor's demand shall constitute an Event of Default under this Lease. No such payment, performance or compliance shall constitute a waiver of default or of any remedy for default, or render Lessor liable for any loss or damage resulting from the same. 11.4 Lessor's Default. Lessor shall not be considered to be in default under this Lease unless Tenant has given Lessor written notice specifying the default, and either (i) as to monetary defaults, Lessor have failed to cure the same within ten (10) business days after written notice from Tenant, or (ii) as to nonmonetary defaults, Lessor have failed to cure the same within thirty (30) days after written notice from Tenant, or if the nature of Lessor's nonmonetary default is such that more than thirty (30) days are reasonably required for its cure, then such thirty (30) day period shall be extended automatically so long as Lessor commences a cure within such thirty (30) day period and thereafter diligently pursues such cure to completion. Tenant shall have no right to offset or abate alleged amounts owing by Lessor under this Lease against any amounts owing by Tenant under this Lease. Additionally, Tenant's sole remedy for any monetary default shall be towards the Lessor's interest in the property and not to any other assets. Any and all claims or actions accruing hereunder shall be absolutely barred unless such action is commenced within six (6) months of the event or action giving rise to the default. 11.5 Remedies Cumulative. All rights and remedies of Lessor contained in this Lease shall be construed and held to be cumulative, and no one of them shall be exclusive of the other, and Lessor shall have the right to pursue any one or all of such remedies or any other remedy or relief which may be provided by law, whether or not stated in this Lease. Page130 75A-77 11.6 Waiver by Lessor. No delay or omission of Lessor to exercise any right or remedy shall be construed as a waiver of such right or remedy or any default by Tenant hereunder. The acceptance by Lessor of Rent or any other sums hereunder shall not be (a) a waiver of any preceding breach or default by Tenant of any provision thereof, other than the failure of Tenant to pay the particular rent or sum accepted, regardless of Lessor's knowledge of such preceding breach or default at the time of acceptance of such rent or sum, or (b) waiver of Lessor's right to exercise any remedy available to Lessor by virtue of such breach or default. No act or thing done by Lessor's agents during the term of this Lease shall be deemed an acceptance of a surrender of the Premises, and no agreement to accept a surrender shall be valid unless in writing and signed by Lessor. 11.7 Interest. Any installment or Rent due under this Lease or any other sums not paid to Lessor when due (other than interest) shall bear interest at the Interest Rate from the date such payment is due until paid, provided, however, that the payment of such interest shall not excuse or cure the default. 11.8 Conditions Deemed Reasonable. Tenant acknowledges that each of the conditions to a Transfer, and the rights of Lessor set forth in this Article X in the event of a Transfer is a reasonable restriction for the purposes of California Civil Code Section 1951.4. 11.9 Waiver by Tenant. Tenant's waiver of any breach by Lessor of any term, covenant or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition herein contained. 11.10 Tenant Covenants and Agreements. All covenants and agreements to be performed by Tenant under any of the terms of this Lease shall be performed by Tenant at Tenant's sole cost and expenses and without any abatement of Rent. If Tenant shall fail to pay any sum of money, other than Rent required to be paid by it hereunder, or shall fail to perform any other act on its part to be performed hereunder, or to provide any insurance or evidence of insurance to be provided by Tenant within the time period required under this Lease, then in addition to any other remedies provided herein, Lessor may, but shall not be obligated to do so, and without waiving or releasing Tenant from any obligations of Tenant, make any such payment or perform any such act on Tenant's part to be made or performed as provided in this Lease or to provide such insurance. Any payment or performance of any act or the provision of any such insurance by Lessor on Tenant's behalf shall not give rise to any responsibility of Lessor to continue making the same or similar payments or performing the same or similar acts. All costs, expenses, and other sums incurred or paid by Lessor in connection therewith, together with interest at the Interest Rate from the date incurred or paid by Lessor, shall be paid by Tenant within thirty (30) days of receipt of a demand and invoice from Lessor, and Tenant's failure to pay the Lessor, as stated herein, shall constitute an Event of Default under this Lease. ARTICLE XH HOLDING OVER 12.1 If Tenant holds over after the expiration or earlier termination of the Term hereof without the express written consent of Lessor, Tenant shall become a Tenant at sufferance only, at Page131 75A-78 a monthly rental rate of Ten Thousand Dollars ($10,000) ("Hold Over Rent"), increased annually commencing with commencement of the hold over period by an amount equal to three percent (3%) for each year of the Term. If Tenant fails to surrender the Premises and the Improvements as stated herein, and Lessor shall take legal action to cause Tenant's eviction from the Premises and is successful in such action, Tenant shall be responsible for all costs and expenses, including reasonable attorney's fees and costs, incurred by Lessor in connection with such eviction action; Tenant shall also indemnify and hold Lessor harmless from all loss or liability or reasonable attorney's fees and costs, including any claim made by any succeeding tenant, incurred by Lessor founded on or resulting from such failure to surrender. ARTICLE X1H ESTOPPEL CERTIFICATES 13.1 At any time and from time to time, within ten (10) business days after written request by either Lessor or Tenant (the "requesting party"), the other Party (the "responding party") shall execute, acknowledge and deliver an estoppel certificate addressed to the requesting party, and/or to such other beneficiary (as described below) as the requesting party shall request, certifying (i) that this Lease is in full force and effect, (ii) that this Lease is unmodified, or, if there have been modifications, identifying the same, (iii) the dates to which Rent has been paid in advance, (iv) that, to the actual knowledge of the responding party, there are no then existing and uncured defaults under the Lease by either Lessor or Tenant, or, if any such defaults are known, identifying the same, and (v) any other factual matters (which shall be limited to the actual knowledge of the responding party) as may be reasonably requested by the requesting party. Such certificate may designate as the beneficiary thereof the requesting party, and/or any third party having a reasonable need for such a certificate (such as, but not limited to, a prospective purchaser, transferee or lender) and any such certificate may be relied upon by the Parties. ARTICLE XIV FORCE MAJEURE 14.1 Unless otherwise specifically provided herein, the period for performance of any nonmonetary obligation by either Party shall be extended by the period of any delay in performance caused by Acts of God, strikes, boycotts, lock -outs, inability to procure materials not related to the price thereof, failure of electric power, riots, civil unrest, acts of terrorism, insurrection, war, declaration of a state or national emergency, weather that could not have reasonably been anticipated, changes in the Laws which would prevent the Premise from being operated in accordance with this Lease, or other reasons beyond the reasonable control of Lessor, Tenant, or their respective agents or representatives (collectively, "Force Majeure Events"). In no event, however, shall Force Majeure Events include the financial inability of a Party to this Lease to pay or perform its obligations hereunder. Further, nothing herein shall extend the time for performance of any monetary obligation owing under this Lease (including Tenant's obligation to pay Rent owing hereunder). ARTICLE XV Page132 75A-79 RECORDS AND ACCOUNTS 15.1 Financial Statements. Upon request, within one hundred eighty (180) days after the end of each accounting year, Tenant shall at its own expense submit to Lessor a balance sheet and income statement prepared by a Certified Public Accountant ("CPA") who is a member of the American Institute of Certified Public Accountants ("AICPA") and the California Society of CPAs, reflecting business transacted on or from the Premises during the preceding accounting year. The CPA must attest that the balance sheet and income statement submitted are an accurate representation of Tenant's records as reported to the United States of America for income tax purposes. Tenant shall provide Lessor with copies of any of CPA's management letters prepared in conjunction with their audits of Tenant's operations from the Premises. Copies of management letters shall be provided directly to Lessor by the CPA at the same time Tenant's copy is provided to Tenant. In the event that when such financial statements are submitted, the Tenant has a budget for the following accounting year, Tenant, at the same time, shall also provide Lessor with such budget. 15.1.1. Tenant acknowledges its understanding that any and all of the Financial Statements submitted to the Lessor pursuant to this Lease become Public Records and may be subject to public inspection and copying pursuant to §§ 6250 et. seq. of the California Government Code. 15.1.2. All Tenant's books of account and records and supporting source documents related to this Lease or to business operations conducted within or from the Premises shall be kept and made available at one location within the limits of the county unless an alternative location is approved in writing by the Lessor. Lessor shall, through its duly authorized agents or representatives, have the right to examine and audit said books of account and records and supporting source documents at any and all reasonable times for the purpose of determining the accuracy thereof in connection with such Sections of this Lease as the Parties mutually and reasonably agree the audit is relevant thereto. 15.2 Reports. In the event that the Tenant commissions, requests or is required to produce any reports related to the physical condition of the Improvements or Premises, Tenant shall submit copies of such reports to Lessor along with the financial statements required above in Section 15.1. ARTICLE XVI OPERATIONAL OBLIGATIONS OF TENANT 16.1 Standards of Operation. 16.1.1. Tenant shall operate the Premises in a manner reasonably comparable to other comparable facilities or businesses within the County of Orange. Tenant shall at all times during the Term provide adequate security measures to reasonably protect persons and property on the Premises. Page133 75A-80 16.1.2. The ultimate purpose of this Lease is to permit the construction and operation of a micro -farm, in accordance with Section 4.1.1. Accordingly, Tenant covenants and agrees to operate said Premises fully and continuously to accomplish said purposes and not to abandon or vacate the Premises at any time. 16.1.3. The facilities on the Premises shall be operated during normal business hours, subject to any temporary interruptions in operations or closures due to ordinary maintenance and repair and any Force Majeure Event, defined in Article XIV above. 