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FULL PACKET_2009-05-04
REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 4, 2009 TITLE: DESTRUCTION OF OBSOLETE CITY RECORDS C Y MANAG R RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 15' Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For, CONTINUED TO FILE NUMBER Approve the requests for the destruction of obsolete records from various City departments in accordance with the retention schedule outlined in City Council Resolution 2006-045. DISCUSSION On July 3, 2006, the City Council approved a resolution outlining the records retention schedule for the agencies, departments, and offices of the City. City records are governed by the Public Records Act which provides the time in which records need to be kept. The Citywide Records Team compiled the Citywide Records Retention Schedule which sets forth the retention period for a particular record. The Municipal Code requires that the destruction of a City record be approved by the City Attorney. In accordance with Section 5B of the Citywide Records Retention Schedule Resolution, the City Attorney has approved the list of records proposed for destruction from the departments as outlined in the attached documents. FISCAL IMPACT There is no fiscal impact associated with this item. 19C-1 MEMORANDUM To: Laura Sheedy, Assistant City Attorney City Attorney's Office From: Mark Lawrence, Executive Assistant to the City Manager Date: Apri120, 2009 Re: REQUEST FOR DESTRUCTION OF RECORDS The City Manager's Office requests your consent to destroy city records on the attached listing, in accordance with the retention schedule outlined in City Council Resolution 2006-045. Thank you. 19C-2 CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE CITY MANAGER'S OFFICE 2009 RECORD RECORD RECORD EXPIRATION CATEGORY SERIES DESCRIPTION DATES Chronological Files Staff Memoranda and Correspondence May 1, 2007 and prior Correspondence/ May 1, 2007 Chronological Files Councilmember Self-explanatory and prior Council Requests Mayor Inquiries processed for Mayor May 1, 2007 and prior Wards 1 through 6 Inquiries processed for Councilmembers May 1, 2007 and prior Correspondence General Correspondence Self-explanatory May 1, 2007 and prior Staff Inquiries processed for Staff May 1, 2007 and prior Monthly Status City Manager Self-explanatory May 1, 2007 Reports and prior Payroll Records Council/Staff Self-explanatory May 1, 2007 and prior APPROVE /~ David N. Ream Date City Manager RECORDS DESTROYED: Volume in Cubic Feet Weight in Pounds CONSENT: Joseph W. Fletcher Date City Attorney AUDITED BY: Mark Lawrence Date Assistant to the City Manager 19C-3 19C-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 4, 2009 TITLE: QUARTERLY REPORT OF INVESTMENTS AS OF MARCH 31, 2009 ~.1' - ~d CITY MANAGER RECOMMENDED ACTION Receive and file. DISCUSSION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 15t Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER In 1995, the State of California enacted legislation revising the reporting requirements relative to investment of funds by governmental agencies. These requirements, which became effective on January 1, 1996, mandate that a statement outlining the ability of both the City and the Redevelopment Agency to meet the budgeted expenditures for the subsequent six months be submitted to the City Council on a quarterly basis. The legislation dictates that this quarterly report contain the seven major elements listed below: • Type of investments, • Date of maturity, • Par and dollar amounts invested in each security, • Weighted average maturity of the investments, • Market value as of the date of the report, • Source of the market value information, and • Any funds, investments or programs, including loans, under the management of contracted parties. State statutes require that a quarterly report be presented at a Council meeting; however, our office continues to provide this information monthly. The information is in compliance with State law and the City's Investment Policy. The attached report (Exhibit 1) accurately reflects all pooled investments held on behalf of the City and Redevelopment Agency as of March 31, 2009. 19D-1 QUARTERLY REPORT OF INVESTMENTS Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. ~l' Francisco Gutierrez Executive Director Finance & Management Services Agency 19D-2 CITY OF SANTA ANA TREASURER'S REPORT as of March 31, 2009 EXHIBIT 1 19D-3 Q ~ ~ o C C ~ N N ~ N M 0 ~ ~o~~ v o a° a U_ r~ T w ~_+' A w D ~ F o a a° o~ mm ~~ A ~ W d7 a-'~ C d d c li o .. a~ w ~C d E a o c y o I O ~ Y 'O f0 C - m N n O n M N O N N N m N M N O W O N a 0 ( O ~ ~ f0 C o o c~i o r o r ~ >. o U C ~ ~ iq Q c0 U c ~ ~ O ~ M ~ t"1 N j • ~ I r r ~ r L O O- N O O V1 a j t~q N ~ ~ ~ .-. N ~ ~ U w d I N ' aD N N N N ~ ~ T E m E y i ~ O T U .. v a~ U e N w w n ~ ao rn m~ M ao o u~ p ~ c C L N ~ O N ~ C f0 ~ 01 ~ I V C O m rMi n co r c ~ o ri of OD 7 n M N O 0I M OD N 47 n On1 ll~ ~ N m n OI M n v ~ ~ ri n ~ m ~o~~o rn o n v N a~0 ~ ~ ~ M 01 O M f0 t0 ~~~ ~n n rn ao c~ N W n N M n ~ ~ ~ N v o rn o 0 rn o n o 0 v o 0 0 0 OD O n O O O O M O O o r ui ri ~ O Of N ~ N O n ~ ~ r ~ ~ ~ N y w y . N 0 C U U U LL Q ~ (n U1 y C p ~ y o E c ~ ~ o ~ U O a C ~ ~ T a ¢ ~ ~' C f6 N Q Q N ~ f0 m L Q ~ E m m E n o °~ o a~ ~ U K ~i ~i = Q L °~° o a - c N m 7 m C N ~.~ D ~ ~ E o .o in N T O ~ v n o ~ > U c m 1 r - O M A O C .t.. 01 7 M ¢ ~ U C . 0 a e + c N i m t II ~ ~ Y o ~ w >,c~ U o ` ~ ~ c I N~ :? ~ ~ ~ I ri ', n ri = ~~ o i D ~ N I _ ~+ ~ ~ r ~ ~~`~ D ~, M ~ 'p w _ N f0 c ~ M ~ m V O t V d C Q O N ~- N 'O O- f4 f0 C U T C ~ O ~ cMO ~ ~"~ ~, Of c I O cq ~ a n co ~ O. ~ m ~ ~ ~ C~ T N M " W !~ 01 a C n.. ~ a n p ~ r m~ O ~ ' ~ C M ~ t0 M ~ '~ C / O r ~ O n 'O O / Y- ~ M ~ M U / ~, fly X y M tq .C 01 ` O Q y Y. / f0 C C `/ /J w / O O ~ C O w ~ > N L ~ O C fA o ~ N ` ~ , N O ~ d ~ ~ LIj ~ w I ` ? ~ ~ ~ N / ~ m ~~ a~ ~ y G ~ ~ C ! ~ ~ c U .0. ~ ~ c a~ ac ~, 0 C ~ y ~ m >. O d N ~ Z C w~ m ~ a i c 16 L C ~ ~ ~ ° ° Q. 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OI O1 C C C C C C C C C C C C C ~ ~ ~ ~ ~ ~ ~ ~ r C C ~ 'C 'C L"' r ~ L' t"' ~j f0 !6 N N fC N f6 (0 f0 f6 N f0 N O O O O O O O O O O O O O O O O O O O O [a LO m m m m m m m m m m m ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ N C C C C C C C C C C C C C C C C C C C C C C C C C C C C C C C C Q O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O p~ J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J J N N G7 N N N N N N N N N N N N N N N N N N N N N N N N N N N N N E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E- 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 o m 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 S 2 2 2 2 2 2 2 2 2 2 Z m m m m m m m m m m m m m m m m m ~a m m ~a m m m m m m m m m m m m ` ` ` °' ~ N m ~ m m a~ a~ m a ~ m a~ ~ a~ a~ a~ a~ m `m d `m `m a~ m m a~ a~ m a~ a~ a~ m a~ m` m` a ~ -o ~ ~ a -o v ~ -o ~o ~o -o a a -o a ~ -o a ~ ~ a a a ~o ~o -o a ~o -o ~ N N N N N N N N N N N N N N N N N N N d N N Cl N N N N N N N N N N LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL y d # w' C d 7 V y w V (O f~ ~ ~ ~ O ~_ O M ~' (O I~ V O O N M ~ n ~ O T N M N V' 00 ~ f0 (O t0 (O I~ O O d' O V' O O O n n h M M j C (O (O f~ M (O (O (O (O f~ 1~ r r n r r ~ ~ M M ~f (O t0 (O (O t0 (O (O (O <O (O tD I~ r r r n V V N_ Q N a {~ O> O 41 O N ~ Q K 7 2 X ~ Y M O N O N N W p 7 O O M ~ O r N p M W I~ LL~ ~ tl' n r ~ ~ N ' ~ ~ N ~ N ~ Q Y -~ ~ W 2 W LL 2 m U N~ J Z~ D~ W~ W d d~ U ~/, ~~~ d~ d~ N O W 2 LL LL LL 2 2 LL C7 N J J J~ ~' y U~ ( ~ o a ~ ~ , ~ in ~ u~ ~n ~n u~ ~~ u~ ~n in in r n n r n n r n n n n r r n n r n n r rn co ao 0o ro w m m ao ao m ro m m rn rn rn rn rn rn rn rn rn rn rn rn m rn rn (A rn rn rn rn oo M M M M M M M M M M M M M M M M M M M M M M M M M M M M M M M M ~ ~ ~ M M M M M M M M M M M ~ M ~ M M M M M M M M M M M M M M M M M O U LL ~~ ~ M M M M (+1 M M C7 C7 M M M (`') (h M M M M M M M M M M M M M M M ~ d ~~ O O O M f0 n N N N n (O 01 O O O O (O O O ~ Ql Q d N O ~ N N N N N d M N N V O O W OD M d N N ~ ~ - ~ ~ U N O ~ ~ ~ . ~ ~ ~ N N N co ~, ~ O ~ a G~ U ~~ O OI 07 m W W O W 01 O O W 01 O T O1 W O m O ~ $ r d O O O O O O O O O O O O O O O O O O O O ~ Q C~ O O O O O O O O O O O O O O O O O O O O N N N N N N N N N N ~~ N N N N N N N N N N N O M ~ O E jp f0 ~ (O m a O O O f0 t[) ~ O O O tD f7 O O O N O O M N N ~ O O N ~ M M O N N ~ d ~ o ~ ~ a a 0 0 0 0 0 0 o LL ~ ~ r ~ ~ ~ o 0 0 ~ ~ LL N ~ u7 O ~~ n d M N f0 ~ ~A e0 n (O ~ d n h W d t0 M M O M d O n d O V V ~ O O O O M ~ O T M } O O M n N N OD n n M N N N M d a M n n v ~ ~ O O O O O O O O O O O O O O O O O O O d r LL () O O O M d V ~ M N M N N N M O O O M O M Of i0 N N O N O O M W t0 d O d d N f0 O u7 n N u7 Qf P M O O M n OD a0 c0 n n M N N N M d d M n n a W d ~ ~ ~ O O O O O O O O O O O O O O O O O O O r C d O O O O O O O O O O O O O O O O O O O ~ O O O m m N ~ O M N N N M~ M~ t O M n n n ao n ~ n d ~ O O O O O O O O O O O O O O O O O v m 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 o ao ~ O O O O O O O O O O O O O O O O O O O O N M O O O O O O O O O O O O O O O O O O O O d N O O O O O if1 O i(7 O O O O O O O O O N O_ O O t0 u7 r O N O W O QI O t[7 O O V O O O O M tD d i0 d a0 W n t0 N (O d o0 a0 n n (O O m O M O n try O O QI O W 01 T O W W OI 01 O O O m W O m T M d ~ d d QI Of O~ d d m O T V W O) O O W V C W M t0 N P7 N r N ~ N N N O ~ r r ~ ~} N p" M d O O O O O O O O O O O O O O O O O O O O O M 7 O O O O O O O O O O O O O O O O O O O O O P O O O O O 0 0 O O O O O O O O O O O O O O ~(7 O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O h M W O O O O O O O O O O O O O O O O O O O O M n 4. O O O O O O O O O O O O O O O O O O O O N fA O O O O O ^ u7 ~ O O O ~ O O O O O O off ~ ^ < N M M N c+J N M N N N ~ O C ~ M N ~ O C Q~ d O N O s} n O O n O n n O n n CO M n O O ~ M O C ~ O 7 O N O O ~ O~ r O ~ (O O (D c0 n M fD U7 O I~ d O {O ~ N O O O O n Q1 O d d O O O n M N O W 10 ~ N ~ Y n N n M M M M O ao OD d m n M (O lfi O n O O N n O d O ao N~ oo (O OD n d m O n ' N N 10 e+1 41 - (O n u 1 v (7 W O N n CO t0 ~~ n (O n O N~ n co rn rn m ro ao rn m rn rn rn m Of h ~ $ n rn rn rn oo rn rn v d_ rn a~ m d v v rn rn rn v m rn rn rn rn v a rn ao M m M O M _ N M N r N ~ N N N O r r r r O = ~ M a ~ ~ O ~ ~ O = ~~ w ~ ~ ~ m ~ ~ ~ ~ ~ ~ ~ ~, ~ ~ ~ ~ ~ ~ ~ ~ d d a - 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 ~ ~ L 0 0 N N N N N N N N N N N N N N N N N N N N L' ~° ` ~ OD r ~ ~ ~ lfi 1n ~ ~ ~ W O~ f~ t0 ~ 00 f7 f0 M d d a7 O O O O O O O O O O O O \ N O N N O a Q Q aa ooooo oooo ~ soosooo o ~ ~ A A N ~ C d a ~ 0 rn y c ~o 0 H 0 0 0 0 0 ° ~° ~ ~°° ~ ~ ~° ~ ~ ~' 0 0 0 0 0 0 0 0 `~ 0 0 0 0 0 N N fA U) N fA N N Ul 41 N N tl) N N U) N N N N N fn N N tll N Ul N N 41 N N N N N tll N N fn N Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q ~~'' --~~ y y 2 ~ ~ 2 m m m m m m m m m m m m m m m io m m m m Z Z Z Z Z Z Z Z Z Z Z Z Z Z Z Z Z Z Z Z ~ m m m R m m m m m m m m m m m m m m m m ` °' ~ m m d `m a~ m d a~ a~ m d a~ a~ `m a~ a~ `m `m a~ m ~ - ~ o o v a p a a a a a ~o ~o -o a~ -o a -o a~ N N N N N N N N N N N N N N N N N N N N N LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL N d V "y N O O N O m O N M O N M ~ N N 'c{ a0 N QI y +' C N M v n n 00 OD OD m OI W m O Of N M M v d ~o co co co ~o co c ~ ~ o co co o m m co co n n n n n V _N _ O (V T V O) d Q X~~ n m d O ~ J m W W (n LL C~ Q Q n n~~ ~ Z Z C7 Q' Z Z 2~ d d f7 Z Z Y Y Y Y Y 2 2 2~ d Y v o d ~ rn rn rn rn m rn rn rn rn m rn rn rn rn rn rn rn rn rn rn y m eo m ao au ao m ro ao ro ao ro m m eo ao m m m m N ~ ~ u~ .n ~n ~n ~n ~n .n ~n ~n ~n ~n ~n .n ~n u~ ~n ~n u~ ~n M M M M M ~ ~ ~ M M M M M M M M M M ~ U LL ~~~ ~ C7 M M M M M M M M M M M M_ M M M M ~ N m a a C H > Q1 C O O 'a N Z ~ N M a°c)s 1 ` O O a C U_ us ~ M () O ~ M C ~ 7 U m 7 W ~+ A c O C G O C m r~ ~ O f~ O ~ O u7 OD ~ V 0 O O O O M ~O n N M n M t0 A M~ O n ~ ~ o eMO m o j rn a°o n r Y ~ O N N 01 ~ N n ~ O 0 M N "~" ~~ L ~ a O> N N d M O Q a o 9 is 0 a y C 0 c N U m U ~ ~ N LL Q C O Q Y N C C (0 f0 m (~ d O1 d Q U W d E m a c c c m t A U is O H d N N C d E pl d C M M n W ~ r LL O U N ~ U ~~ ~> ~ ar O °~ a O 1. ~ N LL LL LL fV al V! 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S. Department of Housing and Urban Development. COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION ACTION At its Regular Meeting of April 21, 2009, by a vote of 5:0, the Community Redevelopment and Housing Commission recommended that City Council approve a Substantial Amendment to the Consolidated Plan 2008-2009 Action Plan and authorize its submittal to the U. S. Department of Housing and Urban Development. DISCUSSION The American Recovery and Reinvestment Act of 2009 (~~Recovery Act") appropriated $1.5 billion for communities to provide financial assistance and services to either prevent individuals and families from becoming homeless or to help those who are experiencing homelessness to be quickly re-housed and stabilized. The Homelessness Prevention and Rapid Re- Housing Program (HPRP) is one of the new grant programs funded through this appropriation. Under the terms of the funding distribution formula established by the U. S. Department of Housing and Urban Development (HUD), Santa Ana has been allocated $2,831,989. In order to receive funding, the City must adopt a Substantial Amendment to its Consolidated Plan 2008 Action Plan (Exhibit 1). The Annual Action Plan serves as an application for the program funds and establishes a one-year investment plan that outlines the intended use of resources to meet the needs of the community. 19E-1 HPRP May 4, 2009 Page 2 There are four categories of eligible activities for the HPRP program: 1) financial assistance, 2) housing relocation and stabilization services, 3) data collection and evaluation, and 4) administrative costs. HPRP assistance is not a mortgage assistance program, nor is it intended to provide long term support for program participants. The focus of the program is housing stabilization and linking participants to community resources to develop a plan to prevent future housing instability. The table below indicates the preliminary estimates for the various HPRP activities. HPRP Estimated Budget Summary Homelessness Rapid Total Amount Prevention Re-Housing Budgeted Financial Assistance $990,000 $990,000 $1,980,000 Housing Relocation $327,494 $327,495 $654,989 and Stabilization Services Subtotal $1,317,494 $1,317,495 $2,634,989 Data Collection and $56,000 Evaluation Administration $ 141,599 Total HPRP Amount $ 2,831,989 Budgeted The HPRP activities will be undertaken by working closely with regional partners in a collaborate effort and selecting sub-recipients through a Request for Proposal (RFP) process. The purpose of the RFP is to solicit and select homeless service providers who will be able to meet program guidelines, provide the necessary services and disburse the funds in the designated time. Program participant requirements include an initial consultation with a case manager, an income below 50 percent of the Area Medium Income, and a household who has no appropriate housing options identified and who lacks the resources and support networks needed to obtain immediate housing or remain in existing housing. On April 21, 2009, the Community Redevelopment and Housing Commission held a public hearing to receive community input on the proposed 19E-2 HPRP May 4, 2009 Page 3 substantial amendment. As required by the Recovery Act, the Substantial Amendment of the 2008-2009 Action Plan was available for a 12-day comment period. Notices were published in the Orange County Register, La Opinion and Nguoi Viet News. In addition, the Substantial Amendment was posted on the City's website. All comments received during the comment period and public hearing have been included in the final document, which is due to HUD no later than May 18, 2009. FISCAL IMPACT By submitting this Substantial Amendment to its 2008-2009 Annual Action Plan, the City of Santa Ana will be eligible to receive $2,831,989 in grant funds under the American Recovery and Reinvestment Act of 2009 for Homelessness Prevention and Rapid Re-Housing. APPROVED AS TO FUNDS AND ACCOUNTS: Cynthia J. N lson Deputy City Manager for Development Services Community Development Agency ~ " ~ \ ~.- Francisco Gutierrez L~..p, Executive Director ""~~ Finance & Management Services Agency CJN/NTE/TE/mlr 19E-3 OMB Approval Number: 2506-0180 (Expiration Date: 9/30/2009) Substantial Amendment to the Consolidated Plan 2008 Action Plan for the Homelessness Prevention and Rapid Re-Housing Program (HPRP) Grantees eligible to receive funds under the Homelessness Prevention and Rapid Re- Housing Program (HPRP) are required to complete a substantial amendment to their Consolidated Plan 2008 Action Plan. This form sets forth the required format for this substantial amendment. A completed form is due to HUD within 60 days of the publication of the HUD HPRP notice. To aid grantees in meeting this submission deadline, the HPRP Notice reduces the requirement fora 30-day public comment period to no less than 12 calendar days for this substantial amendment. With this exception, HPRP grantees are required to follow their Consolidated Plan's citizen participation process, including consultation with the Continuum of Care (CoC) in the appropriate jurisdiction(s). Grantees are also required to coordinate HPRP activities with the CoC's strategies for homeless prevention and ending homelessness. To maximize transparency, HUD strongly recommends that each grantee post its substantial amendment materials on the grantee's official website as the materials are developed. A complete submission contains the following three documents: 1) A signed and dated SF-424, 2) A completed form HUD-40119 (this form), and 3) Signed and dated General Consolidated Plan and HPRP certifications. For additional information regarding the HPRP program, visit the HUD Homelessness Resource Exchange (www.hudhrc.inf~~). This site will be regularly updated to include HPRP resources developed by HUD and its technical assistance providers. The information collection requirements contained in this application have been submitted to the Office of Management and Budget (OMB) for review under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501- 3520). This agency may not collect this information, and you are not required to complete this form, unless it displays a currently valid OMB control number. Information is submitted in accordance with the regulatory authority contained in each program rule. The information will be used to rate applications, determine eligibility, and establish grant amounts. Public reporting burden for this collection of information is estimated to be 16 hours, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. This information is required to obtain benefits. To the extent that any information collected is of a confidential nature, there will be compliance with Privacy Act requirements. However, the substantial amendment to the Consolidated Plan 2008 Action Plan does not request the submission of such information. Warning: HUD will prosecute false claims and statements. Conviction may result in criminal and/or civil penalties. (18 U.S.C. 1001, 1010, 1012; 31 U.S.C. 3729, 3802) HUD-40119 19E-4 Substantial Amendment to the Consolidated Plan 2008 Action Plan for the Homelessness Prevention and Rapid Re-Housing Program (HPRP) A. General Information Grantee Name City of Santa Ana Name of Entity or Department Administering Funds Community Development Agency (CDA) HPRP Contact Person (person to answer questions about this amendment and HPRP) Nancy Edwards Title Assistant Director CDA Address Line 1 20 Civic Center Plaza Address Line 2 PO Box 1988 City, State, Zip Code Santa Ana, CA 92701 Telephone 714-647-5360 Fax 714-674-6549 Email Address nedwards@santa-ana.or~ Authorized Official (if different from Contact Person) David N. Ream Title City Manager Address Line 1 20 Civic Center Plaza Address Line 2 City, State, Zip Code Santa Ana, CA 92701 Telephone 714-647-5200 Fax 714-647-6954 Email Address achristensen@santa-ana.or~ Web Address where this Form is Posted www.santa-ana.org Amount Grantee is Eligible to Receive* $2,831,989 Amount Grantee is Requesting $2 831 989 *Amounts are available at http://www.hud.gov/recovery/homelesspreventrecov.xls 2 4/28/09 HUD-40119 19E-5 Substantial Amendment to the Consolidated Plan 2008 Action Plan for the Homelessness Prevention and Rapid Re-Housing Program (HPRP) B. Citizen Participation and Public Comment 1. Briefly describe how the grantee followed its citizen participation plan regarding this proposed substantial amendment (limit 250 words). Response: As required, the City of Santa Ana utilized its established Citizen Participation Plan as the framework for making the public aware of the receipt and use of HPRP funds. Only one modification to these established procedures was made -the one exception is allowed under the approved HPRP regulations. The City published notices announcing the receipt of HPRP funds and the process by which members of the public can review and comment on the proposed substantial amendment to the City's 2008-2009 Action Plan. The notices were published in local English, Spanish and Vietnamese-language newspapers. Additionally, the City posted the draft substantial amendment on its website (www.santa-ana.or~). The one modification to the Citizen Participation process, as allowed by HUD's HPRP Notice, was to reduce the typical 30-day public comment period to 12 days. The City published the aforementioned notice on April 15, 2009. The notice announced the public review and comment period, which began on April 16 and ended on April 27, 2009, and also announced a public hearing to be held by the City's Community Redevelopment and Housing Commission on April 21, 2009. 2. Provide the appropriate response regarding this substantial amendment by checking one of the following options: ^ Grantee did not receive public comments. ® Grantee received and accepted all public comments. ^ Grantee received public comments and did not accept one or more of the comments. 3. Provide a summary of the public comments regarding this substantial amendment. Include a summary of any comments or views not accepted and the reasons for non-acceptance. Response: Four comments were received during the comment period: Two were submitted verbally via telephone: One requested information on how an individual could apply for assistance. Staff informed the caller that the program will be operated by nonprofit service providers that are yet to be selected. A second caller requested information regarding the program but did not leave a return call phone number. Two written comment were provided (see page 12 & 13). One commenter expressed support for the application, but was critical of local service providers. No return contact information was provided by the commenter so City staff was unable to respond. The second commenter asked to 3 HUD-40119 4/28/09 19E-6 Substantial Amendment to the Consolidated Plan 2008 Action Plan for the Homelessness Prevention and Rapid Re-Housing Program (HPRP) be kept informed as to how the City plans to use the funds. Additionally, this group attended the public hearing where they informed the Community Redevelopment and Housing Commission that their organization is available to provide services. C. Distribution and Administration of Funds Reminder: The HPRP grant will be made by means of a grant agreement executed by HUD and the grantee. The three-year deadline to expend funds begins when HUD signs the grant agreement. Grantees should ensure that sufficient planning is in place to begin to expend funds shortly after grant agreement. 1. Check the process(es) that the grantee plans to use to select subgrantees. Note that a subgrantee is defined as the organization to which the grantee provides HPRP funds. ^ Competitive Process ^ Formula Allocation ® Other (Specify: A competitive process utilizing a Request for Proposals (RFP) will be used; however, an option for special consideration will provided for proposals that facilitated partnerships with other Orange County HPRP grantees for the purpose if achieving regional efficiencies and those that provide sole source services, e.~., HMIS.) 2. Briefly describe the process(es) indicated in question 1 above (limit 250 words). Response: Santa Ana is an Emergency Shelter Grant (ESG) recipient, therefore, to the extent possible, a process similar to one delineated in the City's Citizen Participation Plan and Consolidated Plan will be used to solicit, review, select and award HPRP sub-grants. This process encompasses the following: ^ A notice announcing the City's receipt of HPRP funds was published April 15, 2009 (published in English, Spanish and Vietnamese). ^ The 12-day public review/comment period commenced April 16, 2009 and ended April 27, 2009. ^ A public hearing to obtain public input was held April 21, 2009. ^ While the City awaited HUD's amendment approval, a RFP was prepared and distributed to homeless service providers soliciting proposals for HPRP-eligible programs that serve Santa Ana residents. ^ Responsive proposals will be screened by staff to ensure completeness and compliance with HPRP regulations. 