16.2 Protection of Environment. Tenant shall take all reasonable measures available to: 16.2.1. Avoid any pollution of the atmosphere or littering of land or water caused by or originating in, on, or about Tenant's facilities. 16.2.2. Maintain a reasonable noise level on the Premises so that persons in the general neighborhood will be able to comfortably enjoy the other facilities and amenities in the area. 16.2.3. Prevent the light fixtures of the Premises from emitting light that could negatively affect the operation of cars or airplanes in the area. 16.2.4. Prevent all pollutants from Tenant's operations on the Premises from being discharged, including petroleum products of any nature, except as may be permitted in accordance with any applicable permits or as permitted by applicable Law. Tenant and all of Tenant's agents, employees and contractors shall conduct operations under this Lease so as to ensure that pollutants do not enter the municipal storm drain system (including but not limited to curbs and gutters that are part of the street systems), or directly impact receiving waters (including but not limited to rivers, creeks, streams, estuaries, lakes, harbors, bays and the ocean), except as may be permitted by any applicable permits or as permitted by applicable law. 16.2.5. The Lessor may enter the Premises in accordance with Section 4.5 and/or request Tenant records at any reasonable time to assure that activities conducted on the Premises comply with the requirements of this Section. 16.3 On -Site Manager. Tenant shall employ a competent manager who shall be responsible for the day-to-day operation and level of maintenance, cleanliness, and general order for the Premises. Such person shall be vested with the authority of Tenant with respect to the supervision over the operation and maintenance of the Premises, including the authority to enforce compliance by Tenant's agents, employees, concessionaires, or licensees with the terms and conditions of this Lease and any and all rules and regulations adopted hereunder. Tenant shall notify Lessor in writing of the name of the Manager currently so employed. 16.4 Policies and Procedures to be Established by Tenant. Prior to the completion of construction, Tenant shall submit to Lessor proposed policies and procedures pertinent to the operation of the micro -farm and manner of providing the uses required by this Lease ("Policies and Procedures"). ARTICLE XVH Page134 75A-81 RESERVED ARTICLE XVIII BEST MANAGEMENT PRACTICES 18.1 Tenant and all of Tenant's, subtenant, agents, employees and contractors shall conduct operations under this Lease so as to assure that pollutants do not enter municipal storm drain systems, in violation of applicable Laws, which systems are comprised of, but are not limited to curbs and gutters that are part of the street systems ("Stormwater Drainage System"), and to ensure that pollutants do not directly impact "Receiving Waters" (as used herein, Receiving Waters include, but are not limited to, rivers, creeks, streams, estuaries, lakes, harbors, bays and oceans). 18.2 The Santa Ana and San Diego Regional Water Quality Control Boards have issued National Pollutant Discharge Elimination System ("NPDES") permits ("Stormwater Permits") to the County of Orange, and to the Orange County Flood Control District ("District") and cities within Orange County, as co-permittees (hereinafter collectively referred to as "NPDES Parties") which regulate the discharge of urban runoff from areas within the County of Orange, including the Premises leased under this Lease. The NPDES Parties have enacted water quality ordinances that prohibit conditions and activities that may result in polluted runoff being discharged into the Stormwater Drainage System. 18.3 To assure compliance with the Stormwater Permits and water quality ordinances, the NPDES Parties have developed a Drainage Area Management Plan ("DAMP") which includes a Local Implementation Plan ("LIP") for each jurisdiction that contains Best Management Practices (`BMPs") that parties using properties within Orange County must adhere to. As used herein, a BMP is defined as a technique, measure, or structural control that is used for a given set of conditions to manage the quantity and improve the quality of stormwater runoff in a cost effective manner. These BMPs are found within the District and/or County's LIP in the form of Model Maintenance Procedures and BMP Fact Sheets (the Model Maintenance Procedures and BMP Fact Sheets contained in the DAMP/LIP shall be referred to hereinafter collectively as "BMP Fact Sheets") and contain pollution prevention and source control techniques to eliminate non- stormwater discharges and minimize the impact of pollutants on stormwater runoff. 18.4 BMP Fact Sheets that apply to uses authorized under this Lease include the BMP Fact Sheets that are attached hereto as Exhibit C. These BMP Fact Sheets may be modified during the term of the Lease; and the Lessor shall provide Tenant with any such modified BMP Fact Sheets. Tenant, its agents, contractors, representatives and employees and all persons authorized by Tenant to conduct activities on the Premises shall, throughout the term of this Lease, comply with the BMP Fact Sheets as they exist now or are modified, and shall comply with all other requirements of the Stormwater Permits, as they exist at the time this Lease commences or as the Stormwater Permits may be modified. Tenant agrees to maintain current copies of the BMP Fact Sheets on the Premises throughout the term of this Lease. The BMPs applicable to uses authorized under this Lease must be performed as described within all applicable BMP Fact Sheets. Page135 75A-82 18.5 Tenant may propose alternative BMPs that meet or exceed the pollution prevention performance of the BMP Fact Sheets. Any such alternative BMPs shall be submitted to the Lessor for review and approval prior to implementation. 18.6 Lessor may enter the Premises in accordance with Section 4.5 and/or request Tenant's records at any reasonable time during normal business hours to assure that activities conducted on the Premises comply with the requirements of this Section. ARTICLE XIX GENERAL CONDITIONS & MISCELLANEOUS PROVISIONS 19.1 Signs. Tenant agrees not to construct, maintain, or allow any signs, banners, flags, etc., upon the Premises except (a) as approved in writing in advance by Lessor, which approval may be withheld in the sole and absolute discretion of the Lessor, or (b) required by any of Tenant's lenders, provided that any such signage is in compliance with all applicable Laws. Tenant further agrees not to construct, maintain, or allow billboards or outdoor advertising signs upon the Premises, except as approved in writing by Lessor. 19.2 Nondiscrimination. Tenant agrees not to discriminate against any person or class of persons by reason of sex, age (except as permitted by law), race, color, creed, physical handicap, or national origin in employment practices and in the activities conducted pursuant to this Lease. 19.3 Taxes and Assessments. Pursuant to California Revenue and Taxation Code Section 107.6, Tenant is specifically informed that this Lease may create a possessory interest which is subject to the payment of taxes levied on such interest. It is understood and agreed that all taxes and assessments (including but not limited to said possessory interest tax) which become due and payable upon the Premises or upon fixtures, equipment, or other property installed or constructed thereon, shall be the full responsibility of Tenant, and Tenant shall cause said taxes and assessments to be paid promptly. 19.4 Quitclaim of Interest upon Termination. Upon termination of this Lease for any reason whatsoever in accordance with the terms of the Lease, Tenant shall execute, acknowledge, and deliver to Lessor, within ten (10) business days, a good and sufficient deed, in a form as approved by the Lessor, whereby all right, title, and interest of Tenant in the Premises is quitclaimed back to Lessor ("Quitclaim Deed"). The Quitclaim Deed shall then be recorded by Lessor to remove any cloud on title created by this Lease. In the event that the Tenant fails to provide such Quitclaim Deed within ten (10) additional business days after written demand by Lessor, the Parties agree that the Lessor will be damaged and entitled to compensation for those damages. Such actual damages will, however, be extremely difficult to ascertain. Therefore, if the Tenant does not provide the required Quitclaim Deed after such notice and cure period, in addition to any other remedy provided by law or equity, the Tenant shall pay the Lessor $1,000 per day for every day that passes until a Quitclaim Deed is delivered, which amount shall be deemed to constitute a reasonable estimate of Lessor's damages and not a penalty. Such amount shall become due and payable by Tenant to Lessor for each calendar day that passes beyond the cure period. Notwithstanding the foregoing, if the Tenant has disputed the termination of the Lease Page136 75A-83 by Lessor, upon a final determination by a court of competent jurisdiction that the Lease has not been terminated, Tenant shall not be subject to payment of the foregoing damages. 19.5 Public Records. Tenant acknowledges that any written information submitted to and/or obtained by Lessor from Tenant or any other person or entity having to do with or related to this Lease and/or the Premises, either pursuant to this Lease or otherwise, is a "public record" open to inspection and copying by the public pursuant to the California Public Records Act (Government Code §6250, et seq.) ("CPRA") as now in force or hereafter amended, or any Law in substitution thereof, or otherwise made available to the public, unless such information is exempt from disclosure pursuant to the applicable sections of CPRA. In the event that a CPRA request is made for any financial statements and records (not including Gross Receipts Statements) and the Lessor determines that the records must be turned over, the Lessor will give Tenant ten (10) days' written notice prior to turning over such records so that Tenant can take any necessary action, including, but not limited to, injunctive relief, to prevent Lessor from turning over such financial statements and records. 19.6 Attorney's Fees. In any action or proceeding brought to enforce or interpret any provision of this Lease, or where any provision hereof is validly asserted as a defense, each Party shall bear its own attorneys' fees and costs. 19.7 Payment Card Compliance. Should Tenant conduct credit/debit card transactions in conjunction with Tenant's business with the Lessor, on behalf of the Lessor, or as part of the business that Tenant conducts on the Premises, Tenant covenants and warrants that it will during the course of such activities be Payment Card Industry Data Security Standard ("PCIIDSS") and Payment Application Data Security Standard ("PA/DSS") compliant and will remain compliant during the entire duration of its conduct of such activities. Tenant agrees to immediately notify Lessor in the event Tenant should ever become non -compliant at a time when compliance is required hereunder, and will take all necessary steps to return to compliance and shall be compliant within ten (10) days of the commencement of any such interruption. Upon demand by Lessor, Tenant shall provide to Lessor written certification of Tenant's PCUDSS and/or PA/DSS compliance. 19.8 Right to Work and Minimum Wage Laws. 19.8.1. Pursuant to the United States of America Fair Labor Standard Act of 1938, as amended, and State of California Labor Code, Section 1178.5, Tenant shall pay no less than the greater of the Federal or California Minimum Wage to all its employees that directly or indirectly service the Premises, in any manner whatsoever. Tenant shall require and verify that all its contractors or other persons servicing the Premises on behalf of the Tenant also pay their employees no less than the greater of the Federal or California Minimum Wage. 19.8.2. Tenant shall comply and verify that its general contractor complies with all other Federal and State of California laws for minimum wage, overtime pay, record keeping, and child labor standards pursuant to the servicing of the Premises or terms and conditions of this Lease. Page137 75A-84 19.9 Declaration of Knowledge by Tenant. Tenant warrants that Tenant has carefully examined this Lease and by investigation of the site and of all matters relating to the Lease arrangements has fully informed itself as to all existing conditions and limitations affecting the construction of the Lease improvements and business practices required in the operation and management of the uses contemplated hereunder. 19.10 Governing Law. This Lease shall be governed by and construed in accordance with the laws of the State of California and the City of Santa Ana. 19.11 Venue. The Parties hereto agree that this Lease has been negotiated and executed in the State of California and shall be governed by and construed under the laws of California. In the event of any legal action to enforce or interpret this Lease, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California, and the Parties hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394. Furthermore, the Parties hereto specifically agree to waive any and all rights to request that an action be transferred for trial to another county. 19.12 Headings and Titles. The captions of the Articles or Sections of this Lease are only to assist the Parties in reading this Lease and shall have no effect upon the construction or interpretation of any part hereof. 19.13 Interpretation. Whenever required by the context of this Lease, the singular shall include the plural and the plural shall include the singular. The masculine, feminine and neuter genders shall each include the other. In any provision relating to the conduct, acts or omissions of Tenant, the term "Tenant" shall include Tenant's agents, employees, contractors, invitees, successors or others using the Premises with Tenant's expressed or implied permission. In any provision relating to the conduct, acts or omissions of Lessor, the term "Lessor" shall include Lessor's agents, employees, contractors, invitees, successors or others using the Premises with Lessor's expressed or implied permission. 19.14 Ambiguities. Each Party hereto has reviewed this Lease with legal counsel, and has revised (or requested revisions of) this Lease based on the advice of counsel, and therefore any rules of construction requiring that ambiguities are to be resolved against a particular Party shall not be applicable in the construction and interpretation of this Lease or any exhibits hereto. 19.15 Successors and Assigns. Except as otherwise specifically provided in this Lease, all of the covenants, conditions and provisions of this Lease shall be binding upon and shall inure to the benefit of the Parties hereto and their respective heirs, personal representatives, successors and assigns. 19.16 Time is of the Essence. Time is of the essence with respect to the performance of every provision of this Lease in which time of performance is a factor. 19.17 Severability. If any term or provision of this Lease is held invalid or unenforceable to any extent under any applicable law by a court of competent jurisdiction, the remainder of this Lease shall not be affected thereby, and each remaining term and provision of this Lease shall be valid and enforceable to the fullest extent permitted by law. Page138 75A-85 19.18 Integration. This Lease, along with any exhibits, attachments or other documents affixed hereto or referred to herein and related City permits, constitute the entire agreement between Lessor and Tenant relative to the leasing of the Premises. This Lease and such exhibits, attachments and other documents may be amended or revoked only by an instrument in writing signed by Lessor and Tenant. 19.19 Notices, Demands and Communications Between the Parties. 19.19.1 Notices. Any and all Notices submitted by either Party to the other Party pursuant to or as required by this Agreement shall be proper, if in writing and transmitted to the principal office of the Lessor or the Tenant, as applicable, set forth in Section 19.19.2, by one or more of the following methods: (i) messenger for immediate Personal delivery, (ii) a nationally recognized overnight (one-night) delivery service (i.e., Federal Express, United Parcel Service, etc.) or (iii) registered or certified United States Mail, postage prepaid, return receipt requested. Such Notices may be sent in the same manner to such other addresses as either Party may designate from time to time, by Notice. Any Notice shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that it is delivered by personal delivery, on the date of delivery by a nationally recognized overnight courier service (or when delivery has been attempted twice, as evidenced by the written report of the courier service) or four (4) calendar days after it is deposited with the United States Postal Service for delivery, as provided in this Section 19.19.1. Rejection, other refusal to accept or the inability to deliver a Notice because of a changed address of which no Notice was given or other action by a Person to whom Notice is sent, shall be deemed receipt of the Notice. 19.19.2 Addresses. The following are the authorized addresses for the submission of Notices to the Parties, as of the Effective Date: To the Tenant: THRIVE Santa Ana, Inc. P.O. Box 1935 Santa Ana, CA 92702 UCI School of Law Community Economic Development Clinic P.O. Box 5479 Irvine, CA 92616-5479 Public Law Center c/o Housing and Homelessness Prevention Unit 601 Civic Center Drive West Santa Ana, CA 92701 Page l39 75A-86 To the Lessor: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, CA 92702 With courtesy copy to City of Santa Ana City Attorney's Office 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, CA 92702 19.20 Dispositions of Abandoned Property. If Tenant abandons or quits the Premises or is dispossessed thereof by process of law or otherwise, title to any personal property belonging to and left on the Premises thirty (30) days after such event shall, at Lessor's option, be deemed to have been transferred to Lessor. Lessor shall have the right to remove and to dispose of such property at Tenant's cost, including the cost of labor, materials, equipment and an administrative fee equal to fifteen percent (15%) of the sum of such costs without liability therefor to Tenant or to any person claiming under Tenant, and shall have no need to account therefor. At Lessor's option, Lessor may provide Tenant with an invoice for such costs, which invoice Tenant agrees to pay within fifteen (15) days of receipt. 19.21 No Partnership. This Lease shall not be construed to constitute any form of partnership or joint venture between Lessor and Tenant. Lessor and Tenant mutually acknowledge that no business or financial relationship exists between them other than as Lessor and Tenant, and that Lessor is not responsible in any way for the debts of Tenant or any other Party. 19.22 Authorization. Lessor and Tenant (each, a "signing party") each represents and warrants to the other that the person or persons signing this Lease on behalf of the signing party has full authority to do so and that this Lease binds the signing party. Concurrently with the execution of this Lease, the Tenant shall deliver to the Lessor a certified copy of a resolution of the signing party's board of directors or other governing board authorizing the execution of this Lease by the signing party. 19.23 Recording. This Lease itself shall not be recorded, but in the event that the Tenant encumbers the leasehold as set forth in a memorandum hereof may be recorded in the form of Exhibit D attached hereto ("Memorandum"). The Memorandum may be executed concurrently with this Lease and thereafter recorded in the Official Records of the County Recorder on the Effective Date of this Lease has occurred. Tenant shall be responsible for the payment of all charges imposed in connection with the recordation of the Memorandum, including, without limitation, any documentary transfer tax imposed in connection with this transaction and all recording fees and charges. Page 140 75A-87 19.24 Exhibits. This Lease contains the following exhibits, schedules and addenda, each of which is attached to this Lease and incorporated herein in its entirety by this reference: Exhibit A: Legal Description of the Premises Exhibit B: Project Description Exhibit C: Best Management Practices Fact Sheets Exhibit D: Form of Memorandum of Lease 19.25 Consent/Duty to Act Reasonably. Except as otherwise expressly provided herein, whenever this Lease grants Lessor and/or Tenant the right to take any action, grant any approval or consent, or exercise any discretion, Lessor and/or Tenant shall act reasonably and in good faith and take no action which might result in the frustration of the other Party's reasonable expectations concerning the benefits to be enjoyed under this Lease. 19.26 Counterparts. For the convenience of the Parties to this Lease, this Lease may be executed in several original counterparts, each of which shall together constitute but one and the same agreement. Original executed pages may be assembled together into one fully executed document. 