4 4/28/09 HUD-40119 19E-7 Substantial Amendment to the Consolidated Plan 2008 Action Plan for the Homelessness Prevention and Rapid Re-Housing Program (HPRP) ^ A committee will be assembled to interview qualified applicants and to prepare funding recommendations to the Community Redevelopment and Housing Commission (CRHC). ^ The CRHC will hold a meeting to consider grant allocation recommendations and to finalize a recommendation to the City Council. ^ The City Council will take action to award HPRP sub-grants prior to September 30, 2009. Regarding distribution of administration funds, no more than 50% of the amount allowed for "administration" will be available to subgrantees. subgrantees may make reasonable requests for a portion of these funds; however, the amount awarded will depend on the number of HPRP sub-grants awarded and the proposed use of administration funds. 3. Briefly describe the process the grantee plans to use, once HUD signs the grant agreement, to allocate funds available to subgrantees by September 30, 2009, as required by the HPRP Notice (limit 250 words). Response: As indicated above, the City will modify the existing application review and grant allocation processes. Modifying the existing processes will help expedite the allocation of HPRP resources. The City will also make an effort to use HPRP funds in a coordinated manner with the County and other local grantees. Key elements to the fund allocation process include: ^ Develop and disseminate a RFP to homeless service providers soliciting proposals for HPRP-eligible programs that serve Santa Ana residents. ^ Work in partnership with the County and other HPRP grantees to coordinate the use of funds on a region-wide basis. ^ Develop asub-recipient grant agreement that encompasses key elements of the HPRP. ^ Staff will screen applications to ensure proposed programs are compliant with HPRP regulations. Peer review by other HPRP recipients may be utilized at this phase. ^ Interviews of applicants will be conducted by a committee, which will develop funding recommendations for the Community Redevelopment and Housing Commission (CRHC). ^ A meeting held by the CRHC to consider grant allocation recommendations and to final a recommendation to the City Council. ^ Council approval of grant agreements (including amounts). ^ Execution of agreements by mid-September to ensure complete program information is available for the first quarterly report (due October 10, 2009) 5 4/28/09 HUD-40119 19E-8 Substantial Amendment to the Consolidated Plan 2008 Action Plan for the Homelessness Prevention and Rapid Re-Housing Program (HPRP) 4. Describe the grantee's plan for ensuring the effective and timely use of HPRP grant funds on eligible activities, as outlined in the HPRP Notice. Include a description of how the grantee plans to oversee and monitor the administration and use of its own HPRP funds, as well as those used by its subgrantees (limit 500 words). Response: Following City Council approval of the substantial amendment, the City will develop and issue a RFP. Appropriate and timely use of HPRP resources is critical to both the City and HUD. To this end, the City will implement several key actions: ^ Create a grant application that clearly outlines HPRP-eligible uses. Applicants that propose ineligible activities will be rejected (the City reserves the right to allow application modifications). ^ Only organizations with experience providing HPRP-type services for the homeless and persons at risk of homelessness will be eligible for funding. Applicants must also have experience administering HUD (or other federal) grant funds. These requirements will help reduce the lead-time before services are provided to clients. ^ Subgrantee agreements will contain language that holds aperson/organization to a higher standard with respect to the accuracy of information. For example, self-certifications, other forms used to obtain client data, and Subgrantee reports will include a statement attesting that information is provided under penalty of perjury. The use of strong language aims to discourage abuse of HPRP-funded assistance. Finally, the City will be prepared to aggressively prosecute any person that knowingly provides false or misleading information for the purpose of wrongfully obtaining financial assistance. ^ At least once per year, Staff will conduct on-site monitoring of all HPRP subgrantees for the purpose of verifying appropriate use of funds and proper documentation of persons assisted. ^ Each HPRP agreement will contain a Scope of Work that will include a grant expenditure plan and service goals with specific performance milestones and output/outcomes measurements. The City will consider entering into 12- month contracts with subgrantees with an option to renew for an additional 18 to 24 months. At the end of the initial term, the City will evaluate the milestones, goal attainment and expenditure rates of subgrantees to ascertain if performance and expenditure goals will be met. A 12-month term will provide the City with a window in which to take corrective action, especially if it appears unlikely that the required two-year/60% grant expenditure rate will not be met. If a Subgrantee is on track to meet goals at the end of the initial term, an additional 18 to 24-month term may be awarded; however, the City will reserves the right to reallocate HPRP funds as it deems necessary to meet all HPRP program deadlines. ^ The City will require all recipients to utilize the regional Homeless Management Information System (HMIs). Using HMIs will help ensure 6 4/28/09 HUD-40119 19E-9 Substantial Amendment to the Consolidated Plan 2008 Action Plan for the Homelessness Prevention and Rapid Re-Housing Program (HPRP) consistent reporting of program participant information and also facilitate timely quarterly reporting. City Staff will also ensure that quarterly reports are submitted to HUD and that the Integrated Disbursement and Information System is updated quarterly. D. Collaboration 1. Briefly describe how the grantee plans to collaborate with the local agencies that can serve similar target populations, which received funds under the American Recovery and Reinvestment Act of 2009 (ARRA) from other Federal agencies, including the U.S. Departments of Education, Health and Human Services, Homeland Security, and Labor (limit 250 words). Response: ARRA provides funding opportunities for other federal agencies that provide resources to agencies that may serve similar target populations as those to be served by HPRP. To identify collaborative funding opportunities the City will work with the Orange County Continuum of Care Forum. The Community Forum is an entity comprised of agencies, individuals, and groups focused on eliminating homelessness in Orange County. The Community Forum has an open membership - this structure encourages broad and diverse participation. On average 100 public and private agencies attend quarterly meetings. Approximately 70% of attendees are nonprofit agencies; the balance represent local, regional, state and federal agencies (e.g., OC Department of Education, OC Health Care Agency, Orange County Workforce Investment Board -all entities that may be direct recipients or subgrantees of other ARRA funding). It is noteworthy that the Community Forum is the primary regional planning entity for HUD's annual Continuum of Care funding competition (SuperNOFA). A primary function of the Community Forum is to identify gaps in the regional Continuum of Care (CoC) and to prioritize these gaps for SuperNOFA funding. This regional role makes the Community Forum an ideal medium to collaborate with other ARRA- program administrators. By participating in the Community Forum, the City can ensure it works with regional HPRP recipients to inform potential applicants of funding opportunities and to discuss the requirement of HPRP to collaborate with other ARRA-programs that are serving the region's homeless and those at risk of homelessness. 2. Briefly describe how the grantee plans to collaborate with appropriate Continuum(s) of Care and mainstream resources regarding HPRP activities (limit 250 words). 7 4/28/09 HUD-40119 19E-10 Substantial Amendment to the Consolidated Plan 2008 Action Plan for the Homelessness Prevention and Rapid Re-Housing Program (HPRP) Response: Since 1998, Orange County has seen the evolution of a regional CoC for the purpose of identifying and prioritizing housing and service needs of the region's homeless and those at risk of homelessness. At the forefront of this regional planning process is the CoC Leadership Cabinet and the Community Forum Collaborative. The Leadership Cabinet and the Community Forum Collaborative were created to address homeless issues on a comprehensive regional basis. Key to this effort is the identification of the resources available throughout the region that can be used to address and reduce homelessness. They provide leadership and direction for the regional planning process and the marshalling of mainstream resources in support of the region's annual SuperNOFA CoC grant application to HUD. Other regional homeless-related initiatives addressed by the Leadership Cabinet and the Community Forum include implementation of the biennial Point-In-Time homeless count, Ten-Year Plan to End Homelessness, regional discharge planning efforts (jails, hospitals, foster care) and implementation of Orange County's HMIS. Because of the Community Forum's inclusive membership and the Leadership Cabinet's unique make up (comprised of representatives from the OC Housing and Community Development Commission, citizens, homeless service/shelter providers, the County Public Health Officer and County Homeless Prevention Coordinator) they are ideally suited to work in partnership with Santa Ana to utilize HPRP resources regionally, and in an effective and efficient manner. The City will work with the County to identify opportunities to utilize vendors/programs that present ideal opportunities to regionalize the effective use of HPRP funds. 3. Briefly describe how HPRP grant funds for financial assistance and housing relocation stabilization services will be used in a manner that is consistent with the grantee's Consolidated Plan (limit 250 words). Response: The City of Santa Ana's 2005/06 - 2009/10 Consolidated Plan identifies homeless programs as a high priority need. According to this document, the City has committed the use of federal resources, such as Community Development Block Grant (CDBG) and ESG to provide a continuum of services for the City's homeless and those at risk of becoming homeless. During the past four years the City has significantly funded emergency and transitional housing opportunities. To a lesser degree, ESG funds have been used to provide homelessness prevention assistance; however, HPRP funds will allow the City to address one of the gaps in its continuum of housing/services, i.e., access to permanent housing. The influx of HPRP funds, specifically for assisting individuals and families to access and stay in permanent housing is much needed. Utilizing a portion of the City's HPRP 8 4/28/09 HUD-40119 19E-11 Substantial Amendment to the Consolidated Plan 2008 Action Plan for the Homelessness Prevention and Rapid Re-Housing Program (HPRP) allocation to provide financial assistance and relocation/stabilization services is consistent with the City's Consolidated Plan. As envisioned, using HPRP funds will also support several Consolidated Plan sub- strategies including, addressing the needs of the underserved, implementing an anti-poverty strategy, developing and enhancing institutional structures, and enhancing coordination between public agencies, private entities, and community residents. Finally, requirements to mitigate lead-paint hazards and to eliminate barriers to fair housing will be addressed via HPRP-funded services/programs. 9 4/28/09 HUD-40119 19E-12 Substantial Amendment to the Consolidated Plan 2008 Action Plan for the Homelessness Prevention and Rapid Re-Housing Program (HPRP) E. Estimated Budget Summary HUD requires the grantee to complete the following table so that participants in the citizen participation process may see the grantee's preliminary estimated amounts for various HPRP activities. Enter the estimated budget amounts for each activity in the appropriate column and row. The grantee will be required to report actual amounts in subsequent reporting. HPRP Estimated Budget Summary Homelessness Rapid Re- Total Amount Prevention housing Budgeted Financial Assistance 1 $990,000 $990,000 $1,980,000 Housing Relocation and z 494 $327 $327 495 $654 989 Stabilization Services , , , Subtotal (add previous two rows) $1,317,494 $1,317,495 $2,634,989 Data Collection and Evaluation 3 $56,000 Administration (up to 5% of allocation) $141,000 Total HPRP Amount Budgeted a $2,831,989 ~ Financial assistance includes the following activities as detailed in the HPRP Notice: short-term rental assistance, medium-term rental assistance, security deposits, utility deposits, utility payments, moving cost assistance, and motel or hotel vouchers. ~ Housing relocation and stabilization services include the following activities as detailed in the HPRP Notice: case management, outreach, housing search and placement, legal services, mediation, and credit repair. 3 Data collection and evaluation includes costs associated with operating HUD-approved homeless management information systems for purposes of collecting unduplicated counts of homeless persons and analyzing patterns of use of HPRP funds. 4 This amount must match the amount entered in the cell on the table in Section A titled "Amount Grantee is Requesting." 10 4/28/09 HUD-40119 19E-13 Substantial Amendment to the Consolidated Plan 2008 Action Plan for the Homelessness Prevention and Rapid Re-Housing Program (HPRP) F. Authorized Signature By signing this application, I certify (1) to the statements contained in the list of certifications and (2) that the statements herein are true, complete, and accurate to the best of my knowledge. I also provide the required assurances and agree to comply with any resulting terms if I accept an award. I am aware that any false, fictitious, or fraudulent statements or claims may subject me to criminal, civil, or administrative penalties. (U.S. Code, Title 218, Section 1001) Signature/Authorized Official City Manager Title 11 4/28/09 Date HUD-40119 19E-14 Substantial Amendment to the Consolidated Plan 2008 Action Plan for the Homelessness Prevention and Rapid Re-Housing Program (HPRP) PUBLIC COMMENTS LOG PLEASE NOTE ANY COMMENTS RELATING TO THE SUBSTANTIAL AMENDMEN'1• TO THE 2008-2009 ANNUAL ACTION PLAN OR SEND YOUR VVRlTTEN COMMENTS r~0 TI-!E f=OE_LOb'VING ADDRESSED TO BF_ RF_CEIVED BY APRIL 27, 2009 AT 12;00 P.M: Frank Hernandez -Managernent Aide OR Terri Eggers --Senior Managernent Analyst 20 Civic Center Piaza, PA-2:5 Santa Ana, CA 92`l01 c,~s Y' ~~° (c , 12 4/28/09 HUD-40119 19E-15 Substantial Amendment to the Consolidated Plan 2008 Action Plan for the Homelessness Prevention and Rapid Re-Housing Program (HPRP) 0 PUBLIC • ~ LAW CENTER Prrnidinp ACCecs 7olunke for Orarye COUntys lniiincomenesbents April 10, 2009 Ms. Cynthia Nelson Deputy City Manager for Development Services City of Sallta Ana - CDBG Office 20 Civic Center Plaza 6th Floor Santa Ana, CA 92701 Dear Ms. Nelson: LEGAL AID ~~m~ SOCIETY °T'- a [ ~ ~ n x n x a x ~ u n r v C O.ai AIUNI Tl' i. F:d A I. 5F.%V IC GS OF SUUiII L'ASl LI)S ANO%~e5 cOIIN )'V RECEIVED APR 14.2009 We are wtiting to ask that both of oul• organizations, the Legal Aid Society of Orange County and the Public Law Center, be kept advised of any efforts nl the City of Santa Ana to determine uses of funding provided by the U.S. Department of Housing & Urban Development (HUD) under the Homelessness Prevention and Rapid Rehousing Ptogram (HPRP) created under the American Recovery and Reinveshnent Act of 2009 (Recovery Act). As you are probably aware, HUD announced on Marcll 19, 2009 that City of Santa Ana is eligible to 1•eceive $2,831,989 under the HPRP. These funds are designed to provide financial assistance and selvices to eithet• prevent individuals and families from becoming homeless ar help those who are experiencing homelessness to be quickly re-housed and stabilized. While no doubt the bulk of the funds will likely go to provide financial assistance directly to HPRP participants, HUD has made clear that legal services a]•e among the service activities that can be funded as part of a comprehensive service menu to be provided using HPRP funds. HUD's March I9 notice states at p. 17: "Legal Services. HPRP funds may be used for legal selvices to help people stay in their homes, such as services or activities provided by a lawyer or othel• pel•son(s) under the supervision of a lawyer to assist program participants with legal advice and representation in administrative or coup proceedings related to tenant/laudlord matters or housing issues. Legal services related to mortgages are not eligible." Both the Legal Aid Society of Orange County and the Public Law Center have a long history and the present capacity to provide legal services to help the residents of Santa Ana stay in their homes. We 1•equest that as you develop your plans for the use of HPRP funds, you include legal services in the range of services you choose to fund and that you include both of us on any distribution lists you use to publicize HPRP funding opportunities. We look forward to serving the residents of Santa Ana as they address their housing needs during this trying time. Very h•uly yours, Robert J. -open Executive Director Legal Aid Society of Orange County tr Kelu~eth W. Babcock Executive Director & General Counsel Public Law Center G01 Civic CenEer Drive West • Santa Ana, CA 92701-4002 • (714) 541-1010 • Fax (714) 541-5157 Federal Tax ID# 95-3709253 13 HUD-40119 4/28/09 19E-16 OMB Number: 4040-0004 Expiration Date: 01/31/2009 Application for Federal Assistance SF-424 version 02 "1. Type of Submission: '2. Type of Application ~ If Revision, select appropriate letter(s) ^ Preapplication ^ New ® Application ^ Continuation `Other (Specify) ^ Changed/Corrected Application ^ Revision 3. Date Received: 4. Applicant Identifier: 5a. Federal Entity Identifier: '5b. Federal Award Identifier: State Use Only: 6. Date Received by State: 7. State Application Identifier: 8. APPLICANT INFORMATION: 'a. Legal Name: City of Santa Ana 'b. Employer/Taxpayer Identification Number (EIN/TIN): *c. Organizational DUNS: 95-6000785 083153247 d. Address: 'Street 1: 20 Civic Center Plaza Street 2: *City: Santa Ana County: Orange "`State: CA Province: 'Country: USA `Zip /Postal Code 92702 e. Organizational Unit: Department Name: Division Name: Community Development Agency Administration Division f. Name and contact information of person to be contacted on matters involving this application: Prefix: Ms 'First Name: Nancy Middle Name: T. "Last Name: Edwards Suffix: Title: Assistant Director of Community Development Organizational Affiliation: 'Telephone Number: 714-667-2244 Fax Number: 714-647-6713 Email: nedwards@ santa-ana.org 19E-17 OMB Number: 4040-0004 Expiration Date: Ol/31/2009 Application for Federal Assistance SF-424 Version 02 *9. Type of Applicant 1: Select Applicant Type: City or Township Government Type of Applicant 2: Select Applicant Type: Type of Applicant 3: Select Applicant Type: *Other (Specify) *10 Name of Federal Agency: Housing and Urban Development 11. Catalog of Federal Domestic Assistance Number: 14.257 CFDA Title: Homelessness Prevention and Rapid Re-Housing Program (HPRP) *12 Funding Opportunity Number: *Title: Title XII of Division A of the American Recovery and Reinvestment Act of 2009 13. Competition Identification Number: Title: 14. Areas Affected by Project (Cities, Counties, States, etc.): City of Santa Ana, County of Orange, CA *15. Descriptive Title of Applicant's Project: Financial assistance and services to either prevent individuals and families from becoming homeless or help those who are experiencing homelessness to be quickly re-housed and stabilize. 19E-18 OMB Number: 4040-0004 Expiration Date: 01/31/2009 Application for Federal Assistance SF-424 Version 02 16. Congressional Districts Of: *a. Applicant: 46 & 47 *b. Program/Project: 46 & 47 17. Proposed Project: *a. Start Date: 07/02/2009 *b. End Date: 09/30/2012 18. Estimated Funding ($): *a. Federal $2,831,989 *b. Applicant *c. State *d. Local *e. Other *f. Program Income *g. TOTAL $2,831,989 *19. Is Application Subject to Review By State Under Executive Order 12372 Process? ^ a. This application was made available to the State under the Executive Order 12372 Process for review on ^ b. Program is subject to E.O. 12372 but has not been selected by the State for review. ® c. Program is not covered by E. O. 12372 *20. Is the Applicant Delinquent On Any Federal Debt? (If "Yes", provide explanation.) ^ Yes ®No 21. *By signing this application, I certify (1) to the statements contained in the list of certifications** and (2) that the statements herein are true, complete and accurate to the best of my knowledge. I also provide the required assurances** and agree to comply with any resulting terms if I accept an award. I am aware that any false, fictitious, or fraudulent statements or claims may subject me to criminal, civil, or administrative penalties. (U. S. Code, Title 218, Section 1001) ® ** I AGREE ** The list of certifications and assurances, or an Internet site where you may obtain this list, is contained in the announcement or agency specific instructions Authorized Representative: Prefix: Mr *First Name: David Middle Name: N. *Last Name: Ream Suffix: *Title: City Manager *Telephone Number: 714-647-5200 Fax Number: 714-647-6713 * Email: achristensen~santa-ana.org *Signature of Authorized Representative: *Date Signed: Authorized for Local Reproduction Standard Form 424 (Revised 10/2005) Prescribed by OMB Circular A-102 19E-19 OMB Number: 4040-0004 Expiration Date: 01/31/2009 Application for Federal Assistance SF-424 version 02 ''Applicant Federal Debt Delinquency Explanation The following should contain an explanation if the Applicant organization is delinquent of any Federal Debt. 19E-20 tNSTRUCTIU~4S FUR THE 5F-d2~ y td;c. reporting burden fcr this a:+;ec:.ion of infcx r7ation is estimakac tr wJerage dQ m notes p~rr rESpcnse. inclutling t me fo• revieti~• r g ^s:ruc;ians, s : rch ^+a existin datw sources. gat^~~ing and main:wining the data ne.-bed, anc corhp~ting and rev._vring tre aallectlcn or in#ormat~~«^, send ;~ r^in-~ents reaaroing t^- t• rz#en es:ir!a:e or a^y ot^.r aspect of this a:~ Iev.ion Hof infcrna:ion ie~:luding suggestions fcr reducing :his .,r~.en, t_ :hE ~L-'ice of il4anagement anc 6ud,y-:. -';Grr~x~~crk P,~.~ccicn Pr;,jec: fU34fi-CC~3), 4Va hingtan GC ~CcC3. PLEASE DU NUT RETURN YCYUR CUA~tPLETED FURAi TU THE OFFICE OF M11ANFGER1ENT AND B4JDGET. SEND IT TG THE A~?DRESS PRG'JIGEJ BY THE SPONSORIPIG AGENCY. -L•:s is a s:a~dart's Eo:~ I,i=cict3i31g ttlE t0~t3L7':1'st1aL' hee[;1 (EaIL'C?d iu: ;1:e as :~ Cc': ES :heel far sub~sias_ou of prEappl_cat:ous a aFp:.anec::,~d rEial2~ Illfil~l~Il•^. L' iiL'~ES ~1.'SC:E^.a73I}' p:C7 _°CiLt]s. ~C~L:2 8f :tYE 1:EIY15 '.Ce ZE~l'~TE{i. ~L'd .apsE ctE aL•tlaT 3~ 3: tLE d:SCTEA+73141 L7E :tpCl'_C 11t OC Ltlt FE ~E: ;11 •~'ceL' :.. t;a°eC1C,'j. R?q:l~Cad iC2115 37E 7dEL'L1^Ee3 sr1Ih aL' :sSCEr:S)i aL' :1E fOCl:l alid .1:2 SpECiSEd IZ' :he t:1~;F1..,,.rl.,~n y h~! a'.1'..1 .l~.'~1J:`-' :0 CLE 35CI11:~t:OllS DrOs7d?d Lea IC1,'. aj:~p'!l:an.C'i 331tli[i.G115tt1:.+?EL'C`~ 3`1"I,:CT1aIl: :0 .`~.E1?I?=L12 i}7E:_LC ?2t7'ikL E311?:3'S Lar: Entr,+: tent Entr°: Type of Submission: (Requ~•ec;l: SelECt anE type of st+miss.~ in 11. Warne Gf Federal Agency: !Raquirecl; Ent-rLhe ^aria o':he a ccerdance ~rri.h a+,_ncy ^s:ructions. =Ederal :bgency fR~:tir: sti•^ ~:h .,ssistance s being ~aquesfee ti*r1h '~r5a,~ pilad:icn :i1i5 app6catian. App ica:icn Changed;Correc:ed,~,pplicat:^ - if requested by the a3Ency, chec~ 11. Catalog Cff FedArat DomESti4 Assistance NumberiTitle. =:hissublrissicn sicc~^ar~gEC~raorrecta:•rev~~..slysubmitted =n:er:herv_tocc'=eclera G~_r. ast:~s3istarr_erar:.Era~~ apr ca:ian..tnless requestE~, by :he agency. a:~^Ilcar:ts may not :,ue of .Fe : ~_ ~rwlr un~:_• whic^ ass a.anca is re:•es:ecl. as use this :o submit changes ai'ter:he closing datE. found in the cragram w^^;7tmcr:e:., i' a.~c cab =. Type of Application: t;P,ecuirecfl SElect one type ~1f : pplicaticr in 12. Funding 4p•portunity NumbErJTitte: ;?Eq ad:l .^icr tr- accordance •rrl h agency :s:roc:ions. =unding Uppcruni:y PJ,.n7bEr and t :le a(t . cppc~^.uni:y unde• i•~:e«~ - ~~n .,c~plica:lcn t^~,t is being s..frii;tN. o a,r agE^ _y `tr :he tvhi r assistaa^:E is r?eu_3:ed, as sound in :I7e c+rc+gran°~ =irs::in•~e. ann,~s nye'rtiEn:. C:.ntr:;wtc~^ -r'.n exten=_ontaran acditc~+alsunding~"butlgE:,c«:riod 13. Gontpetetion identification Numberri'itle. =°tErt^_ gar a pre;_~a svitlt a projected a:~rtp Eiicn date. "M , ca,•r include Gorr -Brian Iden:ificatian Plu.niber and tide c.f 1hE a :p _:iticm rere.•+ais. unde° +,vhic^ as. stance is req:;as:Eil, i' ap cab a. evsicn r,ny c^ange.n :he Fedelas ticvernment's f,~?an:a cb `gaticr ar cal^tingEr*, iabilit~ from an E>:is:ing obligation f a re'vis~?n M1,1ore tr~.n cn_ rray be enter the apprapria a ei-En;=_;I , . s_lected. It _:her' is selectE.. W lease specrj rn text to ,.rav ~ed. 1~. Areas Affected By Project: List th- areas ~1r E^:itie=_ using A Ino'reas_ Fward 3. G_+.rease.Avran. :he categories (E.g., cities.:a..rties, sta:E= etc.i scec clod in. C Increase Curvet+~n D. L'~ecrease Curator age^cy nstra ;:ions. Use :he cos^:in:.lation sra_t to En =r E. Cher is eCi, add.:ianal areas, if nEEu'~;. ~. Date Received: ~Eave t'?is fE-+~ bla^x. This elate wril! be assigned by t~^e 1v. t}escriptive Title of Applioant's Project ;REC.,.•ed =^ter:: Fedora age^: f. brief cescriptivE tale ~f t^e pre w:, f apprc ,:,te, atsc^ a map shc~rring pr.ject iot:ation fe.g., .;cnst-~ aicm c- rEa 4. Apptiaant Identifier. Ert_r the entity iden:ifa-~ asa~~^ed t•y ihE Federal prcc _~tt pr.:jECts). Fcr preac:~ cations, a:-act. a s<:rimar~ agency.. it ar y c' appfcan:'s a:w-trcl nurr:iaer, if api;~ cab _. desc^ Laic ^ a° .he c•.