19.27. No Merger. The interests created by this Lease shall not be extinguished by merger of any or all of the ownership interests the Premises or the Improvements in one person or entity. {Signatures on followingpage) Page 141 75A-88 IN WITNESS WHEREOF, the Parties have executed this Ground Lease on the dates indicated next to each of the signatures of their authorized representatives, as appear below: ATTEST: DAISY GOMEZ Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney Ryan U. Hodge Assistant City Attorney RECOMMENDED FOR APPROVAL STEVEN A. MENDOZA Executive Director Community Development Agency CITY OF SANTA ANA KRISTINE RIDGE City Manager TENANT By: CESAR COVARRUBIAS Treasurer, THRIVE Santa Ana, Inc. Dated: /. SANDRA ORTEGA Secretary, THRIVE Santa Ana, Inc. Dated: Page 142 75A-89 EXHIBIT "A" TO GROUND LEASE PROPERTY LEGAL DESCRIPTION 1901 West Walnut Street ("Property") is situated in the State of California, County of Orange, and the City of Santa Ana. The Property has a lot size of 16,558 square feet (.38 acre) as shown on a Map recorded as parcel 8 in Book 7 on page 332 of Assessor Parcel Maps of Orange County, California. The Property is bounded on its easterly edge by South Daisy Avenue and its southern edge by West Walnut Street. The following is the Property Legal Description: P BK 54 PG 50 PAR 3 Page 14> 75A-90 EXHIBIT `B" TO GROUND LEASE Tenant proposes a micro -farm use for the Premises. Operation of a community micro - farm and related activities, including, but not limited to, production and distribution of fresh vegetables, flowers, other ornamentals, and fruit, also hosting weekly open-air markets and community activities that promote health. The site will include raised garden beds, a work area, produce puck -up counter, and lunch tables. An on -site parking lot will be used on weekends as an open-air market area. The micro -farm will host community workshops and events in line with the mission of THRIVE Santa Ana. Page 144 75A-91 EXHIBIT "C" TO GROUND LEASE BEST MANAGEMENT PRACTICES (`BMWs" Fact Sheets) Best Management Practices can be found at: http://www.ocwatersheds.com/documents/bmp which website may change from time to time. BMPs apply to the TENANT's defined Premises and BMPs also apply to the TENANT's Contractor therefore TENANT shall cause Contractor to be responsible for implementing and complying with all BMP Fact Sheet requirements that apply to construction activity with respect to the Improvements, and also including, without limiting the generality of the foregoing, site preparation, landscaping, installation of utilities, street construction or improvement and grading or filling in or on the Premises. TENANT is to be aware that the BMP clause within this Lease, along with all related BMP Exhibits, may be revised, and may incorporate more than what is initially being presented in this Lease. Suggested BMPs Fact Sheets may include, but may not be limited to, the following list shown below and can be found at: http://www.ocwatersheds.com/documents/bmp/industrialcommercialbusinessesactivities (which website may change from time to time): IC3 Building Maintenance IC4 Carpet Cleaning IC6 Contaminated or Erodible Surface Areas IC7 Landscape Maintenance IC9 Outdoor Drainage from Indoor Areas IC10 Outdoor Loading/Unloading of Materials IC12 Outdoor Storage of Raw Materials, Products, and Containers IC14 Painting, Finishing, and Coatings of Vehicles, Boats, Buildings, and Equipment IC15 Parking & Storage Area Maintenance IC17 Spill Prevention and Cleanup IC21 Waste Handling and Disposal IC22 Eating and Drinking Establishments IC23 Fire Sprinkler Testing/Maintenance IC24 Wastewater Disposal Guidelines Page 145 75A-92 EXHIBIT "D" TO GROUND LEASE FORM OF MEMORANDUM OF LEASE MEMORANDUM OF LEASE This is a Memorandum of Lease ("Memorandum") made and entered into as of this day of 120 by and between the CITY OF SANTA ANA, a California charter city in the County of Orange of the State of California ("Lessor"), and THRIVE Santa Ana, Inc., a 501(c)(3) tax exempt California public benefit corporation ("Tenant'), upon the following terms: 1. Lease. The provisions set forth in a written lease between the parties hereto dated ("Lease"), are hereby incorporated by reference into this Memorandum. 2. Subject Premises. The Premises which are the subject of the Lease are more particularly described as on Exhibit A, attached hereto 3. Effective Date of Lease. The Lease shall be deemed to have commenced on (the "Effective Date") as set forth within the terms of the Lease. 4. Term. The Term of the Lease shall be Ninety -Nine (99) years from the Effective Date as stated in the written Lease. 5. Duplicate Copies of the originals of the Lease are in the possession of the Lessor and Tenant and reference should be made thereto for a more detailed description thereof and for resolution of any questions pertaining thereto. The addresses for Lessor and Tenant are as follows: To the Tenant: THRIVE Santa Ana, Inc. P.O. Box 1935 Santa Ana, CA 92702 UCI School of Law Community Economic Development Clinic P.O. Box 5479 Irvine, CA 92616-5479 Public Law Center c/o Housing and Homelessness Prevention Unit 601 Civic Center Drive West Santa Ana, CA 92701 Page 146 75A-93 To the Lessor: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, CA 92702 With courtesy copy to City of Santa Ana City Attorney's Office 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, CA 92702 6. Purpose. It is expressly understood and agreed by all Parties that the sole purpose of this Memorandum is to give record notice of the Lease; it being distinctly understood and agreed that said Lease constitutes the entire lease and agreement between Lessor and Tenant with respect to the Premises and is hereby incorporated by reference. The Lease contains and sets forth additional rights, terms, conditions, duties, and obligations not enumerated within this instrument which govern the Lease. This Memorandum is for informational purposes only and nothing contained herein may be deemed in any way to modify or vary any of the terms or conditions of the Lease. In the event of any inconsistency between the terms of the Lease and this instrument, the terms of the Lease shall control. The rights and obligations set forth herein shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, representatives, successors, and assigns. {Signatures on followingpage} Page 147 75A-94 IN WITNESS WHEREOF, the Parties hereto have executed this Memorandum pursuant to due authorization on the dates herein acknowledged. ATTEST: DAISY GOMEZ Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney Ryan O. Hodge Assistant City Attorney RECOMMENDED FOR APPROVAL: STEVEN A. MENDOZA Executive Director Community Development Agency CITY OF SANTA ANA KRISTINE RIDGE City Manager TENANT By: CESAR COVARRUBIAS Treasurer, THRIVE Santa Ana, Inc. Dated: By: SANDRA ORTEGA Secretary, THRIVE Santa Ana, Inc. Dated: Page 148 75A-95 NOE37A\' OF RESUBMITTAL PREPARED BY CITY FABRICK \. FOR THRIVE SANTA ANA APRIL 18. 2019 SITE PLANS- n W6 DAISY AND WALNUT MICRO -FARM ■BF CITY' Y FABRICK 39 City Fabrick is a nonprofit design studio dedicated to improving communities through public interest design, planning, policy development and civic engagement. CITYFABRICK.ORG EXH I B I T 2 75A-97 1901 W. WALNUT STREET Thrive proposes a microfarm use for the Walnut and Daisy tot (1901 W. Watnut St.) EXHIBIT 2 The microfarm space would be used to grow and distribute fresh vegetables, flowers, other ornamentals, and fruit; to host weekly open-air markets; and to host community activities that promote health. The site will include raised garden beds, a work area, produce pick-up table, and lunch tables. In partnership with a local food cooperative, items will be sold through a Community Supportive Production model, wherein members pay a monthly subscription to receive a box of vegetables and other produce at their home, or available for pickup. M on -site parking lot will be used on weekends as an open-air market area. SITEPLRN REVIEW WALNUT AND DAISY MICR O-TARN 3 75A-98 PROJECT 1901 WEST WALNUT STREET ADDRESS SAWA ANA.CA92703tl301 ASSESSOR 007-332b8 PARCEL LEGAL DESCRIPTION P BLOCK M, PAGE 50, PARCEL3 DESCRIPTION The existing vacant 0.38 acre site WILL be improved a sa commu operated urban farm. Approximatelya third of Me site WILL be Improved with raised planting beds. A collection of repurposed shipping containers WILL provide accessory functions, in strain administration, storage, and on -site sales. An st-grade parking lot WILLprovide nine parking staLLS, covered by sonar panel carports. The overaLL project WILL be constructed in phases as resources are avallable and programming expar'ds. ZONING SUMMARY CURRENTZONING M1[ LIGH T I N DUSTRIALI DISTRICT CURRENT GENERAL PLAN GC[G EN E RAL CO M M E RCIAL] PROPOSED ZONING C2[G EN E RAL CO M M E RCIAL] DISTRICT PROPOSED LAND USE AGRICULTURAL BUILDINGCODES 2016 CALIFORNIA BUILDING CODE M16 CALIFORNIA RESIDENTIAL CODE MM CALIFORNIA MECHANICAL CODE M16 CALIFORNIA ELECTRICAL CODE M16 CALIFORNIA PLUMBING CODE MV5 CALIFORNIAENERGY CODE M16 CALIFORNIAGREEN BUILDING STANDARDS CODE FIRE SPRINKLERS 4 SITE PLAN REVIEW WALNUT AND DAISY MICRO -FARM NONE LOT AREA ------------------- LOTCOVERAGE -------------------- BUILDINGPROGRAM CONSTRUCTIONTYPE OCCUPANCYTYPES ALLOWABLE BUILDING HEIGHT BUILDING HEIGHT ALLOWABLE BUILDINGAREA TOTALBUILDINOAREA FLOORARBARATIO WORKSPACE FARM STAND AQUAPONICS LAB STORAGE STAFFOFFICE RESTROOM TOT" INDOOR PROBRAN AREA PRIMARY OUTDOOR FARM ING AREA EXHIBIT 16,69i Sr PA R K I NG SU M MA RY --------------- MANUFACTURING @20P".0008F 4PS 1'000 SF 9'634' OUTDOORFARMING @1.0psA.0005F SPS --------------- TOTAL REQUIRED PARKING 9P TYPEVB --------------------------------------- B PROVIDED PARKING 4 LEVELS [401 1 LEVEL[10'1 STANDARD PARKING STALLS BPS 9,000 SF VAN ACCESSIBLE PARKING STALL 1PS TOTAL PARKING PROVI DIED 9P5 1,600 SF 0.10 640 SF 320SF 160 SF 320SF 100SF 60 SF IRGGSF 5'000 SF 75A-99 p r� .E� Jim ��-�� t '� FOVRiMMill "a i A�,i,�K p 1 FIRST RROJ Clo a Q ` J *,PARK MYRTLE T On.I sa vtLAWi y'J _._ i °o p�Fye S'1 r h.t NEW SPIRIT MOxi4!17 BAPTIST CMVRCN Q r I wILLTs PROJECT SITE IAE RIurvrtv m u �S s '(. ° i w fie. � y'' �� s�� � � . F i _�` �G". .�i � gib 'p�p'�,.. s _ - �. 4 � � - _ 'u�tlr >s'r.... I � ¢ o _ i�;.,�- �! 'may. �� l � }x �� b s _ a. � v � � `'<�,�,,, tea::. —� .� ,T 0 .-K,. �c. a �_ ti N << :: � _.� �r � L { b ��<W e.. s u��i-i� .a��- _ �S- AERIAL VIEW CASE STUDIES SITEPLAN REVIEW THE ECOLOGY CENTER SAN JUAN CAPISTRANO, CA The Ecology Center is a non-profitorgan nation that takes pride in curating a.parl a des for eryone.The center's headquarters was once an empty lot located in San Juan Capistrano, CA. They transformed an empty into an ecological oasis. Their brief iS that everyone should have access to the tools, knowledge and skills o promote healthy communities and an abundant future r all. They adhieve this by having fun, hands-on activities that teach practical arvino ental solutions at the household and community level. At the enter they have four core -Natives. Grow(growing you own food), water (finding simple soldtion to cut daily water use in half(, eat (building pathways to an ecological food futurel and make (supporting local artisan culture(. EXHIBIT SHILOH FARM PITTSBURGH, PA Shiloh is a model of what is possible in urban agriculture on one city lot Since 2008, Grow Pittsburgh has exch ang ad produ ce for the se of th form erly va ant lot They've converted the lot into a smal urban farm, complete within-ground all beds, herbs, figs, raspberries, antl flowers to draw beneficial insects. Shiloh Farm also has a beehive and ke a flock of Rhode Island Red chicns. The garden's back perimeter is marked by a large solar array, which ferds into the neighboring home. Chemical free growing techniques are applied to grow produce, which primarily supplies the on -site farm stand. The stand 5 open weekly on Thursdays from June through Oct It also cooperates with Frick greenhouseand kitchen gard:s [o serve as site for assistants and apprentices to learn about and try out small wale urban farming techniques for different communities. 