•oiec:. F~a Federal Entity Identiirer: =nier the ^.r:n76Er assig;red:a your 1d. Gongressianat Districts l?f: iRequirEd; 18a =n:Er the organizatic,r by :he Fed~•al Age:-,:.•y, if an•y. app cant's Car~gressi~:~_;! t~,is;riot ar,; 1? ,. =nte• a. C ~.•,ct(s, `.~;,. Federal Award 1d~entifier:.=ar rerr applicatcc^s leave bla^;,;, '=or a artect_d by :Ito program cr pr;EC:. Enter in t^e ~onr~,t C ccn:inuatian :+r ray+islan o an Exi=tiny wtvwrcl, En;Er ihE pre'dtOllSy Ct4araCterS =:a e.''~.bbrE4'a11C^ - :~ CltafaCt i DISt': t'~UI'^CEr, assigned Fa~erai ;~rrard iden:ifer number f a cha^ged~correcte: e en.. ~`,4-~'-`-• •~ va;i°ornia 51i clstr[ CAS:' ~ `or Ca fom;a 1^_`' appli wucn, _^ter t^E :Federal Iconic ter in aca:~rJaI1CE 5~'rt^ age°•.a dist•=a, h!G-102 f=.•;`uort^ C.aralina's '~: ~"' . style:. nstnrcticns. I' a congress ~:~^a! disc cts in ., state 3•e a?fac:Ell, En:Er 5. Date Received try Stale: LEwve :his f Eld •c~ ark. ?his dare ~v~ be 'all' fcr t^a alsirct number. E.g , fA=~-~It f:a• all sssitned b••tr,e C:a:e, Ito IlCable. :''r~sfE551anal tIIStTtatS intviarr'wnd. r. State Application Identifier: Lea•.+e :his field blank. -h s denttier .r I` ~:,aticn•rridE .E. aI tlistncts •rx:hin a:= states a-a ale:tae, t•e assgned ty tie :;-ate, if applicable. Enter',;:~-al! Is :he pragramrc•^a ec: s utside th_ L'~ Enter C=-:~2;i {. App#icant Information =rter t^E f;yllavy~ing r accc•cancE wth agency , , . r~s:rum lens: a. Le•gaI Nance. (RequirE+.;: EntEr the egal ea,rne of ap.• cant chat will 1?. Proposed Project Start and End Dates:. P.E•SUire I Grua=:i,:- ndErtakE t^ _ ass stone= act •,+ity. This is the nari that t'ra cry a^¢ation pre:c«,sEd star. date and eni cai~ of thY ;. , ~•c:. ^as registerec wit•! the i:Entral ~cntractcr Registry Iniorn•~wpa^• on •epis:erin vv :h CuR mw" be c+btwined tr v.siti ;t7e Grants ^rcv websitE b Employen`Taxpayer Nurnbgr (EINtTIN): (Required; ~°+iartha =rip .:+yer or Taxpayer den:iflcat~an Rurnber ?,Elh ~ TID:) as assigned br 12. Estimated Funding: iRequir~;~ =nor the alraunt requastEw :he In:ema ReVF ,.;; ;3Er.+icE. If pour ~.x•aanizaticn is nc: n the S, e:^ter ar t~y bE ;atributEd during the F~•sa #unding:budge; .•eriocl uy 4-f-14r.4~ =4. Each con;ribu*.ar. 'dalu=_ a' in-kind cEa^.:ribu:cans should be c. prganizational DUNS: {?equired; En:erthe argarrizat:+n's CUI":5 ~-~r indutlEd an apprapria:E nES. 3s applicablE Ft^_ act •^ ,*rill D'~'N'_=+; rurLbE<r re~~EivEd from.. Cun and 3rads:ree:. In=orr:_,:ion on result in a v~Ilar changE bo an exis`.ing a:yara. ndl:-ate or,1 j the sbtar ^g a CUM1S;~,ursber maybe abtained'cyvsitng :he Grants gav amount c':IAe char,gE. Fcrde:reases, enc:sE t^_ amounts +n •rrebsit-. parr^:hexes. d. AddrESS: Enter :he c,:,rnplE:E address as fvlt~:~5: Gtreet add :ss ;'_rre rec ~edt, Clt? ;?equ - I Ca~unty, S:ate (Required f coon ry I_ JSI, t ty. is Application Subject to Review by State Under ExECUte•~e - rav _e ~aun.ry t;P,rqulred;. %iplFas:al C:x:e (IF:egwr_~3. if ,.~.. trt -~ Urder 12372 Procass? r:pp cants s;~-oultl ~cn:ac: the '~.tate `I'~' 3in = c f Ccn:act t I P+ is ar F er~i > c t o d e.OrganizatianalUnit_ En:Er:henarr<ECf:IYEprirrwryargan~ational g u .: o _ u e r er 123?~.ow_:emtiine~~•^_:he•t^ea.,.fi,a:icn = ., :h? snit land de arm~ent ar civisicn i' a~~;~licat~e :hat will urcenv*:e the ' 19E-21 assis:anve ac:rvir . i :. livable. S:ata intergovernmenta n=_+.ie~~~ prccess _~*.:he f. Name and contact inforrnatian of person to 6e canta~vted an apprW-«p+riats bcx. I' `a.' s se ~cte:i, enter :he not. the matters involving this application E.^:er t~^_ name (Frst and last: name app ,avian ~r+as subn•;i[:ed tc t^+ '*.r~t= -eawred; c~•~~anizaticn~ a~i~lition iif affiliated ti~+ith an c•~jani~a:ion at^?r than tr_ apa can: ~rganizaticn j.:elepnone n,imber «:Reauired; iax ~'tl. Js the Applicant Delinquent an any Fetleral Debt? rurr,~, and era! add _ss {-:equire~:j c~-':he persc~n:o con,.<c: an i=;etluiredy Seie~_ttre a~~wrapna._ ~ ~s: This Guest+vn a:.eiies t: n~atr:~s relatd:0'1115 .a:~fia;icn :i-~e a;~p6ca.^z argani~.t~:~n. net the ;._rsc^ ~x•hv+signs as :he au:hvr~ed r_pressnta r;t. r~ategc• _s .f :Ieb: include del--~.cuenk audit ~.i=_a c~r+anves. 6can=_ and texes. f ~•es, invJUde an _:a ~a^a:ivn cn th_ curt ^..aticn s^e-t. 2. Type o' A~•c~ can:: «;P,eauired} 21. Ausharized Representative: =eau ~rr_d'~ T o c•e signed anal 'elec. ,,p to :hre= appiECant:yp„s; in 3+.c~r;,ante tivitr agr4,y dated t+y t~ _ au:hcr~ed represernative ci :I7e avplivart ns:n«vticns. vng ;^ za:ion. Enter the name ;First and lass ^a^,. requ :•ac 5tat_ 3c•aernment M. N+c~nprof: vn:h `+~1C31RS *.rile iRequired;..:eleph~:~^ number (R_quiredi 'a:< n~.iml7er ~`uunty Govemn^=Ent St"atUS ; :'ther t'tan In517'UCC+^. and 21t'~~II u;.~re55 EReC'~«rE~l ^-~f ih~a pefSCn aLtt^._riZEC t~ Sizln C.it,+ tir To~~~a^shi~, Gci~ernment of 'r'igher Eduvavia^; `or :I7e .;pplivar~t.. '~ Sr~,:ial Cs:nct v+3vemrnen: h'. N~vnprof: tivi:hau.. t v3 IRS A cc•:;y of t^+e gcvemrng body's au:horr_atc~r. =or yvu tc sign - Regicnai C+rgan::a:ian Status ;Sihe•tran Institut+.~ ;!-us appiicatan as the vr«cidl • ire=__^:a,iv~ n°,us: t cn f e ~n .. -~rr•ory cr Pcssessian of ,-ipher Educ3tia^. ~ the a~•pli:-a,^t's cffce. ,Certain Federa ag :^+:ies ~riay rec.i.*e ndepenc~nt Svr.+~I L«is:rivt ~~. Pri+W~ate I s:it.s:ion of H gher that t^i_ xut^ariza:icn be submiCed as par, =i the app _atlon.; H~ _..~~ c,5ta:e «~v*trcliec Educat;,r, r,s:it~tivr os--igherEcluvahc~ P i~+i~i~,al ndian;hJa:i',eAmericanTriba ~a. F+r-Profi+'~,rganl~at+:V" Gc•aemmen:~,=ederary if3ther:hanSrc,all?.siness =tea. gn¢~: « -.. ;rc,ail ?.,sin _ ss ~I ndian,tJa:iu•e Amehcan Triba >ry. Hspa~*.._-ser; a-g nsci:utic+^ Gavemmens ~;Ct:her than, T. H storivaliy E•lavk Ca egos =ederaliy Rec.gni~edi and Ur •uersit:_s HSvUs', ndian.tJa:ive An7ehvan .,. Trbaliy Cant,^,~ Ie;I C:clleges Tribalhr C~esgnated and U:^•uersites i-CCUs;« ~,-,area;ion ti~". lila5ka Native and Patve _. '..~ cand an -,ousirtg Har,•+ai a.~ Se-,~ing Ir titu:icns Au:hvri:y ... N+:.n-dan•es:iv (ncn-°JSi Entitt 19E-22 Homelessness Prevention and Rapid Re-Housing Program (HPRP) Certifications The HPRP Grantee certifies that: Consolidated Plan - It is following a current HUD-approved Consolidated Plan or CHAS. Consistency with Plan -The housing activities to be undertaken with HPRP funds are consistent with the strategic plan. Confidentiality - It will develop and implement procedures to ensure: (1) The confidentiality of records pertaining to any individual provided with assistance; and (2) That the address or location of any assisted housing will not be made public, except to the extent that this prohibition contradicts a preexisting privacy policy of the grantee. Discharge Policy - A certification that the State or jurisdiction has established a policy for the discharge of persons from publicly funded institutions or systems of care (such as health care facilities, foster care or other youth facilities, or correction programs and institutions) in order to prevent such discharge from immediately resulting in homelessness for such persons. HMIS - [t will comply with HUD's standards for participation in a local Homeless Management Information System and the collection and reporting of client-level information. Signature/Authorized Official Title Date 19E-23 GENERAL CERTIFICATIONS FOR STATE OR LOCAL GOVERNMENT FOR THE HOMELESSNESS PREVENTION AND RAPID RE-HOUSING PROGRAM (HPRP) In accordance with the applicable statutes and the regulations governing the consolidated plan regulations, the state, territory, or local government certifies that: Affirmatively Further Fair Housing -- The state, territory, or local government will affirmatively further fair housing, which means it will conduct an analysis of impediments to fair housing choice within the jurisdiction or state, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting that analysis and actions in this regard. Drug-Free Workplace -- It will or will continue to provide adrug-free workplace by: 1. Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition; 2. Establishing an ongoing drug-free awareness program to inform employees about: (a) The dangers of drug abuse in the workplace; (b) The grantee's policy of maintaining adrug-free workplace; (c) Any available drug counseling, rehabilitation, and employee assistance programs; and (d) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace; 3. Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph I; 4. Notifying the employee in the statement required by paragraph I that, as a condition of employment under the grant, the employee will - (a) Abide by the terms of the statement; and (b) Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction; Notifying the agency in writing, within ten calendar days after receiving notice under subparagraph 4(b) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to every grant officer or other designee on whose grant activity the convicted employee was working, unless the Federal agency has designated a central point for the receipt of such notices. Notice shall include the identification number(s) of each affected grant; 6. Taking one of the following actions, within 30 calendar days of receiving notice under subparagraph 4(b), with respect to any employee who is so convicted - (a) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or 19E-24 (b) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, state, or local health, law enforcement, or other appropriate agency; 7. Making a good faith effort to continue to maintain adrug-free workplace through implementation of paragraphs 1, 2, 3, 4, 5 and 6. Anti-Lobbying -- To the best of the state, territory, or local government's knowledge and belief: No Federal appropriated funds have been paid or will be paid, by or on behalf of it, 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 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 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, it will complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions; and 3. It will require that the language of paragraphs 1 and 2 of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. Authority of Local Government, State, or Territory -- The submission of the consolidated plan is authorized under state law and local law (as applicable) and the jurisdiction or state possesses the legal authority to carry out the programs under the consolidated plan for which it is seeking funding, in accordance with applicable HUD regulations. Consistency with Plan -- The housing activities to be undertaken with HPRP funds are consistent with the strategic plan. Section 3 -- It will comply with section 3 of the Housing and Urban Development Act of 1968, and implementing regulations at 24 CFR Part 135. Signature/Authorized Official Title Date 19E-25 APPENDIX TO CERTIFICATIONS INSTRUCTIONS CONCERNING LOBBYING AND DRUG-FREE WORKPLACE REQUIREMENTS: A. Lobbyin~ Certification 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. B. Drug-Free Workplace Certification 1. By signing and/or submitting this application or grant agreement, the grantee is providing the certification. 2. The certification is a material representation of fact upon which reliance is placed when the agency awards the grant. If it is later determined that the grantee knowingly rendered a false certification, or otherwise violates the requirements of the Drug-Free Workplace Act, HUD, in addition to any other remedies available to the Federal Government, may take action authorized under the Drug-Free Workplace Act. 3. Workplaces under grants, for grantees other than individuals, need not be identified on the certification. If known, they may be identified in the grant application If the grantee does not identify the workplaces at the time of application, or upon award, if there is no application, the grantee must keep the identity of the workplace(s) on file in its office and make the information available for Federal inspection. Failure to identify all known workplaces constitutes a violation of the grantee's drug-free workplace requirements. 4. Workplace identifications must include the actual address of buildings (or parts of buildings) or other sites where work under the grant takes place. Categorical descriptions may be used (e.g., all vehicles of a mass transit authority or State highway department while in operation, State employees in each local unemployment office, performers in concert halls or radio stations). 5. If the workplace identified to the agency changes during the performance of the grant, the grantee s11a11 inform the agency of the change(s), if it previously identified the workplaces in question (see paragraph three). 6. The Grantee may insert in the space provided below the site(s) for the performance of work done in connection with the specific grant: Place of Performance (Street address, city, county, state, zip code) Check if there are workplaces on file that are not identified here. The certification with regard to the drug-free workplace is required by 24 CFR part 24, subpart F. Definitions of terms in the Nonprocurement Suspension and Debarment common rule and Drug-Free Workplace common rule apply to this certification. Grantees' attention is called, in particular, to the following definitions from these rules: 19E-26 "Controlled substance" means a controlled substance in Schedules I through V of the Controlled Substances Act (21 U.S.C. 812) and as further defined by regulation (21 CFR 1308.11 through 1308.15); "Conviction" means a finding of guilt (including a plea of nolo contendere) or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes; "Criminal drug statute" means a Federal or non-Federal criminal statute involving the manufacture, distribution, dispensing, use, or possession of any controlled substance; "Employee" means the employee of a grantee directly engaged in the performance of work under a grant, including: (i) All "direct charge" employees; (ii) all "indirect charge" employees unless their impact or involvement is insignificant to the performance of the grant; and (iii) temporary personnel and consultants who are directly engaged in the performance of work under the grant and who are on the grantee's payroll. This definition does not include workers not on the payroll of the grantee (e.g., volunteers, even if used to meet a matching requirement; consultants or independent contractors not on the grantee's payroll; or employees of subrecipients or subcontractors in covered workplaces). 19E-27 19E-28 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 4, 2009 TITLE: DOWNTOWN SANTA ANA BUSINESS IMPROVEMENT DISTRICT 2009 ANNUAL REPORT AND AGREEMENT WITH DOWNTOWN INC. CITY MANAGER RECOMMENDED ACTION 1. Approve the 2009 annual report. CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 15f Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For CONTINUED TO FILE NUMBER 2. Direct the City Attorney to prepare and authorize the City Manager and Clerk of the Council to execute an amended agreement with Downtown Inc., a non-profit corporation, in the amount of $205,000, subject to non-substantive changes approved by the City Manager and City Attorney. COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION ACTION At its Regular Meeting of April 21, 2009, by a vote of 5:0, the Community Redevelopment and Housing Commission recommended that City Council (1) approve the 2009 annual report and (2) authorize the City Manager and Clerk of the Council to execute an agreement with Downtown Inc., a non- profit corporation, in the amount of $205,000, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION On February 6, 1984, the City Council adopted Ordinance No. NS-1715 pursuant to Section 36500 et seq. of the California Streets and Highways Code, creating a Business Improvement District (BID) in Downtown Santa Ana. The BID allows the businesses to assess themselves in order to raise funds for the promotion and improvement of the Downtown area. The enabling statute calls for an advisory board to make recommendations to the City Council on the expenditure of revenue derived from assessments, the classification of businesses, and the method and basis of levying assessments. The advisory board also has a report prepared which it files with the Clerk. The report includes the name and boundaries of the BID, the activities and their cost proposed for the coming year, the method and basis of levying and collecting the assessments, and basic 19F-1 BID 2009 Annual Report and Agreement with Downtown, Inc. May 4, 2009 Page 2 financial information covering such things as prior year surplus or deficits and non-assessment revenue. The critical factor behind the success of BIDS is that district stakeholders control and manage their own programs and budget. In nearly every BID in California, district stakeholders - those businesses actually paying into the district - are designated as the advisory board. Until October 2003, the Downtown Santa Ana Business Association (DSABA) fulfilled that role. When DSABA wound down its affairs as an active stakeholder group representing the greater Downtown in general, and the BID in particular, the Council appointed the Community Redevelopment and Housing Commission as advisory board to fill the void. In April, a Business Improvement District service agreement for $25,000 was executed with Downtown Inc. to facilitate the immediate need for enhanced security and a Mother's Day promotion. A total balance of $205,000 of carry forward 2007/2008 BID funds remains available to be programmed for marketing, promotion and other activities of benefit to the Downtown Santa Ana Business Improvement District. In order to expend the remaining carry forward funds, an annual report must be approved by the City Council. It is proposed that the remaining funds be allocated to Downtown, Inc. for implementation in accordance with the budget (Exhibit 1). Downtown, Inc. is the newly formed non- profit corporation that will oversee administration of the Community Management District which is the funding mechanism enacted in recent months to replace the BID for Downtown activities and improvements. The board of Downtown, Inc., in consultation with other stakeholders in the Downtown, has identified four primary categories for funding: 1) Clean and Safe; 2) Holiday Decorations; 3) Bicycle Racks; and 4) Promotions and Marketing. The Clean and Safe funds will be used to enhance security in the area during late weekend evening hours. This will be accomplished with a private security company under contract with Downtown, Inc. The holiday decoration storage, installation and removal and bike rack installations on Second Street Promenade are outstanding obligations to be assumed under the proposed contract. The balance of the funds will be used for marketing and event promotions. 19F-2 BID 2009 Annual Report and Agreement with Downtown, Inc. May 4, 2009 Page 3 FISCAL IMPACT Funds are available in the Downtown Business Improvement District Trust & Agency Reserve account (no. 093-01-3611). APPROVED AS TO FUNDS AND ACCOUNTS: C Cynthia J. elson Deputy City Manager for Development Services Community Development Agency Francisco Gutierrez Executive Director Finance & Management Services Agency CJN/NTE/TE/mlr 19F-3 _ _ „x _ .~~,.;_ ..... ,. .. DOWNTOWN SANTA ANA. BUSINESS IMPROVEMENT DISTRICT 2009 ANNUAL REPORT Background The Downtown Santa Ana Business Improvement District (BID) was established in February 1984 by the City Council as a means of providing the Downtown business community with funding for promoting the area, increasing security, enhancing maintenance, and implementing physical improvements. The Community Redevelopment and Housing Commission (CRHC) is the BID Advisory Board. Improvement Area Boundaries The geographic boundaries of the district remain unchanged from the original 1984 area, and they include over 700 retail, service, and professional members (Exhibit A). Method and Basis of Levying Assessments • Assessment Formula The formula for the BID tax levy also remains unchanged from the original 1984 ordinance and is based on the category and/or sales volume of the business as follows: The following businesses located within the boundaries of the BID, classified under City Ordinance NO 1690 as Amusement Services, Pawnbrokers, Service Station and Classification A including, but not limited to, Retail Sale of Goods, Hotels and Motels, Theaters and Food Establishments, shall pay an amount equal to one and one-half times their annual business license fee. Businesses classified as Commercial Rental Property, Rental Property, Residential and Rooming House shall pay an amount equal to their annual business license fee. All other businesses, including Professions, Trades, and Services within the boundaries of the proposed Business District, shall pay an amount equal to their annual business license fee. Once the assessment formula is established, it cannot be changed without written notice to all businesses within the boundaries of the proposed BID and a public hearing held by the City. • 2009 Assessment Levy Due to the carryover of unprogrammed funds from 2007 and 2008, there will be no assessment levied or collected in 2009. 19F-4 EXHIBIT 1 Summary of Activities and Improvements All programs and activities for the year 2009 can be classified in the following broad categories: • "Clean and Safe" o Supplemental security for weekend nights o Supplemental maintenance Events and Promotions o Holiday celebrations o Merchant promotions o Social celebrations o Seasonal events o Arts and music Publicity, Advertising, Marketing, and Outreach o Newsletters o Website o Visitor guides/maps o General advertising Physical Amenities o Street and skyline banners o Holiday decorations o Bicycle Racks • Economic Development o Business assistance 2009 Budget Plan Downtown Inc. is a new nonprofit corporation composed of downtown stakeholders dedicated to downtown economic revitalization. They led the successful effort to form a Community Management District (CMD), and this group has requested designation as the recipient/management organization of the CMD funds. Downtown Inc., as the sole community based organization for downtown, will be the contract agency for the BID funds. With the onset of the CMD, the BID will be allowed to dissolve. It is anticipated that this will be the final year of programming utilizing BID funds. Downtown Inc., even though it is developing new activities and a new approach to revitalization for 2010 and beyond, intends to use these funds for programs and activities similar to those implemented over the past few years. Working together, Downtown staff and stakeholders developed the 2009 Budget. 