75A-103 EXHIBIT 2 THE RIVERBED FARM ANAHEIM,CA The Riverbed is a fuNfunctioning sustainable urban farm and aims to educate, empower, and employ communities through responsible agricultural methods. Managed by renewable farms and worked daily by interns and volunteer community members, they grow the organic vegetables, fish, and eggs year around by applying different services such as aquaponics technique, a highly sustainable method of producing greens and protein by filtering nutrient -rich pond water through raised garden beds. By offering venue rental space, and selling produce locally, they are able to give out hundred of pounds of fresh food away every month for free to under -served families throughoutthe area as well as to help the neighboring commu City understanding ofhow sustainable agtlmlture works. With the workshops and events of different topics like energy consumption, bugs, conserving water, composting, plant care, darn, for chickens, and much more the farm could help resource, etlucate, and feed the communities. WILLIAMS FARM ATHENS, GA Athens land Trust has been devoted to Conserve, empower and sustain communities through responsble and visionary land use. The Williams Fann is an oasis in the city where Athens land Trust staff, community members, and volunteers work together to grow produ re, flowers, and herbs for weekly farmers markets, farm share, and for donations to local food banks and soup kitchens. Their missions are growing and marketing affordable produce to community residents and businesses, umbeing orpoicand sustainable production methods to generate a setf- sustaining income as well as serving as model whereby the Community WILL be able to team about the importance of sustainable fanning, healthy diets, and the value of smart and e pergble land use. They also provide employment and skill -building oppottunitiesto under - served youth and the low -Income Community, while contributing to the local economy. STEELCRAFT LONG BEACH, CA Located In The Bixby Knolls neighborhood of Long beach, SteelCraft is an outdoor food hall created using 1020-and 40-foot shipping containers that host a total of eight businesses, including a Japanese ramen restaurant, an award -winning brewery and a chocolate shop. City Fabrid, served a major role in the bulltling, landscape and graphic design of SteelCoft, arranging the containers to create a series of inviting courtyards and patios at a human scale. SteeldraR is now unique addition to the community and has been able to stimulate the economic growth in The surrounding neighborhood. More importantly, this project pushes the envelop eon how adeptive reuse and pedestrian -orientated design can be successfully accomplished in the City MLong Beach, Inspirng similar projects in other progressive communities. SITEPLANREVIEW 19 WALNUT AND DAISY MICR 04ARM 75A-104 OUTREACH PROCESS THRIVE Santa Ana intends to raise the standard of community involvement in planning, neighborhood design, and local governance decisions. In early 2018, THRIVE partnered with community -driven planning researchers Carotid Sar en to and Eru aid o Ra Gonzalez and Santa Ana Budding Healthy Communities (SABHC( and to conduct a neighborhood survey, as part Wit, effort to develop the Walnut Street and Daisy Street parcel. The major objectives of the survey were to engage and involve localresidents, understand the opinions on the benefits associated with project ideasand likelinessto participate, as well as to hear residents' perspectives on the strengths, needs, qualities, and conditions of their neighborhood. This neighborhood survey and outreach process built on over 10 years of participative needs sents, oth er su rveys an d town ha Usthrou ghout Santa An a, throu gh which THRIVE, its community partners and loca Iresidents envision deveopment based on neighborhood neetls, building on bcaltalents. Most importantly, THRIVE continues to engage Local residents in the Walnut and Daisy area, inviting residents to Lead Local committee that will guide detlslons regarding the development. KEY OUTREACH AREA ® PROJECT SITE OUTREACH 101 SITEPLAN REVIEW, _ EXHIBIT 2 75A-105 LE .END -AB BREV IATIONB. ::.., .EGE—RE-BOLS: PARC l J 1901 W. WALNUT STREET VACANT DIRT LOT 'A"ELN.:-oa pr � ST RuE ET EXHIBIT 2 $NERLPN REVIEW .'.' PND SY MICRD-FARM 75A-106 SITE/FLOOR PLAN USES © � ... o Auw=PNR9-1 o S R. S oS E o -SIR... o RA ERS IFARMI NATIVERARDEN m RT. RD OPEN FLEX . E TRASH EN�LOXIJRE ® OI . LEPARKi Z v NG(UR PORTS) e SEATIN -ININ AREA ® PATKPSTRAVEL LEGEND CONCRETE STANDARD' �NHGETX PERMEABLE' PI-ANTNG P KEYNOTES 121 SITE PLAN REVIEW WALNUT AND DAISY MICRO -FARM � r - EXHIBIT 2 75A-107 - AL WALNUT In RENDERINGS 14I SITE PLAN REVIEW EXHIBIT 2 O RECONTAINERORANGE20 p SCON—NERORANOEAO p IRS CONTAINER RANCOR p NETAL OOOR p .O.—N.N. p NSOOO ROOF SCREEN p CLASS ROLLON ODOR O AwNiNun STOREFRONT p VEOETATEO SCREEN 75A-109 EXHIBIT 2 O ECONTAINER ORANGE= p SCONTAINERORANaE.n p ECONTAINER NFROON SO O METAL DOOR p MFORDAWNINa p WOOD ROOF SCREEN p GLASS ROLLUP DOOR p ALUMINUM STOREFRONT p veaeTATEe SCREEN O SITE PLAN REVIEW .15 WALNUT AND DAISY MICRO -FARM 75A-110 PROJECT SITE I COMPONENTS r PLANTING BED BIKE RACKS PARKING LOT/ FARMERSMARKET CANOPIES WORKROOM e OFFICE 1 I r, FARM STAND AQUAPONICS RAIN GARDEN he a' P ii DWARF FRUIT TREES WALNUT TREE �., STRINGLIGHTS TREE LIGHTS COMPONENTS PRODUCTIVE GARDEN t ni STREETTREE -. I SCONCE 1:04:ILy11111c3 Economic Development Subsidy Report Pursuant to Government Code Section 53083 For a Ground Lease with THRIVE Santa Ana, Inc. Pursuant to Government Code Section 53083, the City Council of the City of Santa Ana must hold a noticed public hearing and, prior to the public hearing, provide all of the following information in written form and available to the public through the City's website regarding a proposed economic development subsidy provided by the City pursuant to a Ground Lease at 1901 W. Walnut Street, Santa Ana, CA 92703, with THRIVE Santa Ana, Inc. Notice was published on the City's website for a public hearing to be held on March 3, 2020. The purpose of this report is to provide the information required pursuant to Government Code Section 53083 in regards to the Agreement. This report shall remain available to the public and posted on the City's website until the end date of the economic development subsidy, as further described in number 2 below. (1) The name and address of all corporations or any other business entities, except for sole proprietorships, that are the beneficiary of the economic development subsidy, if applicable. The Agreement is with THRIVE Santa Ana, Inc., a 501(c)(3) tax exempt California Public Benefit Corporation. THRIVE Santa Ana, Inc. P.O. Box 1935 Santa Ana, CA 92702 (2) The start and end dates and schedule, if applicable, for the economic development subsidy. Upon City Council approval of a Disposition and Development agreement, and if certain conditions for the development of the site are met, a proposed 99-year Ground Lease agreement is estimated to commence on April 1, 2021, and end on March 31, 2120. (3) A description of the economic development subsidy, including the estimated total amount of the expenditure of public funds by, or of revenue lost to, the local agency as a result of the economic development subsidy. The economic development subsidy is in the form of a subsidized 99-year ground lease for 1901 W. Walnut Street, Santa Ana, CA, 92703. The estimated amount of lost revenue is estimated at $817,000, the appraised value of the property. No expenditure of public funds is anticipated by this agreement. 75A-113 MO:ILy11111111c3 (4) A statement of the public purposes for the economic development subsidy. The property at 1901 W Walnut has been vacant for over 12 years. Development of the site as a microfarm would bring positive community benefits to the area that include: 1) making organic produce and other healthy options more available in the local neighborhood, 2) implementing a membership -based model to provide monthly baskets of vegetables, fruit and other garden products to members at a low cost, 3) creating worker cooperative jobs, 4) encouraging participation from local residents which can contribute to the local neighborhood economy, civic engagement, and prevention of costly health conditions including obesity and mental health illnesses. (5) Projected tax revenue to the local agency as a result of the economic development subsidy. Property tax revenue to the City is anticipated to be approximately $1,500 per year. No sales tax revenue would be generated as a result of the economic development subsidy as the sales for a microfarm with organic produce would not be subject to sales tax. (6) Estimated number of jobs created by the economic development subsidy, broken down by full-time, part-time, and temporary positions. The proposed Agreement will create approximately 5 full-time jobs, 10 part-time jobs, and 10 temporary positions within the next five years. 75A-114 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2020 TITLE PUBLIC HEARING: APPROVE SALES TAX SHARING AGREEMENT WITH TACENERGY /s/Kristine CITY MANAGER CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 11' Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO �1��►1�1�1:3q:7 RECOMMENDED ACTION Conduct a public hearing and authorize City Manager to execute the Sales Tax Sharing Agreement with TACenergy for continued operation of the company's sales office in Santa Ana, for the period of April 1, 2020 through December 31, 2045, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION Sales tax rebate assistance is an economic development tool used to encourage the development, expansion, and retention of businesses that create additional sales tax for a city. On August 5, 2013, the City Council approved the execution of a sales tax sharing agreement with IPC, Inc. ("IPC agreement"), an independent wholesale distributor of gasoline, diesel, jet fuel, and other refined petroleum products throughout the United States. The agreement provided for a 50 percent sharing of local sales tax generation, increasing to 70 percent when more than $1.4 million of sales tax is generated in a single year. The term of this agreement was to expire in January 2028. Since the agreement's execution, IPC has been one of the top ten sales tax producers for the City. On November 1, 2019, IPC (USA), Inc. was acquired by TACenergy, one of the largest national wholesale fuel suppliers in the country, with annual sales exceeding 2.7 billion gallons and more than $5 billion in revenue. Since the acquisition, TACenergy has been evaluating all of its newly acquired assets and have made the determination that they would like to remain in the city of Santa Ana due to its local employment base and centralized proximity to an airport and major freeways. Due to the acquisition, the City's current agreement with IPC has become invalid. On January 9, 2020, representatives from TACenergy met with the City Manager and Executive Director of the Community Development Agency to discuss the opportunity to enter into a new sales tax sharing agreement for 25 years at the same terms as the IPC agreement. Santa Ana operations are limited to a sales office, with no significant infrastructure investment. 75B-1 TACenergy Sales Tax Agreement March 3, 2020 Page 2 Therefore, it is proposed that the City enter into a sales tax sharing agreement with TACenergy to facilitate the continued operations of its main sales office in Santa Ana. During the term of the agreement, the City will share 50 percent of the sales tax generated by TACenergy, and increasing to 70 percent if more than $1.4 million in sales tax in generated in that year. The agreement term will terminate in 25 years (December 31, 2045) unless both parties agree to extend or the business has left the City. Based on TACenergy's projections, the cumulative total of sales tax generated during the term of the Agreement is estimated to be in excess of $50 million dollars. Of this amount, half will be paid to TACenergy, while the City will retain the remainder. This agreement will keep 30 jobs in the City of Santa Ana, with the expectation that the number of jobs will increase by an additional 15-20 within the next five years. Sales tax revenue is used by the City to fund police, fire, library, parks and recreational activities, and other general city services. Without this agreement, these general services may be cut or reduced. Public Noticing Government Code Section 53083 requires that the City Council must hold a noticed public hearing and, prior to the public hearing, provide information to the public through the City's website regarding the proposed economic development subsidy. As part of the approval process, an economic development subsidy report (Exhibit 2) must be completed and submitted detailing the structure of the public subsidy, projected tax benefits and estimated number of jobs that would be created by the subsidy. This report shall remain available to the public and posted on the City's website until the end date of the economic development subsidy. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #3 - Economic Development, Objective #3 (promote a solutions -based customer focus in all efforts to facilitate development and investment in the community), Strategy C (explore opportunities to encourage a business friendly environment within the city through the reduction of non -essential regulatory requirements, improved coordination between agencies for development review and addition of monetary incentives). FISCAL IMPACT There will be a positive fiscal impact associated with this action. The annual contribution of the continued sales tax to the General Fund from TACenergy is an economic enhancement to the City and will support services for the health, safety, and general welfare of residents of the City. The first sales tax sharing payment for the period covering April 1, 2020 through June 30, 2020 is estimated not to exceed $170,000. Funds are available in the General Fund, Sales Tax Rebate Agreement program, Sales Tax Rebate account no. 01118825-69300. Projected payments for future fiscal years will be budgeted in each respective fiscal year's budget. 75B-2 TACenergy Sales Tax Agreement March 3, 2020 Page 3 Steven A. Mendoza Executive Director Community Development Agency Exhibits: 1. Agreement 2. Subsidy Report Kathryn Downs, CPA Executive Director Finance and Management Services Agency 75B-3 i0:0:u:1ifi SALES TAX SHARING AGREEMENT This SALES TAX SHARING AGREEMENT ("Agreement") is made and entered into as of April 1. 2020, 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 TACenergy, a division of the Truman Arnold Companies, a Texas corporation ("TAC"). RECITALS A. On August 5, 2013, the City approved the execution of a sales tax sharing agreement with IPC (USA), Inc. ("IPC" }, an independent wholesale distributor of gasoline, diesel, jet fuel, and other refined petroleum products throughout the United States. The agreement provided for a fifty percent (501/o) sharing of local sales tax generation, increasing to seventy percent (701/o) when more than $1.4 million of sales tax is generated in a single year. The term of this agreement was to expire in January 2028. B. On November 1, 2019, IPC was acquired by TAC, one of the largest national wholesale fuel suppliers in the county (such TAC activities in California are hereinafter referred to as the "Petroleum Business', with annual sales exceeding 2.7 billion gallons and more than $5 billion in revenue. C. Since the acquisition, TAC has been evaluating all of its newly acquired assets and have made the determination that they would like to remain in the City due to its local employment base and centralized proximity to an airport and major freeways. D. In consideration for TAC's performance under this Agreement, City has agreed to pay to TAC certain payments, measured by a portion of the Sales Tax generated by the conduct of TAC's "Required Operations" in the City, provided that TAC causes Required Operations to be conducted in the City during the tent of this Agreement and complies with the other terms and conditions set forth in this Agreement, as more particularly set forth herein. City and TAC have agreed that the amount to be paid by City to TAC hereunder is a fair exchange for the consideration to be furnished by TAC to City. D. By its approval of this Agreement, the City Council of City has found and determined that it is of benefit to the City and its residents for the Required Operations to be conducted within the City, and that the imposition of certain terms and conditions relating to such uses and the City's payment of the City Consideration described herein constitute valid public purposes under the City's Charter and Article XVI, section 6 of the California Constitution as necessary for the economic enhancement of the City and to contribute to the City's general fund that supports services for the health, safety and welfare of the residents of the City. The City Council has further found and determined that TAC's conduct of its "Required Operations" as contemplated in this Agreement will assist in the generation of additional sales and use tax revenues to City as well as assist in the creation and maintenance of additional jobs and economic opportunities for the residents of the City. 75B-4 iM:N:11:11Mi EXECUTORY AGREEMENTS Based upon the foregoing Recitals and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by both parties, City and TAC hereby agree as follows: DEFINED TERMS. The following terms when used in this Agreement shall have the meanings set forth below: "City Consideration" shall mean the amounts to be paid by City to TAC for TAC's conduct of the Required Operations during the Operating Period. The City Consideration paid for the Operating Period shall be an amount equal to: (i) fifty percent (50%) of up to $1,400,000 of Sales Tax generated in the City from the Required Operations during each Contract Year; plus, (ii) seventy percent (700/*) of any Sales Tax exceeding $1,400,000 generated from the Required Operations within the City during that Contract Year. "Commencement Date" shall mean November 1, 2019, the date on which TAC acquired IPC and IPC's headquarters for its California business and southern California sales office in the City of Santa Ana, and commenced operations in the City. "Contract Year" shall mean the period from January I to December 31 during each year of the Operating Period. For the purposes of this Agreement, the first Contract Year ends on December 31, 2020. "Covered Parties" shall mean the City and its elected and appointed boards, members, officials, officers, agents, representatives, employees and volunteers. "Effective Date" shall mean the date first written on page I of this Agreement, "Operating Period" shall mean the period commencing as of the Commencement Date, and continuing until and expiring on December 31, 2045; provided, however, that, after TAC has been conducting Required Operations in the City for five (5) continuous years from the Commencement Date, TAC may terminate this Agreement for any reason (or no reason) upon one hundred eighty (180) days' written notice to the City. "Petroleum Business" refers to the operation by TAC in the City of a sales office selling petroleum products and products ancillary to the sale of refined petroleum that generate Sales Tax revenue. "Quarter" shall mean any three (3) month period commencing on January 1, and thereafter on April 1, July I and October f during the Operating Period. If the quarterly or other periods used by the State Board of Equalization in calculating or making Sales Tax payments to City differ from City's fiscal quarters described above, the parties shall modify the timing (but not the amount) of the City Consideration payments to coincide with the periods used by the State Board of Equalization. 75B-5 EXHIBIT 1 "Required Operations" shall collectively refer to the following on and with respect to TAC conducting its Petroleum Business in the City: (i) TAC retaining and continuing to own or lease sufficient facilities in the City to allow the Petroleum Business to be conducted; (4) TAC's operation of the Petroleum Business within the corporate boundaries of the City; and (iii) TAC not transferring or otherwise relocating the retail sales operation or the point of sale as reported to the State Board of Equalization for the Petroleum Business to another facility or location outside of the City. "Sales Tax(es)" means that portion of taxes that is allocated, paid to, and actually received by City from the imposition of the Bradley -Bums Uniform Sales and Use Tax law (commencing with Section 7200 of the California Revenue and Taxation Code), or any successor law thereto, arising from all taxable sales transactions, occurring from Required Operations conducted by TAC within the City during the Operating Period. "Sales Tax" shall not include sales tax revenues that are provided to a city based upon a special election and are limited to be used for a specified governmental function or functions. "Sales Tax Reports" shall include, for each Quarter: (i) a statement identifying the amount of Sales Tax paid by TAC from Required Operations within the City during the Quarter; and, (ii) copies of all statements and quarterly reports filed with the State Board of Equalization. "Termination Date" shall mean December 31, 2045, subject to extension or earlier termination of the Operating Period as set forth in this Agreement. 2. TAC OBLIGATIONS. 2. L Operating Agreement; Continuous Operation. TAC hereby covenants and agrees to maintain its headquarters for its California business and all sales offices in Santa Ana that are located in Orange County, California as of the date of this Agreement, and continuously conduct or cause to be conducted Required Operations within the City during the entire Operating Period. TAC agrees to maintain its principal place of business and all sales offices in compliance with State Board of Equalization regulations pertaining to "place of sale". Such continuous operations shall be subject to the force majeure provisions of Section 5.11 hereof. 