19F-5 2009 Budget Summary REVENUE Prior year operating surplus $205,000 TOTAL REVENUE $205,000 EXPENDITURES Overall Downtown "Clean and Safe" programming Prior Holiday Obligations (Decorations) Prior Obligation/FFE (Bicycle Racks) Promotions and Marketing TOTAL EXPENDITURES $ 90,000 13,000 5,000 97.000 $205,000 19F-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 4,2009 TITLE: APPROPRIATION ADJUSTMENT ACCEPTING ICMA PUBLIC LIBRARY INNOVATION GRANTS FUNDS W - CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1St Reading ^ Ordinance on 2nd Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER Approve an appropriation adjustment accepting ICMA Public Library Innovation Grant funds of $59,846 in revenue account (no. 153-01-5378) and appropriate same to expenditure accounts (nos. 153-248 various)for the Connect!: Connecting Yourself with Your Future program. DISCUSSION The International City/County Management Association (ICMA)Public Library Innovation Grant program leverages the potential of public libraries to deliver services in non-traditional areas such as technology, public safety, economic development, health, immigration, civic engagement, and sustainability. The Santa Ana Public Library was awarded a $59,846 ICMA grant for its Connect!: Connecting Yourself with Your Future program. The goal of this program is to create community sustainability by providing young people with the basic tools needed to help them advance economically. This program will provide technology-based educational and workforce-preparation programming to teens & young adults to assist them with their higher education and economic development goals. The program will also encourage civic engagement in older young adults through targeted volunteerism. FISCAL IMPACT The appropriation adjustment will enhance the library grants revenue account (no. 153-01-5378) and the expenditure appropriations for the Salaries & Wages Temp., Operating Materials & Supplies, and the Machinery & Equipment accounts(nos. 153-248-various). Rob Ri and Executive Director Library APPROVED AS TO FUNDS AND ACCOUNTS: _~ z Francisco Gutierrez /~ Executive Director Finance & Management Service (Agency 20A-1 20A-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 4, 2009 TITLE: APPROPRIATION ADJUSTMENT FOR AMERICAN RECOVERY AND REINVESTMENT ACT YOUTH FUNDS CITY ANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1 S` Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER Approve an appropriation adjustment recognizing $2,078,030 in American Recovery & Reinvestment Act youth funds awarded to the City of Santa Ana WORK Center. DISCUSSION In April 2009, the State of California awarded the City of Santa Ana WORK Center $2,078,030 in American Recovery & Reinvestment Act (ARRA) youth funds. These funds will be used to provide summer work experience to 400 Workforce Investment Act eligible youth between the ages of 14-24. Participants in the program will receive paid work experience that will allow them to gain basic work skills and learn the meaning of good work habits. Youth will receive exposure to the relevance of education to successful employment and career guidance. FISCAL IMPACT Upon approval of the appropriation adjustment, funds will be available in the WIA ARRA Youth Funds account (no. 123-235-various). APPROVED AS TO FUNDS AND ACCOUNTS: Cy hia J. elson Deputy City Manager for Development Services Community Development Agency Francisco Gutierrez Executive Director Finance & Management Services Agency CJN/LAS/SB 20B-1 20B-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 4, 2009 TITLE: APPROPRIATION ADJUSTMENT ACCEPTING FY 2008/09 CAL-GRIP GRANT FUNDING PROGRAM -7 _ ---~ CITY MA AGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 15` Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER Approve an appropriation adjustment recognizing the FY 2008/09 California Gang Reduction, Intervention and Prevention Program Fund (CAL GRIP) in the amount of $400,000 into the revenue account (no.155-O1-5373) and appropriate same into the expenditure accounts (nos. 155-367-various). DISCUSSION The State of California, grant funding to state law Reduction, Intervention a competitive grant program gang and youth violence organizations with a heavy Office of Emergency Management Agency provides enforcement agencies through the California Gang nd Prevention Program Fund (CAL GRIP). This is part of the State's commitment to combating and is awarded to cities and community-based concentration of gangs. The Santa Ana Police Department's Police Athletic and Activities League (SAPAAL) in a collaborative effort with additional government agencies, educational partners and community based groups, submitted and has been awarded CAL GRIP grant funding. This funding will provide the SAPAAL and its partners with the resources to enhance its established gang prevention and intervention programs with the objective of increasing participation of at-risk youth by as much as 200. This two-year grant requires a 1000 match on the part of the City. The Police Departments in-kind match includes the salary and benefits of one Police Officer, and a portion of the SAPAAL Assistant Director position. Funds from this match requirement are budgeted in the General Fund and the Police Criminal Activity Fund. 20C-1 CAL-GRIP MAY 4, 2009 Page 2 FISCAL IMPACT Approval of the appropriation adjustment will increase revenues in the CalEMA - Gang Reduction, Intervention & Prevention FY 2008/09 revenue account (no. 155-01-5373) by $400,000 and increase the same into the expenditure accounts (no. 155-367-various). The matching requirement will be derived over a period of two years from the Police Training General Fund account (11-334-various), and SA-PAAL account (24-333-various) and the Criminal Activities Asset Forfeiture account (26-345-various). APPROVED AS TO FUNDS AND ACCOUNTS: Paul M. Walters Chief of Police Police Department ~-~ _~ Francisco Gutierrez `/ Executive Director Finance & Mgmt. Services Agency ~j i 20C-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 4, 2009 TITLE: APPROPRIATION ADJUSTMENT FOR WORKFORCE INVESTMENT ACT ADDITIONAL FUNDS - CAPACITY BUILDING CI MANAGE RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1ST Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For CONTINUED TO FILE NUMBER Approve an Appropriation Adjustment recognizing additional revenues of $41,000 from the State of California to provide capacity building for the Integrated Service Delivery Learning Labs. DISCUSSION In January 2008, the City of Santa Ana W/0/R/K Center was selected to be one of the twelve One Stops to participate in the Integrated Service Delivery Learning Lab pilot program. Since July 1, 2008, the W/0/R/K Center has been operating as an integrated One Stop Center under the pilot program. The State of California Employment Development Division has allocated capacity building funds to the twelve Learning Labs in California. The allocation awarded to the City of Santa Ana W/0/R/K Center learning lab is $41,000. These funds are to be used to provide staff development training to enhance the competencies of the staff who administer workforce preparation programs under the Integrated Service Delivery Learning Lab pilot program. FISCAL IMPACT Upon approval of the appropriation adjustment, funds will be available in the WIA One Stop Capacity Building account (account no. 123-217-various). 20D-1 AA - WIA Additional Funds - Capacity Building May 4, 2009 Page 2 Cynthi J. Ne son Deputy City Manager for Development Services Community Development Agency CJN/LM/kg APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 20D-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 4, 2009 TITLE: CONTRACT AWARD FOR PRINTING AND MAILING ANNUAL WATER QUALITY REPORT (SPEC. NO. 09-022) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 151 Reading ^ Ordinance on 2~d Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER Award a contract to Mundorff Graphics d/b/a Dakota Press for the printing and mailing of the 2008 annual water quality report in an amount not to exceed $28,250. DISCUSSION The Public Works Agency's (PWA) Water Resources Division delivers fresh water to the city through a system that includes 450 miles of pipeline and 21 groundwater production wells. In compliance with the Title 22 of the California Code of Regulations, the City is required to mail an annual Water Quality Report to all water customers. The report covers statistical information, an explanation regarding where drinking water comes from, as well as helpful tips on conservation. As was the case for the previous report, PWA has developed a 12-month calendar for the 2008 Water Quality Report. The calendar, beginning July 2009, will serve as a continual reminder promoting water conservation, rebate programs, composting, fall planting, adopt-a-park events, holiday and other recycling programs, Earth Day, graffiti programs, and water education programs throughout a twelve month period. Bids were solicited and opened on April 15, 2009, and evaluated (Exhibit 1) A summary of the bid invitations and bids received is as follows: 12 Invitations For Bid mailed 2 Invitations For Bid mailed to Santa Ana vendors 9 Bids received The bid received from Mundorff Graphics d/b/a Dakota Press is responsive to the specifications and meets the City's requirements. A five percent contingency is included for unexpected over run and additional mailing quantity. 22A-1 Contract Award for Annual Water Quality Report May 4, 2009 Page 2 FISCAL IMPACT Funds are available in the Water Quality & Measurement account (no. 64-578- 6391) . APPROVED AS TO FUNDS AND ACCOUNTS: 0 ~ 1 ~~~s~~ . $.~~ Jame G Ross ~jcFrancisco Gutierrez Exe ut' e Director Executive Director Pub,~i Works Agency Finance & Mgmt. Services Agency KM/09-022 22A-2 ABSTRACT OF BIDS - - _--.. - -. CONTRACT AWARD -- - . - _ ~ - - __ -_ _ _ I --_ - - PRINT & MIAL ANNUAL ----- - _ -__ WATER QUALITY REPORT (SPEC. 09-022) , - - -- - _ __ { - - - _- _ _- ! ..TAXABLE _ ~ - - - _ TAXABLE ~- 1------ j ~' ,_ 8.750 _ , --- - _ + ~ - - -+ -- l 42M _ _ MAIL SALES ' LESS COST VENDOR / LOCATION I TERMS EXCESS BASIC. PREP. TAX TOTAL TERM - - _ 44,100 RATE RATE DISCOUNT , - - RUN DAKOTA PRESS ~ - - _ ,_. NET 30 ', 421 . 91/M ! $22 , 150 $ 1, 705 $ 2 , 087 $ 25, 942 $26, 906 SAN LEANDRO __ --_- PACIFIC GRAPHICS NET 30 ~ 537 96/M, $23,736 $ 1_,534 $ 2,211 $27,481 1 $28,710 CITY OF INDUSTRY I ' _. I -_. , + ___- . VALLEY PRINTERS NET 30 933.08/MI $25,772 $ 1,965 $ 2,383 I $29,620 _ ---- $30,609 RIVERSIDE - -- ' ~ I i THE PM GROUP 2$ 20 500.55/M I - $ 27, 045 $ 2, 297 $ 2, 567 $ 31, 909 S 31, 271 --_ $ 32, 392 LAKE FOREST ~ - - ~ ' -- OFF BROADWAY PRNTG ~ NET 30 _ _. 1,000. /M ', - --. $28,585 $ 1,575 _ $ 2,639 _ $32,799 - - _ $35,083 SHERMAN OAKS I -- - - - _ i _:_ - _ __ _- - MAILING US. INC NET 30 , $ 1,365 $28,980 ', $ 1,250 $ 2,645 $32,87.5 __ ~ $34,360 _ -_ ANAHEIM __ - - LESTER LITHOGRAPH - -- --- { -_ NET 30 __ -, I $31,317 I _ INCL I $ 2,790 $34,057 ~I __ ANAHEEM i WOODRIDGE PRESS NET 30 - - 731.97 /M ,_ - $3.0,954 $ 2,936 - $ 2,_922. $36,312 , __ ANAHEIM ~ I - + - __ -- - -, _ - , _ - DIRECT ADVERTISING ~ NET 30 ~ 88.00/M ~ $37,110 $ 2,377 $ 3,955 ! $42,942 ANAHEIM __ . _ - FINAL AWARD _ $26,906.. -- __ _', S~ - -- $ 1,345 NEWPORT DIRECT MAIL ' - - - - NON-RES PONSIVE - NO CALENDAR SAMPLE I NCLUDED ~, AWARD $28,251 SANTA ANA ~ ` I I ~___ _ I 4 _ I __ _ t ~_-_ --- - -- - - - -- - ~ 1 - _ --- SUMMARY OF BID AWARD DAKOTA PRESS _ --- TOTAL AWARD IN THE AMOUNT OF. _ - __-- --- _ - --- ----- -- -~ _ _ TOTAL AWARD $28,250 I ROUNDED OFF - -_- _ -- - _ _ - ~ -- - _ ~ Exhibit 1 ~' i . --- 22A-3 22A-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: May 4t'', 2009 TITLE: CONTRACT AWARD FOR PERSONAL PROTECTIVE SUITS (SOLE SOURCE, BLAUER MFG.) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 151 Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER Award a contract to Blauer Manufacturing to provide and deliver 5,400 WZ9435 XRT Chemical/Biological (CBRN) Level 3 certified protective suits in an amount not to exceed $2,021,608.13. DISCUSSION The United States Department of Homeland Security, Office of Grants and Training has developed the Urban Areas Security Initiative (UASI) funding program. This initiative was designed to enhance the domestic preparedness of urban areas by ensuring that all emergency first responders have adequate and appropriate equipment to prevent, respond to, and recover from acts of terrorism. Santa Ana has been designated as an Urban Area Core City for the fifth year. The City of Santa Ana has fiscal responsibility for the FY07 UASI grant for the Santa Ana / Anaheim Urban Area which encompasses the 34 jurisdictions in Orange County. The Orange County Operational Area COCOA) is in protective suits when responding to a Chemical, or Nuclear event/attack. In such an event, the and occasionally fire personnel, would be preservation, and some decontamination procedure would take place in the "warm zone". Per the Agency (NFPA) 1994 regulations, the warm zone rec 3 protection. critical need of personal Biological, Radiological, role of Law Enforcement, scene control, evidence ;. This type of activity National Fire Protection uires a minimum of Level The Santa Ana Police Department requests to enter into a sole source purchase with Blauer Manufacturing. Blauer is the only supplier in the nation who can provide a one-piece, single-mission, multiple donning/doffing, National Fire Protection Agency (NFPA) 1994 (2007) CBRN certified Level 3 protective suit (XRT suit). The single piece construction is critical due to simplicity and quickness of donning, and front entry design to allow donning without assistance or chemical tape. The Los Angeles Police Department has purchased the XRT and other agencies in the region are following suit. 22B-1 Agreement with Blauer Manufacturing. May 4th, 2009 Page 2 In a mass regional CBRN event, interoperability is critical when resources are needed in which responders are already trained and familiar with. This purchase will provide enough protection for both police and fire responders within the OCOA. FISCAL IMPACT Funds are available in the FY 2007 UASI Grant fund account (no.125-337- 6641-37132). APPROVED AS TO FUNDS AND ACCOUNTS: .y Paul M. Walters Chief of Police Police Department A fem. M a ., w a ~_ ~~ ~ Francisco Gutierrez ~IJ Executive Director Finance & Mgmt. Services Agency 22B-2 Y7V1 YJui LCi ~;~ il. ti7 ~, ~ 1 CALIFC)RNIA BMIEItGENCY MANAGEMENT ;P~.C;IrNGY March 2~, 2009 it. Mark Cypri~~z City of I~natlcizn police Department Post Office Box 3369 Aziaheixn, CA 92803~336y Dear Mr. Cyprien: SUBJECT: AP~'~{CVAL CF SOLI; SOURCE pROCUREI~IEN~ FY2007 Urban .Areas security Initiative ruASI} Grant Number 2007-0008, CaIENIA ID# 059-9510 Th.e California L'mergency Management Agency (CalElvlA) has received, reviewed, and aFproved tlae City of Santa Ana/Anaheim UASI request for Procurement Process Approval dated March 24, 2009. The decision was based on the information you pio~rided rega.~tiing ho :v the lvF'PA I994, Level tIl Personal protective garmel,ts, i~pzvves your organizatio~~.'s ability to prevetixt, Flan for, respond to, and zecovcr frrnn a terrorism even. If you have ally questions about tr~zs letter, please cantact Four Program IZepreaentative, Cameron I3ardwelI, at 916-322-87y0 or cal~eron.b xdwell ohs.ca. ov. Thank you for. your work in protecting California. Vt%c look forward to your cantinaed collaboration towards ous homeland seau-ity sUrategy auci appreciate your cooperation and support Sincerely, Ursula Harelson, Program ivlaiiag~" CaIEMA Grants Diviaion - HSCrP ~init GOVERNOR ARNOLD SCHwARZENEGGER SL.CRETARY MATT f1;TTbN't-IAliSL•iv STATE CAPfTOL, SACRAMENTO, CALIFORNIA 95814 (916) 324-8908 FAX (416) 323-9b33 22B-3 22B-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: MAY 4, 2009 TITLE: CONTRACT AWARD FOR TRAFFIC SIGNAL CAPITAL IMPROVEMENT - PEDESTRIAN EQUIPMENT UPGRADE (PROJECT NO. 08-2505-M) APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1s` Reading ^ Ordinance on 2~d Reading ^ Implementing Resolution ^ Set Public Hearing For_ ~~'~-- / CITY MANAGER RECOMMENDED ACTION CONTINUED TO FILE NUMBER 1. Award a contract to Econolite Traffic Engineering & Maintenance, the lowest responsible bidder, in accordance with unit bid prices in the amount not to exceed $70,000 for construction of Traffic Signal Capital Improvement - Pedestrian Equipment Upgrade project. 2. Approve a Funding Analysis with a total estimated construction cost of $85,000. DISCUSSION This project provides for replacement of outdated pedestrian heads and push buttons to bring them into compliance with current traffic signal standards. The replacement will be done at various signal locations throughout the City and will be done on an as needed basis. The project was advertised with unit pricing and an estimated quantity for bid comparison purposes. The total contract amount is awarded based on the available funding. The Notice Inviting Bids was advertised on March 16 and 18, 2009, and bids were opened on March 31, 2009. A summary of the bid invitations mailed, the bids received, and the bid results follows. Santa Ana Contractors receiving notices: 0 Contractors requesting bidding documents: 9 Bids received: 8 Bids received from Santa Ana Contractors: 0 23A-1 Traffic Signal Capital Improvement Pedestrian Equipment Upgrade May 4, 2008 Page 2 NAME OF BIDDER CITY BID AMOUNT 1. Econolite Traffic Engineering & Anaheim $29,860.00 Maintenance, Inc 2. Pro Tech Engineering Corp. Corona Del Mar $49,600.00 3. California Professional Eng. So. El Monte $52,560.00 4. Republic ITS. Norwalk $54,300.00 5. Steiny & Company, Inc. Baldwin Park $61,700.00 6. P.T.M. General Engineering Riverside $65,850.00 Services, Inc. 7. Christopher R. Morales, Inc. San Dimas $66,400.00 8. High Light Electric. Riverside $83,300.00 A total of eight bids were received and all were responsive . The lowest bid was submitted by Econolite Traffic Engineering & Maintenance for $29,860 which is below the engineer's estimate of $64,000. The low bid amount is attributed to a highly competitive market as demonstrated by the large number of bidders. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed project is exempt from further review. Categorical Exemption ER No. 2009- 55 will be filed for this project. FISCAL IMPACT The funding analysis shows a total estimated construction cost of $80,000 for the project (Exhibit 1). Funds are available in the Measure M Street Construction Fund (account no. 32-551-6631), Transportation System Improvement Area B Fund (account no. 33-631-6631), and Transportation System Improvement Area E Fund (account no. 34-631-6631). James G. Ross Executive Director Public Works Agency APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Mgmt. Services Agency 23A-2 FUNDING ANALYSIS PROJECT NO. 08-2505M TRAFFIC SIGNAL CAPITAL IMPROVEMENT PEDESTRIAN EQUIPMENT UPGRADE Construction Contract $ 70,000 Contract Administration 15,000 TOTAL ESTIMATED CONSTRUCTION COSTS $85,000 Exhibit 1 23A-3 23A-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: MAY 4, 2009 TITLE: CONTRACT AWARD FOR SUSAN STREET REHABILITATION (PROJECT N0.09- 1750-C) C APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1S` Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER RECOMMENDED ACTION 1. Award a contract to R. J. Noble Company, the lowest responsible bidder, in accordance with unit bid prices in the estimated amount of $593,867.90 for construction of Susan Street Rehabilitation from Sunflower Avenue to MacArthur Boulevard. 2. Approve a Funding Analysis with a total estimated construction cost of $831,380. DISCUSSION The segment of Susan Street from Sunflower Avenue to MacArthur Boulevard has been identified as a high priority on the City's Pavement Management System (Exhibit 1}, The pavement has deteriorated due to weather, age and heavy usage. Some of the adjacent curbs, gutters, and sidewalks are also in various states of disrepair and require replacement. This project provides for construction of new street pavement, replacement of damaged concrete curbs, gutters, sidewalks, cross gutters, driveway approaches and curb ramps. Once completed, these improvements will enhance the ride quality, surface drainage and visual appearance of the street. The Notice Inviting Bids was advertised on March 27 and 30, 2009, and bids were opened on April 9, 2009. A summary of the bid invitations mailed, the bids received, and the bid results follows. Santa Ana Contractors receiving notices: 12 Contractors requesting bidding documents: 12 Bids received: 9 Bids received from Santa Ana Contractors: 1 23B-1 Contract Award For Susan Street Rehabilitation May 4, 2009 Page 2 NAME OF RESPONSIVE BIDDER CITY BID AMOUNT 1. R. J. Noble Co. Anaheim $593,867.90 2. All American Asphalt Corona $598,451.00 3. Elite Bobcat Service, Inc. Corona $653,239.00 4. Palp, Inc. DBA Excel Paving Long Beach $665,851.00 5. Hardy & Harper, Inc. Santa Ana $669,669.00 6. Sully-Miller Contracting Anaheim $745,596.70 7. Pena Grading & Demolition Sun Valley $770,389.59 8. TK Engineering Co. Los Angeles $776,332.00 9. Doty Bros. Equip. Co. Norwalk $922,981.80 A total of nine bids were received and all were responsive. The lowest bid was submitted by R. J. Noble Company, for $593,867.90, which is below the Engineer's estimate of $775,000. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended action is exempt from further review. Categorical Exemption Environmental Review No. 2009-37 was filed for this project. FISCAL IMPACT The funding analysis shows a total estimated construction cost of $831,380 for the project (Exhibit 2). Funds are available in the State - Proposition 1B Fund (account no. 030-551-6631). APPROVED AS TO FUNDS AND ACCOUNTS: v G' James G. oss Executive Director Public Works Agency Francisco Gutierrez Executive Director Finance & Mgmt. Services Agency K:\Construction\RFCA-draft\OS-04-09 09-1750C Susan ET 55 WD.docx 23B-2 FUNDING ANALYSIS PROJECT NO. 09-1750-C SUSAN STREET REHABILITATION FROM SUNFLOWER AVENUE TO MACARTHUR BOULEVARD Construction Contract $593,868 Contract Administration $25,000 Inspection and Testing $39,445 Survey Staking $24,600 Contingencies $148,467 TOTAL ESTIMATED CONSTRUCTION COSTS 5831,380 Exhibit 2 23B-4 Award a contract to All bidder, in accordance with $8,315,754 for constructio Avenue to Pine Street. CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1 S` Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER American Asphalt, unit bid prices in n of Bristol Street the lowest responsible the estimated amount of Widening from McFadden 2. Approve a Funding Analysis with a total estimated construction cost of $11,226,000. REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 4, 2009 TITLE: CONTRACT AWARD FOR BRISTOL STREET WIDENING FROM MCFADDEN AVENUE TO PINE STREET (PROJECT NOS. 06-1500, 07-3206, AND 09-3521) DISCUSSION Bristol Street is the north-south corridor designated as a major arterial highway in the City's Circulation Element of the General Plan. The widening of Bristol Street between Warner Avenue and Memory Lane is a long-term project that will be constructed in several phases. This project includes the segment between McFadden Avenue and Pine Street (Exhibit 1). Overhead utility lines were placed underground in 2008 in accordance with the Bristol Street Specific Plan adopted by the City Council in 1993. With this project, Bristol Street will be widened from two lanes to three lanes in each direction with a landscaped median. The widening will also provide bus turnouts in both directions, enhanced parkway landscaping, sound walls adjacent to the remaining parcels and alleys, a new water main, sidewalk, and curb and gutter. Once completed, these improvements will enhance the ride quality, surface drainage, and visual appearance of Bristol Street. 23C-1 Contract Award For Bristol Street Widening, Phase I May 4, 2009 Page 2 The Notice Inviting Bids was advertised on February 18 and 20, 2009, and bids were opened on April 1, 2009. A summary of the bid invitations mailed, the bids received, and the bid results follows. Santa Ana Contractors receiving notices: 21 Contractors requesting bidding documents: 63 Bids received: 11 Bids received from Santa Ana Contractors: 2 NAME OF RESPONSIVE BIDDER CITY BID AMOUNT 1. All American Asphalt 2. Sequel Contractors, Inc. 3. R. J. Noble Company 4. Shawnan 5. Hillcrest Contracting, Inc. 6. Sukut Construction, Inc. 7. Excel Paving Company 8. Griffith Company 9. Los Angeles Engineering, Inc. 10. Beador Construction Co., Inc. 11. Sully Miller Contracting Corona Santa Fe Springs Orange Downey Corona Santa Ana Long Beach Santa Ana Covina Corona Anaheim $8,315,754.00 $8,487,462.50 $8, 526, 993.70 $8,998,734.50 $9,244,429.50 $9,506,664.00 $9,655,333.00 $9,738,147.00 $10,004,064.00 $10,807,700.00 $10,836,371.30 After the bids were opened, Sequel Contractors, Inc. (Sequel) submitted a bid protest claiming that the bid submitted by All American Asphalt (AAA) was non-responsive. According to a procedure established in the bidding documents, the Director of Public Works Agency conducted an administrative hearing to determine the merit of the protest. Specific assertions of Sequel and staff's findings are summarized below. First, Sequel stated that in the bidding document AAA had listed two sub-contractors but indicated that AAA would perform a portion of the work. Sequel asserted that by doing so, AAA would be allowed to do "bid shopping". Second, Sequel claimed that by adding up the amounts of the bid prices, included in the List of Sub-Contractors, AAA would perform less than 500 of the work. This would not be in compliance with the Standard Specifications for Public Works Construction. Public Works staff and the City Attorney's office after listening to the information presented at the protest hearing by Sequel and AAA, has determined that AAA's bid is responsive and recommends that they be awarded the construction contract for the Bristol Street Widening. 23C-2 Contract Award For Bristol Street Widening, Phase I May 4, 2009 Page 3 ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed project has been determined to be adequately evaluated in the previously prepared Environmental Impact Report/Environmental Impact Assessment EIR No. 89-O1 approved by City Council in 1990. FISCAL IMPACT The funding analysis shows a total estimated construction cost of $11,226,000 for the project (Exhibit 2.) Funds are available in the Select Street Construction Fund (account no. 059-553-6631, Project No. 06-1500), Acquisition & Construction Water Utility Capital Projects Fund (account no. 066-579-6631, Project No. 07-3206) and the Sanitary Sewer Service Fund (account no. 056-575-6631, Project No. 09-3521-M). APPROVED AS TO FUNDS AND ACCOUNTS: 6i'61LiZL v~ James G. R s Executive Director Public Works Agency ~- ~. ~ ~ ,~ Francisco Gutierrez ,r~~ ^' c~--~ Executive Director Finance & Mgmt. Services Agency ` K:\Construction\RFCA-draft\04-20-09 06-1500 BristolWid WA 200 WD.docx 23C-3 -- ~----~ I I j I I ~ I i • I ~--1----~-•T-- I --~------~ ~------ I I I-------~ I I PANE ST PINE ST .. 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TOLLIVER S7 - --~- I _-_~ _- _ __~ I _--~~ HIGHLAND $T 'a ___~ I I I I ---~ -----I-- ~ ---~ I I- I j --- ~ I ~ • j ~_.1 --' _-~• BROOK ST --- ~ ~ ,~~ --- .__ I - II ~ I II -_- I I --- I f ---_ I I I t--_- --- i r-_- ~'f '_ ~~•-.I ~---- i-- i•.~..i. ~--- i - --~ j i '~w~---- ~ I I I I lal--_-- I I I I ..J L I MCFAODEN AVENUE wulni~- ~ saNra aNa TITLE CITY COUNCIL BRISTOL STREET WIDENING, FROM P W A AGENDA DATE MCFADDEN AVENUE TO PINE STREET, PHASE I MAY 4, 2009 (PROJECT NOS. 06-1500, 07-3206, AND 09-3521) PUBLIC WORMS AGENCY ~ . ~ i FUNDING ANALYSIS PROJECT NOS. 06-1500, 07-3206 AND 09-3521 BRISTOL STREET WIDENING FROM MCFADDEN AVENUE TO PINE STREET, PHASE Construction Contract $8,315,754 Contract Administration $147,096 Inspection and Testing $650,000 Survey Staking $450,000 Contingencies $1,663,150 TOTAL ESTIMATED CONSTRUCTION COSTS $11,226,000 Exhibit 2 23C-5 23C-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 20, 2009 TITLE: COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM FISCAL YEAR 2009-2010 CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1S` Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For CONTINUED TO =~~- ~-C'r FILE NUMBER 1. Approve the proposed fiscal year 2009-2010 Community Development Block Grant Program, as amended. 2. Authorize the City Manager to submit the approved program to the United States Department of Housing and Urban Development (HUD) for the City's fiscal year 2009-2010 allocation of Community Development Block Grant funds and execute the grant agreement with the United States Department of Housing and Urban Development. 3. Direct the City Attorney to prepare and and the Clerk of the Council to execute agencies and/or sub-recipients awarded approved program. HUMAN RELATIONS COMMISSION ACTION authorize the City Manager agreements with nonprofit funds as part of the At its Regular Meeting of February 9, 2009, by a vote of 7:0 (Gonzalez, Hoa absent), the Human Relations Commission (HRC) directed staff to transmit the Human Relations Commission's funding recommendations for fiscal year 2009-2010 Community Development Block Grant Social Services Programs to the City Council. DISCUSSION Since fiscal year 1974-1975, Santa Ana has received Community Development Block Grant (CDBG) funds to improve low- and moderate-income neighborhoods, eliminate blight and create a more stable economic base. 25A-1 Community Development Block Grant Program Fiscal Year 2009-2010 April 20, 2009 Page 2 These funds have been used for a diverse range of programs including housing, street improvements, parks and public facilities improvements, social services, historic preservation and community services. The funding allows for no more than fifteen percent of this entitlement to be used for social service programs. The proposed CDBG program and budget for fiscal year 2009-2010 reflect the culmination of a process that solicited proposals from outside organizations and City agencies for the use of the annual entitlement. Invitations to apply for funds were distributed to 219 organizations in September 2008. Staff then met with the Human Relations Commission (HRC) in its capacity as the CDBG Citizen Advisory Board to review the public service applications and conducted three public hearings held on January 14, 21, and 29, 2009, in the City Council Chambers. Following the public hearings, staff met again with the HRC to draft a recommended social service program and budget for City Council's consideration. Traditionally, the only organization to apply for funding of fair housing counseling services has been the Fair Housing Council of Orange County. This year, as a result of the City's notice of funding availability, the City received a total of three applications. City staff evaluated applications and reviewed the organizations' experience, deliveries and references. Applicants were also invited to be interviewed by a panel composed of City staff from various departments. Based on this evaluation process, Fair Housing Council of Orange County is being recommended to continue providing fair housing counseling. Fair Housing of Orange County offices are located in an extremely convenient location in the City of Santa Ana, attracting a high percentage of walk- in clients. Their local expertise and deep roots in the community are invaluable. They are accustomed to Santa Ana's housing issues and have a very progressive outreach program. Staff recommends funding Fair Housing of Orange County to provide continuity and quality service to Santa Ana residents. The proposed fiscal year 2009-2010 CDBG program and budget as amended (Exhibit 1) consists of staff's recommendations for the program, including capital projects, code enforcement, program administration, and social services. The HRC ranking and funding recommendations for the social service programs are also provided in Exhibit 2. Due to the financial challenges with the city's budget for 2009-10, staff is recommending an adjustment to the public service program recommendations made by the Human Relations Commission. The amended program recommendations provide for full funding of three City programs: Tab 13 25A-2 Community Development Block Grant Program Fiscal Year 2009-2010 April 20, 2009 Page 3 - Library tutoring program in the amount of $200,000; Tab 14 - Police helicopter program in the amount of $600,000; and Tab 16 - Project PRIDE in the amount of $152,000. In addition, we are recommending funding of two senior meal programs (Tabs 20 and 21) for $24,000 each. The CDBG regulations require that a portion of the social service funds be allocated to serve the city's senior population. The three identified city programs above do not meet that requirement; hence, we recommend funding the two critical senior programs. The total of these programs equal the maximum amount that can be spent on public service programs. The final funding allocation for the 2009-10 program year has not yet been confirmed by HUD; however, the submittal deadlines for various required documents necessitates us moving forward with a program approval. In the event the final allocation results in more or less funding, the difference will be added or deducted from Tab 77 - Public Works Street Improvements. FISCAL IMPACT Approval of the recommended action will authorize the City Manager to submit the approved program to HUD and to execute a grant agreement, which will result in the City's CDBG letter of credit being augmented. These funds will be available for the approved program effective July 1, 2009. APPROVED AS TO FUNDS AND ACCOUNTS: /J ~ ~, Cynthia J.''Nelson Deputy City Manager for Development Services Community Development Agency CJN/NTE/kcg Francisco Gutierrez Executive Director Finance & Management Services Agency H:\ACTION ITEMS\COUNCIL\2009CC\092009 P.H. CDBGProgramFY 09-10 Amended.doc 25A-3 PROPOSED 2009-10 COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM 2009-10 TAB REQUEST Public Services 13 City of Santa Ana-Library 14 City of Santa Ana-Helicopter Program 16 City of Santa Ana-Project PRIDE 20 Community SeniorServ-Home Meals 21 Community SeniorServ-Congregate 2009-10 AMENDED STAFF RECOMMENDATION Total Public Services $ Administration 8~ Planning 73 City of Santa Ana/CDA-Administration $ 75 Orange County Fair Housing Council $ Total Administration & Planning $ 755,000 $ Capital Improvements 77 City of Santa Ana/PWA-Neighborhood Street Improvements $ 2,900,000 $ 78 City of Santa Ana/PRCSA-Neighborhood Park Improvements $ 150,000 $ 79 City of Santa AnaJCDA-Neighborhood Sponsored Improvements $ 50,000 $ Total Capital Improvements $ 3,100,000 $ Code Enforcement 83 City of Santa Ana/PBA & CAO-Code Enforcement $ 1,700,000 $ Total Code Enforcement $ 1,700,000 $ Housing Rehabilitation 84 Paint Your Heart Out $ 90,000 $ 85 Rebuilding Together O.C. $ 30,000 $ 86 City of Santa Ana/CDA-Multi-Family Rehab Loans _ $ 125,000 $ Total Housing Rehabilitation $ 245,000 $ 755.000 2,900,000 150,000 50,000 3,100,000 1,700,000 1,700,000 90,000 30,000 125,000 245,000 TOTAL $ 6,812,000 $ 6,800,000 200,000 $ 600,000 $ 152,000 $ 30,000 $ 30,000 $ 200,000 600,000 152,000 24,000 24,000 1,000,000 682,800 72,200 1,012,000 $ 682,800 $ 72,200 $ 2 ~`~~=4 2009-2010 CDBG Ratina And Recommendations Sheet Tab Or anization Service T e Service Detail 08-09 Grant Allocation 09-10 Grant Re uest Human Relations Recomm'd Average Score 71 Women's Transitional Livin Ctr Shelters Emer enc $ 10,000 $ 20,000 $ 15,500 29.00 45 O. C. Children's Thera eutic Arts S ecial Needs S ecial Needs $ 22,500 $ 34,794 $ 28,000 28.33 8 Bo sand Girls Club of Santa Ana Recreation cam $ 40,000 $ 47,562 $ 40,000 27.78 48 O. C. Youth Commission Recreation Sorts $ 25,000 $ 48,868 $ 34 500 27.44 36 Kidsin ers Recreation Arts $ 13,000 $ 25,000 $ 15,500 27.33 6 Assistance Lea ue of Santa Ana Support Services Support Services $ 20 000 $ 33,000 $ 21,000 27.17 20 Communit SeniorServ-HM Seniors Senior Services $ 24,000 $ 30 000 $ 16,500 27.00 34 Human O lions Youth Education Other $ 15,000 $ 20,000 $ 20,000 27.00 3 AIDS Services Foundation S ecial Needs S ecial Needs $ 5,000 $ 25,000 $ 13,000 26.83 61 Southwest Minorit Econ. Dev Support Services Support Services $ 9,000 $ 13,000 $ 10,500 26.83 68 Westend Communit Policin Crime Outreach $ 8,500 $ 13,100 $ 9,500 26.83 69 Wise Place Shelters Transitional $ 12,500 $ 12,500 $ 12 000 26.83 22 Communit Services Pro ram Shelters Youth $ 12,500 $ 15,000 $ 13,000 26.67 21 Communit SeniorServ-CM Seniors Senior Services $ 24 000 $ 30,000 $ 16,500 26.40 16 Cit -PRCSA-Pro ect Pride Recreation cam $ 116,500 $ 146,559 $ 88 500 26.33 53 Relam a o Del Cielo Recreation Arts $ 12 000 $ 14,000 $ 12,000 26.22 25 Delhi Center Seniors Senior Services $ 5,000 $ 20 000 $ 10,000 26.17 54 Saint Jose h's Ballet Recreation Arts $ 42,000 $ 50,000 $ 41,000 26.11 65 TKO Youth Foundation Recreation Sorts $ 27,000 $ 30,000 $ 25,500 26.11 62 Taller San Jose Adult Education Em to ment $ 50,000 $ 67 758 $ 45,000 26.00 70 Women Hel in Women Adult Education Em to ment $ 6,500 $ 13,000 $ 8,500 25.78 55 Santa Ana Athletic Foundation Recreation Sorts $ 18,000 $ 50,000 $ 24 500 25.67 57 SBC Communit Mission Svcs Recreation Sorts $ 10 000 $ 10,000 $ 10 000 25.67 58 Share Our Selves Medical/Dental MedicallDental $ 10 000 $ 10,000 $ 10 000 25.67 19 Communit Courts Foundation MedicallDental Medical/Dental $ 15,000 $ 22 776 $ 16,500 25.40 44 O. C. Bar Foundation-sto Short Counselin Crime Prevention $ 15,000 $ 20,000 $ 13,000 25.22 66 Vietnamese Communit of O.C. Counselin Crime Prevention $ 12,000 $ 67,091 $ 16,000 25.00 40 Mari osa Women and Famil Ctr Counselin Abuse/Ne lect $ 6 000 $ 7,500 $ 6 000 24.33 46 O. C. Human Relations-Common Counselin Other $ 5,500 $ 30 792 $ 12,500 24.29 47 O. C. Human Relations-Heart Youth Education Other $ 20 000 $ 28 619 $ 18 500 24.29 28 EI Puente Adult Education Academic $ 20 000 $ 50 000 $ 23 000 24.22 27 EI Centro Cultural De Mexico Recreation Arts $ 40 000 $ 73 000 $ 36 500 24.14 72 Youn Men's Christian Assoc. Support Services Support Services Did Not A I $ 51 600 $ 14 000 24.00 43 O.C.Bar Foundation-Pro ramma Counselin Crime Prevention $ 20 000 $ 15 000 $ 11 500 24.00 1 211 Oran a Count Referral Hotline $ 5 000 $ 30 000 $ 16 500 23.75 35 Interval House Referral Hotline $ 5 000 $ 20 000 $ 9 500 23.67 50 Pathwa s to Adventure Recreation cam $ 30 000 $ 38 500 $ 27 500 23.56 23 Con .Dist-Academ of Dance Recreation Arts Did Not A I $ 25 000 $ 13 000 23.33 15 Cit -Police De artment-PAAL Youth Education Academic $ 65 000 $ 85 000 $ 48 500 23.11 33 Hotline of Southern California Referral Hotline $ 5 000 $ 6 000 $ 5 000 23.11 4 America on Track Youth Education Mentor/Leader shi $ 14 000 $ 16 000 $ 11 000 23.00 5 American Lun Association Medical/Dental Medical/Dental Did Not A I $ 47,410 $ 12,000 23.00 41 Merc House Shelters Transitional $ 10,000 $ 60,000 $ 15,000 22.67 25~~-~5 2009-2010 CDBG Ratina And Recommendations Sheet 52 Public Law Center Referral Referral Did Not A I $ 16,663 $ 8,000 22.44 17 Cit -Public Works-Anti-Graffiti Crime Outreach $ $ 110,000 $ 19,000 22.17 10 Career Be innin s of O. C. Youth Education Mentor/Leader shi $ 15,000 $ 18,000 $ 11,500 22.00 38 Legal Aid Society-Earned Income Tax Credit Adult Education Financial $ - $ 10,000 $ 5,500 21.86 49 Parent Institute for Qualit Edu Adult Education Academic $ 10 000 $ 100,000 $ 10,000 21.67 63 Teen Challen a of SoCal Youth Education Academic $ 10 000 $ 10,000 $ 8,000 21.56 9 Cambodian Famil The Youth Education Academic $ 25 000 $ 45 000 $ 25 500 21.56 2 Achievement Institute Youth Education Mentor/Leader shi $ 9 000 $ 17 000 $ 10 000 21.33 67 Villa Center The Shelters Emer enc $ $ 50 000 $ 10 000 21.33 37 Latino Youth Leadershi Institute Youth Education Mentor/Leader shi $ 5 000 $ 48 400 $ 10 000 21.25 39 Le al Aid-Health Consumer Referral Referral $ 6 500 $ 10 700 $ 6 500 21.22 12 Child Guidance Center Counselin AbuselNe lect Did Not A I $ 41 379 $ 10 000 21.11 24 Court A oint S ecial Advocates Counselin Abuse/Ne lect Did Not A I $ 10 000 21.00 64 THINK To ether Youth Education Academic $ 20 000 $ 50 000 21.00 26 East L.A. Classic Theatre Youth Education Other Did Not A I $ 99 552 20.22 13 Cit -Librar Youth Education Academic Did Not A I $ 249 580 20.13 42 Nova Academ Youth Education Academic Did Not A I $ 15 000 19.67 29 F.A.C.E.S Counselin AbuselNe lect Did Not A I $ 15 092 19.33 30 Goodwill Industries Adult Education Financial $ $ 15 850 19.00 14 Cit -Police De t-Helico ter Crime Crime Prevention $ 20 000 $ 250,000 18.83 31 Grain Pro'ect, The Youth Education Other Did Not A I $ 73,855 18.22 32 Ho a Communit Services Youth Education Academic $ 5,000 $ 27,150 18.22 11 Charles W. Bowers Museum Youth Education Academic $ 5,000 $ 10,000 17.56 18 Colette's Children's Home Shelters Transitional $ $ 10,000 14.40 59 Small Bus. Financial Dev. Cor Adult Education Financial Did Not A I $ 50,000 14.22 7 Blind Children's learnin Center S ecial Needs S ecial Needs $ 18,500 $ 27 000 12.50 51 Phoenix House Oran a Count Counselin Crime Prevention Did Not A I $ 30,047 10.88 56 Santa Ana Historic Preservation Youth Education Other Did Not A I $ 9,100 10.71 60 South Coast Children Societ Support Services Support Services Did Not A I $ 3,995 4.20 Total $ 2,896,792 $ 1,000,000 Amount Available $ 1,000,000 SURPLUS/ DEFICIT $ _ 25~~-~6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 4, 2009 TITLE: AMENDMENT TO AGREEMENT WITH CLEAR CHANNEL OUTDOOR INC. FOR BUS SHELTER AND BUS BENCH SERVICES CITY RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1S` Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached amendment to the agreement with Clear Channel Outdoor Inc., subject to non-substantive changes approved by the City Manager and City Attorney extending the agreement to provide and maintain bus stop shelters and bus benches throughout the City. DISCUSSION The City currently has an agreement with Eller Media (subsequently re- named to Clear Channel Outdoor Inc.) to provide bus shelter and benches throughout the City. The agreement is due to expire in June 2010. The City has approximately 145 bus shelters and 613 bus benches. The bus shelters have advertising on one, two-sided panel at each location. There is no advertising on the bus benches. These shelters and benches provide bus patrons with shelter from the elements, a location visible to the public, a safer environment from criminal activity at night and a location for the disabled and elderly to rest while waiting for the bus. The total annual payment made to the City is currently $672,000. Under the terms of the current agreement the City will receive one additional payment in July. Clear Channel has suffered severe cutbacks in their revenues due to the downturn in the economy and has approached the City with an offer to extend the current agreement for three years under the same terms, 25B-1 Amendment to Agreement With Clear Channel Outdoor Inc. May 4, 2009 Page 2 with a payment reduction in the last year of the existing agreement to $504,000. With the extension the City will also receive payments at this level for the three years covered by the extension. The alternative to the extension is to end the agreement next June and to seek competitive proposals. However, in the current economic climate, the City can expect to receive substantially reduced payments and may be faced with no bidders or Clear Channel as the only bidder. In 2000 the City sought competitive proposals and only two companies responded. The second company that presented a proposal is now out of business. Staff has contacted other cities and the proposal made to Santa Ana will result in higher per-shelter payments than those paid to other cities. Santa Ana has one of the largest bus shelter and bus bench inventories in the County and public transportation remains an important aspect of the community. Based on current circumstances, staff is recommending an amendment to the agreement with Clear Channel Outdoor Inc., extending the agreement for an additional three years. ENVIRONMTNTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT With approval of the amendment the City will receive $504,000 in FY 2009-10 through FY 2012-13 in the general fund (account no. 11-01- 5927). APPROVED AS TO FUNDS AND ACCOUNTS: J es G. Ross Francisco Gutierrez ecutive Director Executive Director l~' ublic Works Agency Finance & Mgmt. Services Agencylu 25B-2 FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT is entered into on May 4, 2009, by and between Clear Channel Outdoor, Inc., a California corporation {"Grantee") 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 and Eller Media Company, a Delaware corporation, entered into that certain Agreement A-2000-179, dated December 8, 2000, (hereinafter "said Agreement") by which Grantee was granted the exclusive right to install, operate and maintain bus shelters and bus benches in the City of Santa Ana. B. On July 1, 2001 Eller Media Company completed a name change to Clear Channel Outdoor, Inc. C. In accordance with the terms and conditions of said Agreement, the parties wish to amend the Schedule of Payments and extend the term of said agreement for an additional three-year period. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this First Amendment to Agreement, the parties agree as follows: 1. Section 2, TERM OF AGREEMENT, shall be amended to extend the term for an additional three year period, to expire on June 30, 2013, unless said Agreement is terminated earlier, pursuant to the provisions of said Agreement, or otherwise according to law. 2. Section 3, COMPENSATION TO CITY, shall be amended by reducing the annual payment amount set forth in the annual Schedule of Payments, Attachment A to said Agreement, and extending the payment schedule for an additional three years. Said Annual Payment shall be reduced from $672,000 to $504,000 for the 2009-2010 Contract Year. Grantee shall pay to the City annual payments in the amount of $504,000 for each of the three succeeding fiscal Contract Years, including 2010/2011 through 1012/2013. 3. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. // 25B-3 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Agreement on the date and year first written above. ATTEST: PATRICIA E. HEALY Clerk of the Council APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney By: Laura Sheedy Assistant City Attorney CITY OF SANTA ANA DAVID N. REAM City Manager CLEAR CHANNEL OUTDOOR, INC. Greg McGrath President, Southern California Division 25B-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 4, 2009 TITLE: COUNTY OF ORANGE PROPOSITION 42 - CITY AID PROGRAM AGREEMENT - FISCAL YEAR 09/10 fir,' ~~v ~ v l~ CITY MANAGE RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1S` Reading ^ Ordinance on 2°d Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute the attached agreement with County of Orange to receive Proposition 42 City Aid Program funds for FY 09/10. DISCUSSION On March 25, 2009 the County of Orange issued the second annual call for projects to the cities to participate in the Proposition 42 City Aid Program (CAP) for fiscal year 09/10. This County funding program was formulated to assist Orange County cities by providing funds for the roadway projects. The County's CAP allocation for 09/10 is estimated at $7 million which has a reduction of thirty percent from the previous year due to the economic downturn. The grant funding will provide Santa Ana the opportunity to receive $824,311 in FY 09/10 based on the population percentage of the County's CAP program. The County's CAP grant funds are in addition to the Proposition 42 programmed funds that the City is expected to receive in FY 09/10 from the State. The Public Works Agency has identified Raitt Street between Saint Gertrude and Edinger as the eligible project for funding. Improvements include pavement rehabilitation and replacement of damaged curb, gutter and sidewalk. The project will be included in the proposed 09/10 CIP and is expected to be under construction in summer of 2010. 25C-1 County Of Orange Proposition 42 - City Aid Program Agreement February 4, 2008 Page 2 The attached agreement requires the City to commit to the following: 1. Maintain the existing "Maintenance of Effort" for the use of local funds for street and highway, maintenance, rehabilitation, reconstruction, and storm damage repair; 2. Expend the CAP allocations by June 30, 2011 on Prop. 42 eligible projects or return the CAP allocations to County; and 3. Provide the County with FY 09/10 CAP expenditure certification by August 31, 2011. The County will distribute CAP allocations to the City upon receiving Prop.42 funding from the State and approval of the attached CAP agreement by the Board of Supervisors. Distribution of CAP allocations will be made to the City on a first come first served basis, with the submittal of proof of project award documentation and city invoices. Implementation of the CAP is dependent on the County receiving its funding from the State's Prop. 42 grant program. The County is tentatively scheduled to approve the CAP agreements on June 2, 2009. ENVIRONM]3NTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Funds will be received in the City's Traffic Congestion Relief Fund (account no. 28-01-5361). //~ James G. Ross Executive Director Public Works Agency APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez ~-~ Executive Director Finance & Mgmt. Services Agency 25C-2 Agreement .Nc~.D09-032 PROPOSITION 42 CITY AID PROGRAM FUNDING AGREEMENT 'T'his CI'1"Y A1D PROGRAM FUNDING AGREEMENT, Agreement No. D09-0~2 ("Agreement") is made and entered into this day of , 2009, by and between County aI' Orange, California, a political subdivision of the State of California ("County''), and City of Santa Ana, a municipal corporation in the State of California (`'City"j. The County and City shall sometimes be referred to separately as a "Party'' and collectively as the "Parties." RF.,CI"PALS A. WHI/REAS, Orange County cities have streets in need of routine roadway maintenance, minor roadway widening (non-capacity enhancing.) and storm damage improvements, but have limited funds to address these needs. B. WHEREAS, pursuant to Streets and Highways Code Section 1686, the California State Legislature has determined. that the improvement and maintenance of all city streets is of general county interest. County believes that it is of general interest to the county and all the cities within the county to extend financial aid to the cities for the general improvement and maintenance of city streets in that the improvement of transportation congestion is of benefit to all Orange County residents. C. WHEREAS, County desires to assist Orange County cities with the improvement and maintenance of city streets, and to help improve regional transportation needs within the county. County receives Proposition 42 ("Prop. 42'') allocations from the State's Transportation Investment Fund ("TIF") for the purposes of street and highway maintenance, rehabilitation, reconstruction and storm damage repair. D. WHEREAS, With authorization from the State, County has established its Prop. 42 City Aid Program ("CAP"). County will allocate a portion of County's Prop. 42 funds to participating cities for the purposes of routine roadway maintenance, minor roadway widening (non-capacity enhancing) and storm damage improvements within the cities ("CAP Funds"). City's expenditure of CAP Funds is to be in accordance with California Constitution Article XIX B Section 1 and Revenue and Taxation Code Section 7104, and all other applicable State rules, regulations and guidelines ("Prop. 42 Requirements"). E. WHEREAS, City ovtims and operates streets in need of routine roadway maintenance, minor roadway widening (non capacity enhancing) and storm. damage improvements, and acknowledges that it has limited funds by which to address these needs. Therefore, City is in support of receiving CAP Funds. NOW, THEREFORE, in consideration. of the foregoing recitals of fact, the mutual covenants and conditions contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows: Page 1 of 6 25C-3 Agreement No.D09-032 City Request for CAP Funds Prior to disbursement of CAP Funds, City shall provide County with a request for CAP Funds listing the proposed project(s), delineating all costs for project design, construction, and constn~ctian management that comply with Prop. 42 Requirements, and referencing Agreement by number. City shall also provide documentation, such as a city council minute order, indicating. award of the project(s),. the contractor to which the project(s) was awarded, and the amount of award, which. award must be greater than the amount of the request (collectively, '`CAP Funds Request"). 2, procedures for the Disbursement of CAP Funds 2.1 After County reviews and confirms eligibility of City's CAP Funds Request, County will disburse CAP Funds to City in accordance with this Section 2 in an amount not to exceed $824,311.00. 2.2 County will disburse CAP Funds to City in the order it receives eligible CAP Funds Requests from all participating cities, i.e., on a "first come, first served" basis. County will disburse CAP Funds to City upon County's receipt of its fiscal. year 09/10 Prop. 42 allocations from the State. CAP Funds will not be disbursed to City until such time that adequate Prop. 42 funds are made available to County to pay all participating cities which have previously submitted eligible CAP Funds Requests. 2.3 CAP Funds shall be allocated proportionally based on the percentage of City's population compared to the total population of all participating cities as of the latest estimates published by the Demographic Research Unit of the California Department of Finance. 2.4 County's disbursement of CAP Funds is subject to the State's allocation of Prop. 42 funds to County including, but not limited to, allocation delays by the State or changes to Prop. 42 Requirements. 