2.2 Maximization of Sales Tax. At all times during the Operating Period, TAC shall designate its California corporate headquarters and sales office in the City as the point of sale for sales and use tax purposes in all Petroleum Business and related sales that originate from within the City. 2.3 Payment of Taxes. TAC shall pay or cause to be paid any and all taxes applicable to or arising out of TAC's lease, operation and/or use of its headquarters for its California business and sales office in the City (including, without limitation, all taxes attributable to sales occurring at such office), except that TAC retains its right to protest and contest County of Orange decisions related to the value of its interest in any property or leasehold. TAC shall make or cause to be made timely sales and use tax payments to the State Board of Equalization, except that TAC retains its right to protest and contest State Board of Equalization assessments or decisions that TAC believes to be erroneous. 75B-6 EXHIBIT 1 2.4 Compliance with Laws. Subject to TAC's right to contest same, TAC shall conduct or cause to be conducted all activities within the City and shall perform its obligations under this Agreement in conformity with all applicable federal, state, and local laws, ordinances, and regulations. Nothing in this Agreement is a representation or warranty by City that any tenant improvement or other construction work performed by TAC within the City on or after the date of this Agreement is not a public work as defined in Labor Code Sections 1720, et seq., including but not limited to Sections 1771 and 1781. 3, CITY CONSIDERATION PAYMENTS. 3.1 Payment of City Consideration to TAC. 3.1.1 Calculation of City Consideration. Inconsideration for TAC's undertakings pursuant to this Agreement, City shall make payments of City Consideration to TAC after the end of each Quarter, as follows: 3.1.1.1 Subject to Paragraph 3.1.1.2 below, for Required Operations conducted by TAC in the Operating Period, City shall pay TAC the City Consideration based on the actual net amount of Sales Tax directly received by the City from the State Board of Equalization during that Quarter. Subject to the terms of Section 3.1.2, the payment of City Consideration for each Quarter shall be made in a single lump sum payment within ninety (90) days following the end of that Quarter. 3.1.1.2 City Consideration shall be payable from any source of funds legally available to City. In this regard, it is understood and agreed that the Sates Tax from TAC's Required Operations in the City is being used merely as a measure of the amount of City Consideration payments that are periodically owing by City to TAC, and that City does not and legally cannot pledge any portion of that Sales Tax to TAC. 3.1.2 Payment Procedure. 3.1.2.1 After the end of each Quarter, and no later than thirty-five (35) days after TAC's payment of the Sales Tax to the State Board of Equalization for that Quarter, TAC shall submit to City the Sales Tax Reports for the preceding Quarter and a written request for payment of the City Consideration owing to TAC. Any delay shall not constitute either s breach of this Agreement or a waiver of TAC's right to receive the City Consideration under this Agreement, but may result in a delay in the City's payment of City Consideration to the extent that such delay by TAC causes the City to be unable to meet its payment obligations on a timely manner. 3.1.2.2 Payment of the amount determined by City to be owing to TAC for each Quarter shall be made by City within thirty (30) days after the later of the following: (i) TAC's submission of its completed payment request; and, (ii) City's verification (based upon corroborating information provided to City by either the State Board of Equalization and/or a sales tax consultant retained by City) that City has received the Sales Tax attributable to sales from all 75B-7 iM:N:11:1ifi Required Operations within the City for the applicable Quarter. Any disapproval by City of a TAC payment request shall state in writing the reasons for disapproval and shall be provided to TAC within fifteen (15) days after City has received information necessary to make the determination that the payment request cannot be approved. City agrees to expeditiously process TAC's requests for payment of City Consideration, TAC expressly understands that nothing contained in this Agreement shall obligate or otherwise commit City to pay the City Consideration for a Quarter unless and until City receives reasonably satisfactory verification that City has received the Sales Tax attributable to sales from the Required Operations in the City for that Quarter. 3.1.2.3 In the event that the State Board of Equalization conducts a review or audit of TAC's Required Operations or Sales Tax payments during the Operating Period that results in an actual and final loss or reduction of monies that City has already paid to TAC as City Consideration for one or more Quarters, or in the event that TAC amends any sales tax returns that causes a reduction in the Sales Tax due to the City for one or more Quarters, TAC shall, within thirty (30) days of its receipt of written notice by the City, return that portion of the City Consideration attributable to the monies that were lost or reduced. In the event that the State Board of Equalization conducts a review or audit of TAC's Required Operations or Sales Tax payments during the Operating Period that results in an increase of Sales Tax that TAC must pay for one or more Quarters, or in the event that TAC amends any sales tax returns that causes an increase in the Sales Tax due for one of more Quarters, TAC shall inform the City and the City shall commensurately increase the City Consideration paid by TAC. The provisions of this paragraph shall survive the termination of this Agreement. 3.1.2.4 The parties acknowledge that certain payments of Sales Tax received by City may be based on estimates and that such amounts will be periodically reduced or increased by the State Board of Equalization to reflect the actual amount of Sales Tax owed to City. The City Consideration payments shall be adjusted accordingly as necessary to conform to such reconciliations. The adjustment shall be made within sixty (60) days through a payment by TAC to City in the case of an overpayment to TAC, or a payment by City to TAC in the case of an underpayment to TAC. Within thirty (30) days of a written request by TAC, the City shall provide TAC with documentation to substantiate the adjustment of the City Consideration payment(s), 3.1.2.5 Within ninety (90) days following the end of each Contract Year, the City may conduct an accounting of all of TAC's Sales Tax Reports and Sales Tax payments during the immediately preceding Contract Year, and the amount of the City Consideration payments made to TAC for each Quarter during that immediately preceding calendar year. However, the City may conduct such an accounting at any time by giving thirty (30) days written notice in the event that facts or circumstances arise (such as change in operations, change of ownership or business entity status) that can impact the method or amount of TAC's Sales Tax Reporting or Payments. The City shall provide TAC a copy of that accounting and reconciliation upon its completion. In the event that the accounting and reconciliation identifies a disparity between the Required Operations, TAC's Sales Tax payments, or City Consideration during that immediately preceding calendar year, appropriate adjustments shall be made within sixty (60) days by a payment from TAC to City in the case of an overpayment to TAC, or a payment from City to TAC in the case of an underpayment to TAC. 5 75B-8 ININ:11:1ifi 3.1.3 No Acceleration. It is acknowledged by the parties that any payments by City provided for in this Agreement may only be paid for those periods in which City receives the performance of TAC pursuant to this Agreement. Therefore, the failure of City to make any payments or the failure by City to perform any of its other obligations hereunder shall not cause the acceleration of any anticipated future City Consideration payments by City to TAC. 3.2 Conditions Precedent to City's Obligations. City's obligation to perform hereunder, including without limitation its obligation to pay the City Consideration pursuant to Section 3.1 of this Agreement, shall be contingent and conditional upon TAC's full and satisfactory performance of its obligations set forth in this Agreement. Notwithstanding the foregoing, any delay by TAC in sending reports or other information to the City, or the existence of inadvertent errors in reports or information sent by TAC to the City, shall not constitute either a breach of this Agreement or a waiver of TAC's right to receive the City Consideration payable under this Agreement. However, such delay or error by TAC may result in a delay in the City's payment of City Consideration to TAC to the extent that such delay or error by TAC causes the City to be unable to meet its payment obligations on a timely basis. 3.3 Disclosure of Payments. TAC agrees that the City Consideration payments and the amounts thereof do not constitute a violation of Revenue and Taxation Code Section 7056 or any other provision of law pertaining to the disclosure of sales tax information, shall be a matter of public record, may be disclosed to any person, and may be included on the City's warrant register. TAC waives any law that is contrary to any of the agreements in this Section 3.3. 4. TERMINATION RIGHTS. 4.1 City Termination Rights. Subject to the force majeure provisions of Section 5.11 below, City shall have the right to terminate this Agreement if, following the Commencement Date, Required Operations are not conducted within the City fora period of ninety (90) consecutive days. 4.2 TAC Termination Rights. After TAC has been conducting Required Operations in the City for five (5) continuous years from the Commencement Date, TAC may terminate this Agreement for any reason (or no reason) upon one hundred eighty (ISO) days written notice to the City. 4.3 Mutual Termination Rights. City makes no representation or warranty to TAC as to the legality of the City Consideration payments or the City's authority to make such payments. In the event that a final, non -appealable judgment or decree is rendered against City invalidating its payment obligations set forth in this Agreement, either City or TAC may terminate this Agreement by delivery of written notice of termination to the other party. GENERAL PROVISIONS. 5.1 Entire Agreement, and Amendments. This Agreement incorporates all of the terns and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous 75B-9 i0:0:u:1ifi agreements between the parties with respect to the subject matter hereof. Any amendment or modification to this Agreement must be in writing and executed by TAC and City. 5.2 Limitations on City's Liability. TAC acknowledges and agrees that: 5.2.1 The relationship between TAC and City pursuant to this Agreement is and shall remain solely that of contracting patties, and City neither undertakes nor assumes any responsibility pursuant to this Agreement to review, inspect, supervise, approve, or inform TAC of any matter in connection with this Agreement or the Required Operations; 5.2.2 City shall not be directly or indirectly liable or responsible for any loss or injury of any kind to any person or property (except to the extent proximately caused by City's active negligence or intentional misconduct), resulting or in any way arising from: (a) any defect in any building, grading, landscaping, or other onsite or offsite improvement; (b) any act or omission of TAC or any of TAC's agents, employees, independent contractors, licensees, sublessees or invitees; or, (c) any accident at the facility to which TAC operates its headquarters for its California business and sales office, or any fire or other casualty or hazard thercon; and, 5.2.3 By accepting or approving anything required to be performed or given to City under this Agreement, 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. 