3. City Obli ations 3.1 In order to receive CAP Funds, City shall maintain its existing Maintenance of Effort ("MOE") of local funds for street and highway, maintenance, rehabilitation, reconstruction, and storm damage repair. City must annually expend from its general fund for street, road, and highway purposes an amount not less than the annual average of its expenditures from its general fund during the 1996-97, 1997-98, and 1998-99 fiscal years, as reported to the State Controller pursuant to Streets and Highways Coda; Section 2151. 3.2 City must expend its CAP Funds between July 1, 2009 and June 30, 2011. Any CAP Funds not expended by June 30, 2011 ("Deadline") shall promptly be returned to County. but in no event shall City return GAP Funds later than August 31, 2011. 3.3 If City determines at any time that City cannot expend its CAP Funds by the Deadline, City shall immediately notify County in writing of this deterrnir~ation. City shall then Page 2 of 6 25C-4 Agreement No.D09-032 return its remaining CAP funds within thirty (30) days of said notification. Should City's CAP Funds be returned to County prior to Deadline, County will attempt to reallocate the funds tv other County projects. However, if County is unable to do so, the funds tivill be returned to the State. 3.4 Upon the expenditure of all CAP Funds, City shall promptly submit, but na later than August 3l, 2011, an expenditure certification to County, listing Che project(s) for which CAP Funds were used and certifying that all. expenditures of CAP Funds comply with Prop. 42 Requirements. 3.5 upon.. request by County, City shall provide County, within thirty (30) days of the request, all documentation and other inforniation relating to City's expenditure of CAP Funds. 3.6 In the event of an audit by the State, City shall provide State and/or County all documentation requested by the State within the timeframe required by the State. City shall work cooperatively with County during the course of the audit. City shall attend all audits and audit proceedings, as needed. If the State finds that any City expenditure of CAP Funds is ineligible or does not comply with Prop. 42 Requirements, the amount of the ineligible expenditure shall be immediately reimbursed to County, which will be returned to the State. 4. Miscellaneous Provisions 4. ] Availability of Funds County's obligation is subject to the availability of funds appropriated for this purpose, and nothing herein shall be construed as obligating County to expend or as involving County in any contract or other obligation for future payment of money in excess of appropriations authorized by law. If County's total Prop. 42 allocation from the State falls 10 percent or more below the anticipated eighteen million, three hundred thousand dollars ($18,300,000) yearly allocation, County will adjust the seven million dollar ($7,000,000) total CAP allocation by the same percentage. City's allocation of CAP Funds will likewise be adjusted. There will. be no adjustment if County's total Prop. 42 allocation from the State exceeds County's anticipated allocation amount. 4.2 Indemnification & Hold Harmless. City shall indemnify, defend with counsel approved in writing, save and hold County and. each of its elected officials, officers, directors, agents and employees harmless from any and ail claims, injuries, liabilities, actions, damages, losses or expenses, including attorney's fees and costs, of every type and description to which they may be subjected arising out of any act or omission of, its employees, representatives, agents and independent contractors in connection with the implementation of the actions described in this agreement. Should a City expenditure of CAP Funds be determined to be ineligible by the State, City is further liable for any interest payments, fines, or other forfeitures that may be assessed by the State. Notwithstanding Sections 3.2 and 3.3, City shall. return CAP Funds to County within thirty (30) days should 1) the State or County deem any City expenditure of CAP Funds to be ineligible; or 2) the City Aid Program be found to be incompatible with State requirements. Page 3 of 6 25C-5 Agreement No.ll09-032 4.3 Assignment This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties. No assigmnent of City's interest in this Agreement shall be made without the written consent of County. 1~ urthermorc, City agrees that CAP 1~ ands shall not be expended on, given to, shared with, or otherwise provided to any other city, local agency or other entity that is not contemplated under this Agreement. 4.4 Entirety & Amendments This Agreement contains the entire agreement between the Parties with respect. to the matters provided for herein. Na alteration nr variation of the terms of this Agreement shall be valid w~lcss made in writing and signed by the Parties; no oral understanding or agreement not incorporated herein shall be binding on either of the Parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on County unless authorized by County in writing. 4.5 Severability [f any part of this Agreement is held, determined, or adjudicated to be illegal, void, or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall. be given effect to the fullest extent reasonably possible. 4.6 Calendar Davs Any reference to the word "day" or "days" herein means calendar day or calendar days respectively, unless otherwise expressly provided. 4.7 Notices Notices or other communications which may be required or provided under the terms of this Agreement shall be given as follows; City: Director of Public Works/City Engineer Public Works Department City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92702 Phone 714-647-564 Facsimile 714-647-6954 and County: Director/Gluef Engineer, OC Engineering OC Public Works County of Orange PO 13ox 4048 Santa Ana., CA 92702-4048 Phone 714-6h7-3213 Facsimile 714-834-249b All notices shall be in writing and deemed effective when delivered in person or deposited in the United States mail, first class, postage prepaid and addressed as above. Notwithstanding the above, the Parties may also provide natices by facsimile transmittal, and any such notice so given shall be deemed to have been given upon receipt during normal business hours or, in the event of receipt after business, on the following business da}'. Any notices, correspondence, Page 4 of 6 25C-6 Agreement No,D09-032 reports and/or statements authorised or required by this Agreement, addressed in any other fashion shall. be deemed not given. 4.8 'Termination County may terminate this Agreement for any reason provided that City has not awarded any project an which its CAP allocation will be expended. After City has awarded a project on which its CAP allocation will be expended, County may terminate this Agreement ii' City is in breach of` this Agreement. Any such termination shall be accomplished by delivery to City a Notice of Termination, which notice shall become effective not less than thirty (30) days after receipt, spccif`ying the reason for the termination, the extent to which CAP funding is terminated, and the date upon which the termination is effective. 4.9 Breach The failure of City to comply with any of the terms and conditions of this Agreement shall be a material breach of this Agreement. A breach of` this Agreement by City may be grounds to not include City in future allocations of City Aid Program, as determined by County. 4.10 Waiver of Jury Trial Each Party acknowledges that it is aware of and has had the opportunity to seek advice of counsel of its choice with respect to its rights to trial by jury, and each Party, for itself and its successors, creditors, and assigns, does hereby expressly and knowingly waive and release all such rights to trial by .jury in any action, proceeding or counterclaim brought by any Party hereto against the other (and/or against its officers, directors, employees, agents, or subsidiary or affiliated entities) on or with regard to any matters whatsoever arising out of or in any way connected with this Agreement and/or any other claim of injury or damage. 4.11 Attorney's Fees In any action or proceeding to enforce or interpret any provision of this Agreement, or where any provision hereof is validly asserted as a defense, the Parties shall bear their own attorney's fees, costs and expenses. 4.12 Governing Law & Venue This Agreement has been negotiated and executed in the State of California and shall be governed by and construed under the laws of the State of California. In the event of any legal action to enforce or interpret this Agreement,. the 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. // // r/ Page 5 of 6 25C-7 Agreement No.D09-032 IN Wl'I'NESS WHEREOF, City has caused this Agreement to be executed by its Mayor and attested by its Clerk, and County has caused this Agreement to be executed by the Chairman of the Board of Supervisors and attested by its Clerk on the dates written opposite their signatures, all thereunto duly authorized by the City Council and the Board of Supervisors, respectively. City of tlnaheim, a municipal corporation Date: By: Mayor ATTF,ST: APPROVED AS TU FORM: City Clerk Date: SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD Bv: Darlene 1. Bloom Clerk oi'the Board of Supervisors of Orange County, California By: City Attorney County of Orange, a political subdivision of the State of California By: Chairman. Board of Supervisors APPROVED AS TO FORM: COUNTY COUNSEL ORANGE COUNTY, CALIFORNIA B v: Page 6 of 6 Deputy 25C-8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: May 4, 2009 TITLE: AGREEMENT FOR MAINTENANCE AND UPGRADE TO POLICE DIGITAL IMAGING MANAGEMENT SYSTEM CI MANAGE RECOMMENDED ACTfON CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1ST Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For, CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute the attached amendment to the agreement with Linear Systems, subject to non- substantive changes approved by the City Manager and City Attorney, for the continued maintenance and upgrade of the Digital Imaging Management System (DIMS), which maintains all photographic still, video and audio evidence for the City and Police Department, in an amount not to exceed $55,542.90. DISCUSSION The Police Department`s Digital Imaging Management System (DIMS) was purchased in 2004 through Urban Area Security Initiative (UASI) funds and allows crime scene images to be captured and stored digitally. It currently houses nearly 200,000 crime scene photographs and countless hours of crime scene video footage. This system is a compulsory investigative tool that assists in the successful documentation of extensive crime scenes. Such a system is of paramount importance to criminal investigations and its maintenance, continued security, and storage redundancy is obviously essential. The responsible vendor, Linear Systems, has been accommodating, professional and consistent in servicing of the system thus far. The proposed amendment extends the term of the agreement through June 30, 2010, contingent upon funding in the FY 20009-2010 budget, and increases compensation to pay for upgrades and maintenance during the extended term. 25D-1 Digital Evidence Management System Maintenance May 4, 2009 Page 2 FISCAL IMPACT Funds are available in the Police Department's Investigations Bureau / Forensic Services Contractual Account #11-344-6291. APPROVED AS TO FUNDS AND ACCOUNTS: Paul M. Wa ters Chief of Police Police Department Francisco Gutierrez Executive Director Finance & Mngmt. Services Agency 25D-2 THIRD AMENDMENT TO DIGITAL IMAGING MANAGEMENT SYSTEM MAINTENANCE AGREEMENT THIS THIRD AMENDMENT TO AGREEMENT is entered into on April 6, 2009, by and between Linear Systems ("Consultant") and the City of Santa Ana, a charter city and municipal corporation of the State of California ("City"). RECITALS: A. The parties entered into Agreement # A-2005-166, dated July 21, 2005, (hereinafter "said Agreement") by which Consultant has provided digital imaging software and maintenance for use by the City's Police Department Forensic Division. B. Said Agreement was amended by agreement A-2006-166-01, dated March 28, 2007, to include additional equipment and provided extended warranties, support and maintenance. C. Said Agreement was subsequently amended by agreement A-2006-166-02, dated March 6, 2008, to extend the warranties, maintenance and support and to set forth the parties' agreement as to the annual maintenance period. D. In accordance with the terms and conditions of said Agreement, the parties wish to amend said Agreement to provide equipment upgrades, extend the term of the software support and maintenance provisions and increase compensation to pay for the upgrades and support and maintenance services during the extended term. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this Third Amendment to Agreement, the parties agree as follows: 1. Section 3.a, COMPENSATION, shall be amended to increase compensation by $23,000 to pay for upgrades to and an additional eight month term, November 1, 2008 through June 30, 2009, of on-site warranty, maintenance and support for hardware and software installed and maintained pursuant to said Agreement, as set forth in Exhibit 1, attached hereto and incorporated by reference. If the Santa Ana City Council approves funding for continued support and maintenance of the digital imaging softwaze, in the 2009/10 Citywide budget, Compensation will be increased by an additional $34,000 to pay for support and maintenance during the 2009/10 fiscal yeaz, as set forth in Exhibit 2, attached hereto and incorporated by this reference. 2. Section 4, TERM, shall be amended to extend the warranties, maintenance and support for an additional eight month period from November 1, 2008 through June 30, 25D-3 2009. If the Santa Ana City Council approves funding for continued support and maintenance in the 2009/ 10 Citywide budget, said approval will trigger an additional one-year extension of the term, through June 30, 2010. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment to Agreement on the date and year first written above. ATTEST: CITY OF SANTA ANA PATRICIA E. HEALY Clerk of the Council DAVID N. REAM City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney LINEAR SYSTEMS By: Laura Sheedy Assistant City Attorney (NAME) (Title) 25D-4 EXHIBIT 1 Linear Systems will provide on-site warranty & upgrades for the term from November 1, 2008 through June 30, 2009, as follows: Linear 1 year* on-site warranty & upgrades Download Station $1,833.33 Linear 1 year* on-site warranty & upgrades ImageServer $5,83333 Linear 1 year* on-site maintenance, upgrades & support for DB Case Management Rack Server $2,333.33 Linear l year* on-site maintenance, upgrades & support for Linear PDD Library $5,833.33 Linear 1 year* additional warranty Forensic Services Field Personnel Kit $1,990.50 Linear 1 year* additional warranty Forensic Services Lab Kit 20D $650.00 Linear 1 year* additional warranty Forensic Services Lab Kit XL-2 $143.33 Linear 1 year* on-site maintenance 8r, support for Digital Output Devices $3,600.00 Total *Pricing represents proration of services for an eight month period From 11/1/2008 - 6/30/2009 22 217.15 25D-5 EXHIBIT 2 Linear Systems will provide on-site warranty & upgrades for aone-year term, from July 1, 2009 through June 30, 2010, as follows: Linear 1 year on-site warranty & upgrades Download Station $2,750.00 Linear 1 year on-site warranty & upgrades ImageServer $8,750.00 Linear 1 year on-site maintenance, upgrades & support for DB Case Management Rack $3,500.00 Linear 1 year on-site maintenance, upgrades & support for Linear PDD Library $8,750.00 Linear 1 year additional warranty Forensic Services Field Personnel Kit $2,985.75 Linear 1 year additional warranty Forensic Services Lab Kit 20D $975.00 Linear 1 year additional warranty Forensic Services Lab Kit XL-2 $215.00 Linear 1 year on-site maintenance & support for Digital Output Devices $5,400.00 Total $33.325.75 25D-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 4, 2009 TITLE: WASTE DISPOSAL AGREEMENT WITH THE COUNTY OF ORANGE CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 15' Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and attached agreement with the County effective July 1, 2010 subject to City Manager and City Attorney. DISCUSSION Clerk of the Council to execute the of Orange for waste disposal services, non-substantive changes approved by the In 1997, the County and Cities of Orange County entered into waste disposal agreements for the disposal of solid waste in the County disposal system. These agreements will end on June 30, 2010. Since late 2006, the County and the Waste Management Committee of the Orange County City Manager's Association have worked to negotiate another multi-year agreement to fulfill city waste disposal needs and provide for the financial stability of the County disposal system. The negotiations included analysis of the rate structure by a third-party financial consultant and legal review of the agreement by a number of city attorneys. The final agreement was presented to the County Board of Supervisors for consideration on March 24, 2009 and approved. For the agreement to take effect, it requires that cities representing 85~ of the waste generated in the County adopt the terms within 120 days following approval of the agreements by the County Board of Supervisors. The agreement is for a 10-year time period. During the term of the agreement, all participants are required to direct their solid waste to the County system. The current disposal rate of $22.00 per ton has been in effect since 1997. Beginning July 1, 2010 the rate will be increased to $29.95 per ton and will be adjusted annually by the CPI. The new rate is estimated to increase the cost to the curbside customer by $1.20 per month and to 25E-1 Waste Disposal Agreement With The County of Orange May 4, 2009 Page 2 the commercial customer (3-yard bin, once per week pick up) by $4.95 per month. The rate of $29.95 per ton is competitive with landfills in surrounding counties. The agreement provides environmental protections to the cities against environmental incidents occurring at the landfills, disposal at a reasonable cost and long term disposal capacity for County and City residents and businesses. Staff recommends approval of the agreement. FNVIRONMISNTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT There is no fiscal impact in the current fiscal year or in fiscal year 2009-10. The new rate will take effect in fiscal year 2010-2011 and is estimated to increase the cost to the curbside customer by $1.20 per month and to the commercial customer by $4.95 per month. APPROVED AS TO FUNDS AND ACCOUNTS: James Ross Executive Director Public Works Agency Francisco Gutierrez Executive Director Finance & Management Services Agency ~~ 25E-2 WASTE DISPOSAL AGREEMENT Between THE COUNTY OF ORANGE, CALIFORNIA and the CITY OF SANTA ANA Dated , 2009 County Authorization Date: City Authorization Date: March 24.2009 County Notice Address: City Notice Address: Director OC Waste & Recycling 300 N. Flower Street, Suite 400 Santa Ana, CA 92703 Execution Copy 25E-3 TABLE OF CONTENTS P~ ARTICLE I DEFINITIONS AND INTERPRETATION Section 1.1 DEFINITIONS ..................................................................................................................................2 Section 1.2 INTERPRETATION .........................................................................................................................7 ARTICLE II REPRESENTATIONS AND WARRANTIES Section 2.1 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 ..................................................... 1 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 IV 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. t BREACH ........................................................................................................................................23 Section 5.2 CITY CONVENIENCE TERMINATION .....................................................................................23 Section 5.3 TERMINATION .............................................................................................................................23 Section 5.4 NO WAIVERS ................................................................................................................................24 Section 5.5 FORUM FOR DISPUTE RESOLUTION ......................................................................................24 ARTICLE VI TERM Section 6.1 EFFECTIVE DATE AND TERM ..................................................................................................24 Section 6.2 COMMENCEMENT DATE ...........................................................................................................25 Execution Copy 25E-4 ARTICLE VII GENERAL PROVISIONS Section 7.1 OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM .......................................26 Section 7.2 UNCONTROLLABLE CIRCUMSTANCES GENERALLY ........................................ ................26 Section 7.3 INDEMNIFICATION ..................................................................................................... ................27 Section 7.4 RELATIONSHIP OF THE PARTIES ............................................................................ ................27 Section 7.5 LIMITED RECOURSE .................................................................................................. ................27 Section 7.6 PRE-EXISTING RIGHTS AND LIABILITIES ............................................................. ................27 Section 7.7 NO VESTED RIGHTS ................................................................................................... ................28 Section 7.8 LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSING .......... ................28 Section 7.9 NO CONSEQUENTIAL OR PUNITIVE DAMAGES .................................................. ................28 Section 7.10 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 Section 7. l5 BINDING EFFECT ........................................................................................................ ................28 Section 7.16 NOTICES ........................................................................................................................ ................28 APPENDIX 1 ESTIMATED ANNUAL TONNAGE APPENDIX 2 CUMULATIVE TONNAGE TARGETS APPENDIX 3 CUMULATIVE CAPITAL COSTS APPENDIX 4 FORM OF HAULER ACKNOWLEDGEMENT Execution Copy 25E-5 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 25E-6 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 Ill 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 .seg. 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 et 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, permitting, 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 judgment is not the result of willful or negligent action, error or 2 Execution Copy 25E-7 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 1 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: (1) 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. Execution Copy 25E-8 "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, remediation 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 term 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 et .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 seq.) and the regulations contained in 10 CFR Part 40. 4 Execution Copy 25E-9 "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, filed 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 Heaith 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 25E-10 "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 party designated pursuant to subsection 3.5(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 Source-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 25E-11 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 term "hereafter" means after, and the term "heretofore" means before, the Contract Date. (B) Gender and Pluralitv. 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) Headings. 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) Counteroarts. This Agreement may be executed in any number of original counterparts. All such counterparts shall constitute but one and the same Agreement. Execution Copy 25E-12 (G) Applicable Law. This Agreement shall be governed by and construed in accordance with the Applicable Laws of the State of California. (H) Severabilitv. If any clause, provision, subsection, Section or Article of this Agreement shall be ruled invalid by any court of jurisdiction, 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. (I) 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: 1) 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 ofout-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 ofout-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 7) Cooperative Agreement, dated August 15, 2006, between the County and the City of Irvine. (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 II 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 25E-13 (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 Ci 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 must execute 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 25E-14 (D) Power to Oblieate 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 (ii) 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, under 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 month(s) closest in time was prior to the Term, 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 Section 4.2). 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 (aa) 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 suffer 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 that proof 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) Legal Challenges to Franchise S, sy tem. 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 Execution Copy 25E-15 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 Department 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. (I) City Actions Affecting- County. 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 Restructurine. 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 25E-16 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 or judicial 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; (2) Controllable Waste delivered at hours other than those provided in Section 3.5 hereof; (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 25E-17 (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 Franchise 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, aSource-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 Source-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 25E-18 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 may be 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 Weighing. 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 party 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 party'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 for purposes of the Public Records Act). SECTION 3.6 OTHER USERS OF THE DISPOSAL SYSTEM. (A) On or Before f 2009]. 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 l , 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 25E-19 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 anon-contract basis, at the Posted Disposal Rate. Such Self- Haulers shall not be entitled to dispose of Acceptable Waste for the Contract Rate. (E) Anolication 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 postclosure 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. SECTION 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 Citv-County Diversion Service A@reements. 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 1, 2010, in both cases contingent on the delivery to the Disposal System of an amount of Acceptable Waste at 15 Execution Copy 25E-20 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) remediating 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 7.3; or (iii) tonnage shortfalls to the extent permitted by Sections 4.2(B); (iv) average annual inflation prior to July 1, 2010 in excess of the levels set forth in Section 4.2(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) Countv 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 25E-21 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 4.2(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 ID CUUROOOOSAO ("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 CPI October Year I CPI - 1 = % increase in Contract Rate Step 2: Current Contract Rate x (1+ % increase in Contract Rate) =Contract Rate as of July 1 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 25E-22 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 1, 2013. Adjustments pursuant to this Section 4.2(F) shall not require compliance with the provisions of Section 4.2(I). (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 State's 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(G) shall not require compliance with the provisions of Section 4.2(I). (H) Calculation of Cumulative Inflation Rate. For purposes of Section 4.2(A)(iv) for adjustments prior to July 1, 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 Jul 1, 2008 1.0000 Jul 1, 2009 1.0356 Jul 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 CPl 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. Adjustments pursuant to this Section 4.2(H) shall not require compliance with the provisions of Section 4.2(1). (I) 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 4.2(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 Execution Copy 25E-23 consideration at such meeting in connection with the proposed rate adjustment. At any time from and after 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 (I 1) 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(I), 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 4.2(J), 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 (IS) 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 seg., 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 partt 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 part application, the County and the Challenging Cities shall also seek to confirm 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 IS 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 Execution Copy 25E-24 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 Section 4.2(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. (S) 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 pane 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 shall 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 enter judgment 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 4.2(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 diapositive 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 25E-25 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 4.2(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 4.3 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 Haulers 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 are 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 Copy 25E-26 Unrestricted Reserves or other funds of the County attributable to the Disposal System. "Restricted Reserves" shall include, but not be limited to, the following: (i) reserves for closure of components of the Disposal System to the extent required by Applicable Law; (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 program 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 1 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-YEAR FINANCIAL PROJECTION. The County shall annually, on or before May 1 of each year, prepare or cause to be prepared, an updated Ten-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: 22 Execution Copy 25E-27 1. 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. The 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 1 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) B Cit 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 conctusion 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 23 Execution Copy 25E-28 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 (1) 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 tennination. (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 parties' 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 25E-29 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 Execution Copy 25E-30 (D) Newl,, 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 180 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 WDA shall remain in full force and effect on the terms and conditions set forth therein. ARTICLE VIl 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. Miti a@ lion. 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 party'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 be 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 4.2 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 25E-31 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 INDEMNIFICATION. 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 Ill 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 parties 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 Ciri. 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 County. 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 25E-32 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 7.13 ASSIGNMENT OF AGREEMENT. (A) Assi ng~ment. 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. Execution Copy 28 25E-33 1N 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 By COUNTY OF ORANGE Director, OC Waste & Recycling Date By Date By [NAME] City Representative City of Santa Ana [NAME] City Representative City of Santa Ana APPROVED AS TO FORM: COUNTY COUNSEL ORANGE COUNTY, CALIFORNIA By Date Execution Copy 29 25E-34 APPENDIX 1 ESTIMATED ANNUAL TONNAGE Execution Copy 25E-35 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% Huntin ton Beach 6.0% Oran e 5.8% Garden Grove 5.1% Fullerton 4.5% Uninco orated Oran e Coun ~t' 4.3% Costa Mesa 3.6% New ort Beach 3.0% Lake Forest 2.6% Buena Park 2.5% Mission Vie'o 2.3% Westminster 2.3% Yorba Linda 2.3% Brea 2. i Tustin 2.0% C ress 1.9% 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 1.2% Stanton L 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 0.2% Villa Park 0.2% Total 100% (1) Unincorporated 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 (ii) execution of a Hauler Acknowledgement(s) by the Franchise Haulers) operating within such Participating City Execution Copy 25E-36 APPENDIX 2 CUMULATIVE TONNAGE TARGETS Execution Copy 25E-37 APPENDIX 2 Cumulative County Acceptable Waste Tonnage Target to be Used for Purposes of Section 4.2 (B) Fiscal Year County Acceptable Waste Cumulative County Tonnage Acceptable Waste Tonnage FY 2008-09 3,170,387 3,170,387 FY 2009-10 3,092,806 6,263,193 FY 2010-1 l 3,185,590 9,448,783 FY 2011-12 3,344,870 12,793,653 FY 2012-13 3,445,216 16,238,869 FY 2013-14 3,514,120 19,752,989 FY 2014-15 3,549,262 23,302,251 FY 2015-16 3,565,608 26,867,859 FY 2016-17 3,582,033 30,449,892 FY 2017-18 3,598,535 34,048,427 FY 2018-19 3,615,115 37,663,542 FY 2019-20 3,631,774 41,295,316 Execution Copy 25E-38 APPENDIX 3 CUMULATIVE CAPITAL COSTS to be Used for Purposes of Section 4.2(A)vi Fiscal Year endin June 30 Annual Capital Costs Cumulative Capital Costs 2009 $37,939,538 $37,939,538 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 Execution Copy 25E-39 APPENDIX 4 FORM OF HAULER ACKNOWLEDGMENT Execution Copy 25E-40 FRANCHISE HAULER ACKNOWLEDGMENT THIS FRANCHISE HAULER ACKNOWLEDGMENT, dated as of 2009 (the "Acknowledgment"), by and between the City of (the "City") and (the "Franchise Hauler"). WITNESSETH [WHEREAS, the City and the Franchise Hauler have heretofore entered into an agreement entitled dated as of (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 [SUBSTITUTE "AUTHORIZATION" THROUGHOUT IF APPLICABLE]] provides for 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 2008 (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 to 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 25E-41 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. 11. 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 25E-42 IN WITNESS WHEREOF, the parties have caused this Acknowledgment to be executed by their duly authorized officers or representatives as of day of , 2008. CITY OF Signature: Printed Name: Title: (Franchise Hauler) Signature: Printed Name: Title: Execution Copy 25E-43 25E-44 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 4, 2009 TITLE: AGREEMENT FOR PREVENTIVE MAINTENANCE AND REPAIRS OF MECHANICAL AND HVAC SYSTEMS ~C~s.~---~' CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1St Reading ^ Ordinance on 2nd Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER Approve and authorize the City Manager and the Clerk of the Council to execute the attached Amendment to Agreement with ACCO Engineered Systems for maintenance and repair services in an annual amount not to exceed $165,000, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION The Building Maintenance Division of the Finance and Management Services Agency maintains approximately 50 buildings, including fire stations, recreation and community centers, libraries, City Hall, the Police Administration building, and the Corporate Yard. These public buildings, ranging from ten to 50 years old, require various levels of service for complex mechanical systems, including heating and air conditioning equipment. To maintain these systems in good working condition, it is vital to have preventive maintenance and repair service available, including periodic inspection of chillers and boilers and repair of equipment on an as-needed basis. Of the recommended action, $120,000 is allocated to support the Police Administration and Holding facility HVAC equipment. These services ensure that City mechanical systems operate efficiently and safely, and meet all applicable laws and regulations. Upon the completion of an RFP process for this service, on June 5, 2007, the City Council approved an agreement with ACCO for a one-year period, with provision for three one-year renewals. The vendor has performed satisfactorily during the past contract period and staff recommends approval of the second renewal of the agreement. 25F-1 Agreement for Maintenance of Mechanical Systems May 4, 2009 Page 2 FISCAL IMPACT Funds are available in the Police Department Building & Facility, and the Finance Agency Building Maintenance accounts (nos. 11-350-6291 and 73-105- 6291) . APPROVED AS TO FUNDS AND ACCOUNTS: ~ ~ ,~~ T~ C ~i~ c~Yi~ ~' u`~7~..s Paul M. Walters Chief of Police Francisco Gutierrez Executive Director Finance & Mgmt. Services Agency 25F-2 FOURTH AMENDMENT TO AGREEMENT THIS FOURTH AMENDMENT TO AGREEMENT is entered into on May 4, 2009, by and between ACCO Engineered Systems, Inc., a California corporation ("Contractor") and the City of Santa Ana, a charter city and municipal corporation of the State of California ("City"). RECITALS: A. The parties entered into that certain Agreement #A2007-129, dated June 4, 2007, (hereinafter "said Agreement") by which Contractor has provided maintenance and repair of heating and ventilation systems in City facilities. B. By Amendment dated February 4, 2008, said Agreement was amended to include additional services and increase compensation to pay for those services. C. Said Agreement was again amended on June 2, 2008, to extend the termination date and increase compensation to pay for services during the extended term. D. Said Agreement was amended for a third time, to provide for emergency repair to the McFadden library and increase compensation to pay for those repairs, by Amendment dated July 7, 2008. E. In accordance with the terms and conditions of said Agreement, the parties wish to extend the term for an additional one-year period and increase compensation to provide for continuous services during the term of said Agreement. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this Fourth Amendment to Agreement, the parties agree as follows: 1. Section 2.a., COMPENSATION, shall be amended to increase compensation by $165,000.00 to pay for services during the FY 2009-10 term. 2. Section 3, TERM, shall be amended to extend the termination date to June 30, 2010. 3. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. // // 25F-3 IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amendment to Agreement on the date and year first written above. ATTEST: PATRICIA E. HEALY Clerk of the Council APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney By. rL~ ai.r _ ~ .~ L, C ~ ~ ~. LauFa Sheedy Assistant City Attorneys ' ^~ CITY OF SANTA ANA DAVID N. REAM City Manager ACCO ENGINEERED SYSTEMS, INC. (NAME) (Title) 25F-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 04, 2009 TITLE AGREEMENT FOR INTERNET ACCESS SERVICES FROM COGENT COMMUNICATIONS, INC. 1~-- CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1St Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER Approve and authorize the City Manager and Clerk of the execute the attached agreement with Cogent Communications, dedicated Internet access services for a two-year period with renew for three additional one-year terms, in an amount not $40,000 per year. DISCUSSION Council to Inc. for options to to exceed The City's current agreement for Internet access service is expiring and the service needs to be continued. The City relies on Internet access to support operations in every City Agency and Department with Internet email, outgoing access to the World Wide Web and incoming access to the City's web site and other web-accessible City applications. The City's Information Services Division issued an RFP seeking proposals for a dedicated Internet access connection of 45 Mbps bandwidth with service level guarantees. The RFP was posted on the City web site. In addition City staff proactively posted the RFP on two technical "matchmaker" web services which alert service providers of business customers needing services. This is a very common trade practice in this communication business sector. To receive the lower pricing and to ensure a stable Internet connection to support City operations, a two-year agreement period is being sought. Ten proposals were received and evaluated. An analysis of proposals compared four criteria: (1) qualifications and ability to provide the required services, (2) service levels and guarantees, (3) references, and (4) pricing. Based on the analysis of proposals by an evaluation team of City staff, the following is the ranking of service proposals: 25G-1 Agreement For Internet Access Services From Cogent Communications, Inc. May 04, 2009 Page 2 Vendor Assessment Totals (400 possible) ranking Cogent Communications 372 1 AT&T 300 2 Qwest 299 3 Telekenex 292 4 XO Communications 264 5 American Internet Services 261 6 Dial Tone Services, LLC 195 7 TelePacific Communications 173 7 Bridgeport technologies 163 8 DPSCIENCES Corporations / AT&T 136 9 City staff recommends that the City enter into a two-year agreement with Cogent Communications, Inc. to supply the dedicated Internet access service (with connecting "local loop" service). While Cogent's price proposal was not the lowest, their ability to support the City's current Internet Protocol (IP) addresses (the unique identifier assigned to each device connected to the Internet) more than makes up the difference. Changing addresses would be a very labor intensive time- consuming process which would cost significantly more than the difference between the lowest price proposal. The service agreement with Cogent contains service performance guarantees with monetary penalties for performance problems. There are also provisions in the agreement allowing the City to terminate in case of unsatisfactory performance. FISCAL IMPACT Funds are available in Technology Fund (account 109-700-6291). ~~C~1~ \ ~i ~~~_ ~ ~ A~ h`~ Francisco Gutierrez Executive Director Finance & Management Services Agency 25G-2 ~~gent C.OteMVK ICAT tONi Optical interne!t Dedicated Internet Access Customer Order Form North America us Cogent Communications, Inc. 1015 31st Street Washington, DC 20007 www.cogaMco.com Customer and Order Information Customer Name City of Santa Ana Customer Description Access /Other Order Date 15-Apr-2009 Requested Service Date 1-Jun-2009 Service Information Product Type Off-Net (NetCentric) Service Parameters Resell Customer Name No N/A Agent Deal (Name) Yes dvantage Comms Quoted Curency USD US Dollars Legacy Bandwidth Initial Burst Fee Installation Base Order N b Order Type Order Cogent de Id N Service Interface CDR Term Billing Model (per Mbps) Fee Monthly Fee um er Number o Mbps Months USD USD USD Renewal / 1-11479438 15365-0 DSO 45 24 Flat Rate 0.00 572.00 2,801.00 Downgrade Options Order Description Comments Option S l t d Installation Fee Morrth Fee ~ Number e ec e USD USD Public IP Addresses As described in IP Questionnaire Nob: IPO rods b W ~ubnOM wNh O~dp Fpm No BGP-4 Routing As described In BGP Questionnaire fJds: BdPo rods b M ~Wni11eE riN OiMr Fpm No MuRiBGP Secondary ASN Secondary ASN Owner Note: lOA(s) lasued by owners of Secondary ASN(s) need(s) to De submilled with Order Form. NO DNS Hosting As described in Product Rider DIA No Expedite Delivery As described in Product Rider No Billing Options N/A As described in Product Rider No Cabling XCONN Fiber Aa described in Product Rider No Equipment As described in Product Rider No Total Fees InstFlelae on Mouthy Fee USD USD Total Fees including Options (Note: Bunt Monthly Fees mey be etarped in sddNion as dsllrted in the ettsdxd Product Rider) 572.00 2,801.00 ••If Customer bas elected to lte billed in a currency other than the cunanoy used for Me Quoted Pdce, the Quoted Price will be conversion on such da e. COGENT willuse lhedcurrency convarsbnOrate as of the tlose W businesslf Pthe prmelvious day esnset font Bllling CiUrrenCyee USD US DOIlar8 at www.oanda.com. Initials Customer: DIA l.eyar 3 Order Form V31 c Cop~C rI sttolf~CorMderltlel Pape 1!2 C /"1 ~ ~ ~ ~ Cogent Communications, Inc. ~/ C p M M u a r C A T t O N~ Dedicated Internet Access 1015 31 et Street Customer Order Form VVaahington, Dc 20007 - - North America www.ccgentcc.com Customer Service Delivery Information Customer Contracting 8 Billing Information Tenartt/Datacenter Name City of Santa Ana Node ID 15365-0 Service Address 20 Civic Center Plaza Suite /Floor M-12 City, State, Province Santa Ana Postal Code 97201 Country USA ' ~ervlca aemery amreye wawa puce a~ wpera wrnarwuvn rven as uemwrv m w-~a o...w...a oue. Delivery Contact Name Tom Gergen Telephone (714) 647-6958 Ceephone Fax Email tgergen~ci.santa-ana.ca.us Cogent Contact Information Location Herndon, VA (Retention) Sales Address HQ: 1015 31st Street Washi ton, DC 20007 Office phone 877-875-3310 Fax 70335-8783 Service Provisioning sd~cogentco.com Customer Care support~cogentco.com Contract Documents Company Name City of Santa Ana Billing Address same Suite /Floor City, State, Province Postal Code Company Registr. Nr. Tax /VAT ID Number Billing Contact Name Fax Email Sales Name Dave Polant Account Phone 703.456.7644 Manager Email dpolanti~cogentco.com Sales sales~cogentco.com Billing billing~cogentco.com Termination terma~cogentco.com R The entire Customer Subscriber Agreement (CSA), entered into (1) Order Fonn between Customer and COGENT, is made up of the documents (2) Terms, as attached (initialed by Customer) (For current customers, if listed here. Capital~ed terra are dented in the text of the Terms or Terms are rat attached, the current Terms remain in force) Detinftion secdon of the Tema. All prior agreements, proposals, representatbns, statements, or understandings, whether written or (3) SlA (MIpJ/www.cogentco.com/}Iles/ps intemet/SW on_intemet.pdf) oral, ~nceming such Services, are superseded. Customer certifies (4) Product Rider, as attached (signed by Customer) that the documents constituting the CSA are the documents and foma that have been supplied to Customer by Cogent and that (5) Any other Rider or Addendum, as attached (signed by Customer) Customer hea made no changes to them. APPROVES AS TO FORM Notes ) i ~,~~~ Laura Stitt Sheedy Assistant City Attor y Signatures By signing below, Customer affirms and aclvtowledges that it has read the entire CSA and agrees to be bound by the provisions thereof. For Customer Signature Printed Name Tide Date DIA Layer 3 Order Forth V&1 c For Cogent Communications, Inc. Signature Printed Name Tale _ Date coo~~~, u~.d Iq' connder~tl.~ Page v2 Network Services Terms & Conditions North America (Ver. 02/08) Confidential c o g~et,~n~~to~5 © Cogent Communications, Inc. 2008 NETWORK SERVICES TERMS & CONDITIONS NORTH AMERICA 1. SERVICES AND TERM. 1.1. Pursuant to the CSA, Cogent will provide the Services to Customer for the Service chazges. Customer's signature on the Order Form or use of the Service or COGENT Network constitutes its acknowledgement and agreement to be bound by the CSA. Capitalized terms are defined at the end of these Terms. 1.2. Each Service's Initial Term is indicated on the applicable Order Form. Customer will be deemed to have accepted the Service as of the Service Date. At the end of the Initial Term, the CSA will renew for successive Renewal Terms equal in length to the Initial Term unless and until terminated as provided herein. 1.3. Customer may order additional Services or locations in North America through additional Order Forms, which will be governed by this CSA. Customer's account must be current in order to make changes to Services or order additional Services. 2. SERVICE CHARGES AND BILLING. 2.1. Service charges are on the Order Form and do not include applicable Taxes unless so indicated. New services or upgrades/relocations will result in additional fees/charges. [f a prior Service location remains installed after a new Service location is installed, Customer will be responsible for Service charges for both Service locations until terminated as provided for each Service. 2.2. Invoices are sent monthly in advance. Customer agrees to pay all charges and applicable Taxes for the Service upon receipt of the invoice without counterclaim, set-off or deduction. A late charge shall be added to Customer's past due balance of the lesser of 1.5% per month or the maximum legal rate. COGENT may change the specifications, Terms or charges for the Service for any upcoming Renewal Term by providing Customer at least sixty (60) days advance written notice. Customer agrees that its obligation to pay service charges and Taxes under this CSA shall survive the termination of the CSA. 2.3. Customers claiming tax exemption must provide COGENT with a properly executed exemption form. 3. SERVICE USE AND INTERRUPTION. 