5.3 Inte retation• Governing Law; Venue. This Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto. This Agreement shall be construed in accordance with the laws of the State of California, without regard to conflict of law principles. All legal actions must be instituted and maintained in the Superior Court of the County of Orange, State of California, or in any other appropriate court in that County. 5.4 Severability. If any term, provision, Agreement, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. 5,5 Eindine Effect; Successors and Assietts. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. 5.6 Notices. All notices and other communication required under this Agreement shall be in writing and shall be delivered by either: (i) personal delivery; (ii) reliable courier service that provides a receipt showing date and time of delivery; (iii) registered or certified U.S. Mail, postage prepaid, return receipt requested; or, (iv) facsimile. Notices shall be addressed to the respective patties as set forth below or to such other address and to such other persons as the parties may hereafter designate by written notice to the other party hereto: 7 75B-10 iN:N:11:1ifi To City: City of Santa Ana 20 Civic Center Plaza P.O. Box 1989 Santa Ana, CA 92702 Attn: City Manager Facsimile: (714) 647-6954 To TAC: Each notice shall be deemed delivered an the date delivered if by personal delivery or by overnight courier service, on the date of receipt as disclosed on the return receipt if by mail, or on the date of transmission with confirmed successful transmission and receipt if by facsimile. By giving to the other party written notice as provided above, the parties to this Agreement shall have the right from time to time, and at any time during the term of this Agreement, to change their respective addresses or contact persons. 5.7 Representations and Warranties. As a material inducement to City's entry into this Agreement, TAC represents and warrants to City that: (i) TAC has the full power and authority to enter into and perform under this Agreement; and, (ii) all authorizations and approvals required to make this Agreement binding upon TAC have been duly obtained. As a material inducement to TAC's entry into this Agreement, City represents and warrants to TAC that, subject to and limited by the provisions of Section 5.2: (i) City has the full power and authority to enter into and perform under this Agreement; and, (ii) all authorizations and approvals required to make this Agreement binding upon City have been duly obtained. 5.8 Litigation Expenses. If either of the parties institutes any legal action against the other in connection with any controversy related to, concerning or arising out of this Agreement, or any facts based upon or involving this Agreement, then the prevailing party, whether in court, through mediation, arbitration or by way of out -of -court settlement, shall be entitled to recover from the non -prevailing party such prevailing party's reasonable attorneys' fees, court costs, expert witness fees and other expenses relating to such controversy, including such fees, costs and expenses on appeal, if any; and the arbitrator(s), if any, is hereby authorized to make such an award to the prevailing party in arbitration. 5.9 Termination. In the event this Agreement terminates, no termination shall release any party in default and this Agreement shall survive for purposes of allowing a party to enforce its rights and remedies under this Agreement in the event of a default, including without limitation the provisions of Section 4.3. All indemnification provisions and any other provision that by its nature cannot be performed during the term of this Agreement shall survive the termination of this Agreement. 75B-11 iWO:u:1ifi 5.10 Defense of Third Party Claims. To the fullest extent permitted by law, TAC shall indemnify, defend and hold harmless the City, its officers, agents, and employees from and against any and all losses, liabilities, damages, costs and expenses that may be asserted by a third party, including attorney's fees and costs in the event that a third party files litigation challenging the validity or enforceability of this Agreement, or any payment of the City Consideration by the City to TAC. The City and TAC may jointly defend the Agreement and/or City Consideration payment. If the litigation is filed only against the City, TAC may move to intervene as a defendant, respondent or real party in interest, based upon the nature and form of the litigation. 5.11 Force Majeure. The obligations by either party hereunder shall not be deemed in default and times for performance hereunder shall be extended where delays are caused by firelcasualty losses; strikes, riots or war; litigation; unusually severe weather; inability to secure necessary labor, materials or tools because of a shortage in the market; delays of any contractor, subcontractor or supplier; unjustified acts or failure to act by City in the processing or approval of plans or permits or inspection or approvals of improvements for TAC's relocation of its headquarters for its California business and sales office to the City; acts of God, or other similar causes without the fault and beyond the reasonable control of the party, despite the party's diligent efforts (collectively, "force majeure"), if written notice is provided to the other party within a reasonable period following commencement of any such circumstances and, provided further, that the extension of time shall be only for the period of the force majeure delay. Adverse market conditions or the inability to obtain financing shall not constitute an event of force majeure. 5.12. Termination of IPC Agreement. Upon the Effective Date of this Agreement, the previous [PC Agreement No. A-2013-130 shall be terminated for all purposes, and deemed no longer effective or enforceable. 5.13 Counterparts, This Agreement may be executed in two or more counterparts, each of which when so executed and delivered shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. (signatures Onfollowing page) 75B-12 10:0:11:1ifi IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: DAISY PEREZ Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City AjImppy , x5Zme] Attorney RECOMMENDED FOR APPROVAL: STEVEN A. MENDOZA Executive Director Community Development Agency CITY OF SANTA ANA KRISTINE RIDGE City Manager TACENERGY: FREDERIC SLOAN Chief Operating Officer 10 75B-13 Economic Development Subsidy Report Pursuant to Government Code Section 53083 For a Sales Tax Sharing Agreement between the City of Santa Ana and TACenergy at 4 Hutton Centre, Ste 700, Santa Ana, CA Pursuant to Government Code Section 53083, the City Council of the City of Santa Ana must hold a noticed public hearing and, prior to the public hearing, provide all of the following information in written form and available to the public through the City's website regarding a proposed economic development subsidy provided by the City pursuant to a Sales Tax Sharing Agreement between the City of Santa Ana and TACenergy (Agreement). Notice was published on the City's website for a public hearing to be held on March 3, 2020. The purpose of this report is to provide the information required pursuant to Government Code Section 53083 in regards to the Agreement. This report shall remain available to the public and posted on the City's website until the end date of the economic development subsidy, as further described in number 2 below. (1) The name and address of all corporations or any other business entities, except for sole proprietorships, that are the beneficiary of the economic development subsidy, if applicable. The Agreement is with TACenergy, who owns and operates the existing business that will benefit for the economic subsidy: TACenergy 4 Hutton Centre Dr, Ste 700 Santa Ana, CA 92707 (2) The start and end dates and schedule, if applicable, for the economic development subsidy. Upon City Council approval, the proposed agreement is expected to commence on April 1, 2020, and end on December 31, 2045. The economic development subsidy be paid quarterly within thirty days of receipt from TACenergy of the required documentation per executed Agreement. (3) A description of the economic development subsidy, including the estimated total amount of the expenditure of public funds by, or of revenue lost to, the local agency as a result of the economic development subsidy. The economic development subsidy is equal to fifty percent (50%) of the sales tax received by the City quarterly, for each year, during the 25-year agreement period. No expenditure of public funds is anticipated by this agreement. 75B-14 (4) A statement of the public purposes for the economic development subsidy. On August 5, 2013, the City Council approved the execution of a sales tax sharing agreement with IPC (USA), Inc., an independent wholesale distributor of gasoline, diesel, jet fuel, and other refined petroleum products throughout the United States. The Agreement provided for a 50 percent sharing of local sales tax generation, plus a 70 percent (IPC) and 30 percent (City) sharing of additional sales tax generation above $1.4 million dollars. On November 1, 2019, IPC (USA), Inc. was acquired by TACenergy, one of the largest national wholesale fuel suppliers in the county, with annual sales exceeding 2.7 billion gallons and more than $5 billion in revenue. Since the agreements execution, IPC has been a top ten sales tax producer for the City. This sales tax generated is directly deposited into the City's General Fund which is primarily used to fund police, fire, homeless reduction, and parks and recreational services for the City's residents. Without this agreement, several of the City's general services may be cut or reduced for its residents. (5) Projected tax revenue to the local agency as a result of the economic development subsidy. Based on current projections, the cumulative total of sales tax generated during the term of the Agreement is estimated to be in excess of $50 million dollars. Of this amount, half will be paid to TAC Energy, while the City will retain the remainder. This Agreement will keep 40 jobs in the City of Santa Ana. TACenergy is projecting that they will generate more than $1.25 million in sales tax the first year, with a 6% annual increase in sales during years 3-7. This will equate to an average of $1.5 million per year in local sales tax. (6) Estimated number of jobs created by the economic development subsidy, broken down by full-time, part-time, and temporary positions. The proposed Agreement will assist in retaining approximately 30 jobs, with the expectation that the number of jobs would increase by an additional 15-20 jobs within the next five years. 75B-15