3.1. Customer's use of COGENT's Services or Network may only be for lawful purposes and must comply with COGENT's AUP. Transmission of any material in violation of any law, regulation or the AUP is strictly prohibited. Access to other networks connected to COGENT's Network must comply with such other networks' rules. Only Customers whose service location (as set forth on the Order Form) is a COGENT-owned or carrier neutral data center may resell COGENT's Dedicated [ntemet Access Service (but not any other Service offered in such location). Customers located in any other service location may not resell their Service, in whole or in part. 3.2. COGENT's obligations and Customer's exclusive remedies for failure of COGENT's Network or any Service are stated in the COGENT SLA. 4. TERMINATION. RESTRICTION OR SUSPENSION. 4.1. Prior to the Service Date, COGENT may terminate the CSA if not approved by COGENT corporate management (including credit check). COGENT also may restrict, suspend or terminate the CSA, Customer's use of or access to any Service, or both, at any time if (a) Customer is in material breach of the CSA (including but not limited to the AUP) and, in COGENT's sole judgment, an immediate restriction or suspension is necessary to protect the COGENT Network or COGENT's ability to provide services to other customers; or (b) Customer's account is unpaid sixty (60) days after date of invoice; or (c) COGENT facilities at Customer's location are unavailable, (i.e., no connectivity and building access). 4.2. Either Party may terminate the CSA: (a) at the end of an Initial Term or Renewal Term by providing the other Party with at least thirty (30) days prior written notice (notices provided during a monthly Renewal Term will not be effective until the end of the next month (i.e., notice received April 20th is effective June Ist); or (b) except as otherwise stated herein, during an Initial Term or Renewal Term if the other Party breaches any material term or condition of this CSA and fails to cure such breach within thirty (30) days after receipt of written notice of the same. 4.3. If a Service is terminated prior to the Service Date, Customer shall pay COGENT for all Initial Costs for such Service. If the Service is terminated after the Service Date, Customer shall pay COGENT (a) for the Service up through the date of termination; and (b) except in the case of termination by Customer as provided in Section 4.2 above, or by COGENT due to loss of connectivity or building access at Customer's building(s) under Section 4.1(c) above, the Initial Costs (unless already paid) and the Termination Charge. Customer acknowledges that because actual damages to COGENT caused by early termination of a Service order are uncertain and would be difficult to determine, the Termination Charge is a reasonable liquidated damage and is not a penalty. Any reconnections of the Service shall result in additional reconnection charges to Customer at COGENT's then-prevailing rates. 4.4. If Customer defaults in any of its payment obligations under the CSA, Customer agrees to pay COGENT's reasonable expenses, including but not limited to legal and collection agency fees, incurred by COGENT in enforcing its rights. All termination notices by Customer must be sent separately for each Service (including terminating one Service location after a Service is switched to a new Service location) and must be sent to terms@cogentco.com. 5. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY. 5.1. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED "AS IS," AND NEITHER COGENT NOR ANY OF ITS PROVIDERS, LICENSORS, OFFICERS, EMPLOYEES, OR AGENTS MAKES ANY WARRANTY, CONDITION OR GUARANTEE WITH RESPECT TO THE SERVICES OR AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES, UNDER THIS CSA OR OTHERWISE. THE SERVICES ARE PURCHASED W[TH KNOWLEDGE OF THIS WARRANTY LIMITATION. COGENT EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. CO('iENT DOES NOT MONITOR, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR, THE CONTENT OF ANY COMMUNICATION TRANSMITTED BY CUSTOMER OR OTHERS, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR UNAUTHORIZED USE OR MISUSE OF THE SERVICES. 5.2. WITHOUT PREJUDICE TO OR LIMITING OF COGENT'S RIGHT TO RECEIVE PAYMENT FOR SERVICES, COGENT'S ENTIRE LIABILITY FOR ALL CLAIMS OF WHATEVER NATURE (INCLUDING CLAIMS BASED ON NEGLIGENCE) ARISING OUT OF THIS AGREEMENT AND ALL OTHERS BETWEEN CUSTOMER AND COGENT, AND THE PROVISION BY COGENT OF FACILrrIES, TRANSMISSION, DATA, SERVICES OR EQUIPMENT INCLUDING, BUT NOT LIMITED TO, DAMAGE TO REAL/PERSONAL PROPERTY, SHALL NOT EXCEED THE LESSER OF (A) THE AMOUNT PAID BY CUSTOMER FOR THE SERVICE AT ISSUE IN THE PRIOR SIX (6) MONTHS TO THE ACTION GIVING RISE TO THE CLAIM, OR (B) ONE HUNDRED THOUSAND DOLLARS ($100,000.00) IN TOTAL; PROVIDED HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT APPLY FOR DEATH OR PERSONAL INJURY CAUSED BY COGENT, OR FOR ANY Page 1 of 3 Cogent Communications, Inc. 1015 31" St., N.W., Washington, D.C., 20007 202.295.4200 www.cogentco.com Customer: 25G- Network Services Terms & Conditions North America (Ver. 02/08) Confidential OTHER LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMTI'ED UNDER APPLICABLE LAW. 5.3. CUSTOMER RECOGNIZES THAT THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND NOT SUBJECT TO COGENT'S CONTROL. CUSTOMER AGREES THAT COGENT SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE SERVICES ARE TEMPORARILY OR PERMANENTLY UNAVAILABLE DUE TO MALFUNCTION OF, OR CESSATION OF, INTERNEE SERVICES BY NETWORK(S) OR INTERNET SERVICE PROVIDERS NOT SUBJECT TO COGENT'S CONTROL, OR FOR TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF CUSTOMER INFORMATION CARRIED ON SUCH NETWORKS OR INTERNET SERVICE PROVIDERS. COGENT SHALL HAVE NO I.IABB.TTY HEREUNDER FOR DAMAGES INCURRED OR SUMS PAID DUE TO ANY FAULT OF CUSTOMER OR ANY THIRD PARTY, OR BY ANY HARMFUL COMPONENTS (SUCH AS COMPUTER VIRUSES, WORMS, COMPUTER SABOTAGE, AND `DENIAL OF SERVICE' ATTACKS). COGENT IS NOT LIABLE FOR ANY BREACH OF SECURITY ON THE CUSTOMER'S NETWORK, REGARDLESS OF WHETHER ANY REMEDY PROVIDED IN THIS CSA FAfIS OF TES ESSENTIAL, PURPOSE. CUSTOMER AGREES THAT IT WILL NOT HOLD COGENT RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACES OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICES (INCLUDING THOSE WITH WHOM COGENT MAY CONTRACT TO OPERATE THE SERVICES), OR HOLD A THIRD PARTY RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, COGENT IN CONNECTION WITH THE SERVICES. WITHOUT LIMITING THE FOREGOING, CUSTOMER AGREES THAT IT WILL NOT HOLD COGENT RFSPONSIBLE FOR (A) THHLD PARTY CLAIMS AGAINST CUSTOMER FOR DAMAGES, (B) LOSS OF OR DAMAGE TO CUSTOMER'S RECORDS OR DATA OR THOSE OF ANY THIRD PARTY, OR (C) LOSS OR DAMAGE TO CUSTOMER ASSOCIATED WITH THE INOPERABILITY OF CUSTOMER'S EQUIPMENT OR APPLICATIONS WITH ANY COMPONENT OF THE SERVICES OR THE COGENT NETWORK. CUSTOMER AGREES TO MAKE ALL CLAIMS RELATED TO THE SERVICES DIRECTLY AGAINST COGENT, AND WAIVES ANY RIGHT TO RECOVER DAMAGES (DIRECTLY OR BY INDEMNITY) RELATED TO THE SERVICES BY CLAIMING AGAINST OR THROUGH A THIRD PARTY TO THIS CSA. 5.4. NEITHER COGENT NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, DELIVERING (INCLUDING SUSPENDING OR DISCONTINUING SERVICES) OR SUPPORTING THE SERVICES SHALL BE LIABLE TO CUSTOMER, ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNTIIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SERVICES OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, EVEN IF ADVISED OF THE POSSIBILTI'Y OF SUCH DAMAGES, WHETIIER UNDER THEORY OF CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE). 5.5. NO ACTION OR PROCEEDING AGAINST COGENT MAY BE COMMENCED BY THE CUSTOMER MORE THAN ONE (1) YEAR AFTER THE LAST DAY ON WHICH THE SERVICE WHICH IS THE BASIS FOR THE ACTION IS RENDERED, AND CUSTOMER ACKNOWLEDGES THAT THIS LHNITATION CONSTITUTES AN EXPRESS WAIVER OF ANY RIGHTS UNDER ANY APPLICABLE STATUTE OF LIMITATIONS WHICH WOULD OTHERWISE AFFORD ADDI7'fONAL TIME FOR SUCH A CLAIM. 6. INDEMNITY. 6.1. Customer will indemnify, defend and hold harmless COGENT and its directors, officers, employces, affiliates, and its agents and subcontractors from and against any claims, suits, actions, and proceedings from arty and all third parties, and for payment of any Losses, to the extent such Losses arise (a) as a result of non-compliance by Customer with its obligations under the CSA; (b) from any and all claims by any of Customer's customers or other third party end users in connection with a Service (including, without limitation, any claims regarding content transmitted using a Service or violation of data protection legislation), regardless of the form of action, whether in contract, tort, warranty, or strict liability; r v' however. that Customer will have no obligation to indemnify and defend COGENT against claims for damages for bodily injury or death caused by COGENT's Boss negligence or willful misconduct; or (c) from claims of copyright infringement and all manner of intellectual property claims, defamation claims, claims of publication of obscene, ®Cogent Communications, Inc. 2008 indecent, offensive, racist, unreasonably violent, threatening, intimidating or harassing material, and claims of infringement of data protection legislation, to the extent such Losses are based upon (i) the content of any information transmitted by Customer or by any of Customer's customers or authorized end users, (ii) the use and/or publication of any and all communications or information transmitted by Customer or by any of Customer's customers or authorized end users, or (iii) the use of Service(s) by Customer in any manner inconsistent with the terms of this CSA, including without limitation the AUP. 7. ADDITIONAL PROVISIONS. 7.1. Except as to payment obligations of Customer, neither Party shall have any claim or right against the other Party for arty failure of performance due to Force Majeure. 7.2. Neither Party is the agent or legal representative of ~ other Party, and this CSA does rat create a partnership, joint venture or fiduciary relationship between COGENT and Customer. Neither Party shall have any authority to agree for or bind the other Party in any manner whatsoever. This CSA confers no rights, remedies, or claims of any kind upon arty third party, including, without limitation, Customer's subscribers orend-users. 7.3. This CSA for Service is made pursuant to and shall be construed and enforced in accordance with the laws of the District of Columbia without regard to its choice of law principles. Any action arising out of or related to this CSA shall be brought in the District or Federal courts located in the District of Columbia, and Customer consents to the jurisdiction and venue of such courts. 7.4. Notices, if required, must be sent in writing by a-mail, courier or first class mail (postage prepaid) to the appropriate contact point listed on the Order Form, and are considered made when received at that address; provided, that termination notices to COGENT must be sent in accordance with Section 4.4 above. In the event of an emergency, COGENT may only be able to provide verbal notice first; such verbal notice will be followed by written notice. Customer is responsible for accuracy of its information on the Order Form, including points of contact. 7.5. Customer may not assign this CSA without COGENT's prior written consent, which consent shall rat unreasonably be withheld. Arty such assignment without COGENT's prior written consent shall be void. 7.6. Without limiting any other obligation which expressly survives the expiration or prior termination of the term of the CSA, the expiration or prior termination of the teml of the CSA shall relieve both Parties of arty further obligations hereunder, except with respect to the Sections 2. 3.4.3. 4.4 and 5 through 7. which shall survive any expiration or termination of these Terms. 7.7. If (but only if) required by COGENT's or Customer's agreement with Customer's Landlord: (a) any cessation or interruption in COGENT's Service does not constitute a default or constnrctive eviction by Customer's Landlord, and (b) Customer agrees to waive and release Landlord and its related parties from any liability in connection with any damages whatsoever incurred by Customer, including lost revenues, which arise, or are alleged to arise, out of any interruption of or defect in the COGENT Service, REGARDLESS OF WHETHER SUCH INTERRUPTION OR DEFECT IS CAUSID BY THE ORDINARY NEGLIGENCE (BUT NOT THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF A RELEASED PARTY. 7.8. The COGENT Network is owned by COGENT, or its licensors, and is protected by copyright and other intellectual property laws. Customer agrees that title to and ownership of the Services, in any form, shall at all times and in any event be held exclusively by COGENT. Customer shall be entitled to only such rights with respect to the Services as are specifically granted herein. 7.9. This CSA and such other written agreements, documents and instruments as may be executed in connection herewith are the final, entire and complete agreement between Customer and COGENT and supersede all prior and contemporaneous negotiations and oral representations and agreements, all of which are merged and integrated into this CSA. 7.10. This CSA and any Addendum thereto may be executed in one or more counterparts all of which taken together shall constitute one and the same instrument. Page 2 of 3 Cogent Communications, Inc. 1015 31°` St., N.W., Washington, D.C., 20007 202.295.4200 www.coaentco.com Customer: 25G-6 Network Services Terms & Conditions North America (Ver. 02/08) Confidential DEFINITIONS © Cogent Communications, Inc. 2008 AUP COGENT's Acceptable Use Policy as posted by COGENT (currently at http:/hvww.coaentco.com/htdocs/oolicv.mhol COGENT reserves the right to amend its AUP at any time, effective upon posting on the COGENT website. COGENT Cogent Communications, Inc. or its subsidiaries or affiliates. COGENT The telecommunications network and network components owned, operated or controlled by COGENT, including COGENT's Network fiber backbone, metropolitan fiber networks, any equipment connected to such fiber, and the software, data and know-how used by COGENT to provide the Services. Where COGENT services a building through its own facilities, the COGENT Network includes those facilities. The COGENT Network does not include customer premises equipment, customer-ordered telephony circuits, and any networks or network equipment not operated and controlled by COGENT. Customer Customer identified in the attached Order Form. CSA The entire Customer Subscriber Agreement between COGENT and Customer for provision of the Service, consisting of the Order Form, the Terms, the applicable product rider and the SLA. Equipment Customer's equipment, if any. Force Majeure Causes beyond a Party's control, including but not limited to: acts of God; fire; explosion; vandalism; cable cut; storm; flood or other similar occurrences; any law, order, regulation, direction, action or request of any government, including federal, state, provincial, municipal and local governments claiming jurisdiction over a Party or the Service, or of any department, agency, commission, bureau, corporation, or other instrumentality of any such government, or of any civil or military authority; national emergencies; unavailability of materials or rightsof--way; insurrections; riots, terrorist acts or wars (declared/undeclared); or strikes, lock-outs, work stoppages, or other labor difficulties, supplier failures, shortages, breaches or delays. Initial Costs Greater of (a) installation fees (if not paid); or (b) all third-party costs and charges incured by or charged to COGENT on behalf of Customer for the Service, including but not limited to local loop fees, cross-connect charges, and wiring fees. Initial Term Initial length of term for the Services as indicated on the Order Form. Landlord Customer's landlord, building owner or property/telecom manager. Losses Costs, fees, liabilities, losses, damages or penalties, including reasonable legal fees. Order Form Cover form to which these Terms are attached, identifying the specific Service(s) to be delivered. Party or Parties COGENT and/or Customer. Renewal Term Subsequent length of term for the Services after completion of the Initial Term. Service(s) Bandwidth services provided by COGENT under the Customer Subscriber Agreement. Service Date Earlier of date on which (a) COGENT deems that the Service is available for Customer's use at either the COGENT-defined demazcation point or last-available test point; or (b) Customer first uses the Service or the COGENT Network. SLA The Service Level Agreement as posted by COGENT (currently at www.cogentco.coml for Customer's specific Service(s). COGENT reserves the right to amend the Service SLAB at any time, effective upon posting on the COGENT website. Space Rented rack space from COGENT, if any. Tsx or Taxes All taxes arising in any jurisdiction, including without limitation all: sales, use, excise, gross receipts, value added, access, bypass, franchise, telecommunications, property (for co-location customers), consumption, or other taxes, fees, duties, charges or surcharges (however designated) which are imposed on or based on the provision, sale or use of the Service(s), including such taxes imposed directly on COGENT or for which COGENT is permitted to invoice Customer in connection with COGENT's performance under the CSA. Taxes do not include COGENT's income taxes. Termination Single payment equal to any third-party cancellation charges and the total remaining dollar value of the applicable Service Charge order through the Initial Term or Renewal Tern, as applicable. Terms Terms and conditions that apply to the Services COGENT provides to Customer . Page 3 of 3 Customer: Cogent Communications, Inc. 1015 31" St., N.W., Washington, D.C., 20007 202.295.4200 www.coaentco.com 25G-7 Product Rider - Dediaated Internet Access (Ver. 1-4) Confidential ®Cogent Communications. 2008 C ~ e n } PRODUCT RIDER - connuHlcATtons DEDICATED INTERNET ACCESS GLOBAL This product rider (Rider) amends the CSA entered into between Customer and COGENT for the Services specified therein. Unless otherwise defined herein, capitalized or defined lama in the CSA have the same meaning in this Rider. Jn the event of a conflict between forma, the following will be the order of priority: First, the Order Form; Second, this Rider, Third, the Terms; and Fourth, the SLA. 1. Ssrvice and Optlons Within the scope of the Dedicated htternet Access Service, COGENT tranamib IP-packets between the COGENT Network and associated netwaka of its Customers ere well as to and from the global htternet using COGENT's settlement-free peering agreements with other networks. Subject to their availability, Customer may select one or more options asaooieted with the Service such es listed in the Order Form, in which case Customer agrua to pay the related fees such ee indicated in the Order Form: Mu1tiBGP: Customer may connect to COGENf'a network with multiple BGP aeseians over a single port, euoh BGP sessions being on its own assigned AS (the Primary ASN) and ASs from third parties represented by Customer (the Secondary ASNs). Tn this case, Customer will be required to provide COGENT with a Letter of Authorization ("LOA'S issued by the third parties having registered the Secondary ASNe in order to activate such Service, and all interaotiata, being during provisioning or operatiow, related to BGP-sessions set up between COGENT's network and Secondary ASNa will be handled exclusively between COGENT and Customer. The fact that a BGP session is being set up between COGENT and other parties represented by Customer does not constitute a contractual relationship between COGENT and the other parties, this interaction is ruled by the contractual relationship established between COGENT and the Customer. COGENT will charge an additional Monthly Fee for each Secondary ASN oomeoted. Equipment: COGENT' may, at its Bole discretion and if available, provide equipment for certain Services. The fees for euoh equipment ere agreed in the Order Form will be added to Cwtomer'a invoice. COGENT does not guarmtee and is not responsible for any specific type of equipment, or any equipment at all, to be made available to Customer, and such equipment will belong to Customer upon receipt. Customer will provide rte own technical auppat to install, maintain, and integrate oquipmcet. COGENT will not provide a.-site technical support. Customer will be responsible for applicable replacement coats if the equipment is subject to any damage, unauthorized alteration/modification/repair, abnormal use, misuse, neglect, abuse, accident, improper installation, a• other acts caused by Customer, its employees, contractors, or any other person. Such action or inaction may void any manufacturer warranties. Customer further agrees to indemnify and hold harmless COGENT for any third party claim based on Customer's unauthorized alteration or modification of the equipment. COGENT ri not responsible for Service diatuptions cawed by any request by Cwtomer to relocate equipment. t~edite Delivery: COGENf's installation guarantee is strictly limited to the installation guarantee stated in the SLA. However, Customer may request in the Order Fonn an expedited delivery for his Service. COGENT will use canmeroially reasonable efforts to accommodate Customer's request; provided, however, that COGENT does not guarantee that any such request will be fulfilled (and any such guarantees given either orally or in writing are hereby disclaimed) nor does COGENT guarantee that the Service will be delivered on a specific date, such as the Requested Service Date indicated on the Order Form. 2. Burstahle Service If Customer ie purohaaing COGENT'a buratable Service, Customer will have a minimum bandwidth commitinent assigned for a given port (the Bandwidth Commitrnent or Committed Data Rate, "CDR'S. The Bandwidth Commihnent is agreed upon in the Order Form and ie the minimum amount of bandwidth that will be charged to Customer each month at the base Service price, even if not fully used by Customer doting a given month. Customer may burnt up to the maximum bandwidth that oars be carried on a given port, e.g. 1,000 Mbps for aGig-Ethernet port, subject to availability of bandwidth within the COGENT network. If Customer exceeds the Bandwidth Commitment on any burstable port in any given calendar month, Customer agrees to pay the additional per Mbpa charge fm excess bandwidth usage over the Bmdwidth Commitment es indicated in the Order Form. Such excess bandwidth usage is calculated by COGENT ere the difference between total bandwidth usage and Bandwidth Commitment, where total bandwidth usage is determined by collecting bandwidth usage samples every S minutes throughout the month for each port (a sample is based upon The average usage across the S-minute segment) and determining the appropriate percentile (90th or 9Sth) of usage as indicated in the Order Form. Only one sample is captured for each S-minute period, ever though two samples are collected -one for inbound utilization and ate for outbound utilization. The higher of the two samples is retained. For partial months, the total number of eampies for the calendar month is used; for samples where there is no usage, 0 is the recognized value. Fa• example, in a 30-day billing period, 8,640 samples are collected (12 aamples/hour x 24 hours/day x 30 days) and listed 5+om highest to lowest. In case of 95th percentile billing, the highest S%or 432 samples are discarded (representing the top S% of usage levels). The highest remaining sample (sample 433 in this example) is used to determine total bandwidth usage. For 90th percentile billing, the highest 10°/.or 864 samples are discarded (representing the top 10°~ of usage levels). The highest remaining sample (sample 865 in this example) ri used to determine total bandwidth usage. Under the "Summed Burst Billing" option available in conjunction with 90th percentile buret billing, COGENT calculates excess usage as the difference between the sum of total bandwidth usage mid the sum af' Bandwidth Canmitment aernaa all summed ports. For example, if Summed Buret Billing is applied over three ports with a Bandwidth Commitment of 200 Mbpa on each (i.e., a total Bandwidth Commitment of 600 Mbps) and the individus190th peroentile total bandwidth usage amounts were 70 Mbpa, 1 SO Mbps and S00 Mbpa, the excess bandwidth usage would be 120 Mbpa (70 + 1 SO + S00 - 600). Under the "Aggregate Buret Billing" option available in conjunction with 95th pereerttile burst billing, excess bandwidth wage ie aalculated by COGENT as the difference between total aggregated bandwidth wage and the summed Bandwidth Commitment across all aggregated ports, where total aggregated bandwidth usage is determined by adding wage samples every S minutes across all aggregated ports. For example, if throe are three aggregated Aorta, every S minutes three inbound samples and three outbound samples are collected, added up to one bandwidth wage value per direction, and the higher of the two values is retained in a 30-day billing period, the final 8,640 retained bandwidth wage values reflect the aggregated usage across all pate. These values are listed from highest to lowest. The highest S% or 432 values are discarded (representing the top S% of wage levels). The highest remaining value (value 433 in this example) is wad to determine total aggregated bandwidth wage. 3. Customer's Duties to Cooperate Cwtomer a• rte representative mwt cooperate with COGENT in the installation process, which includes accurate completion of art Order Form containing detailed demaroation information and other oneite contact listings, and of the necessary teahniosl questionnaires (IP Questionnaire, BGP Questionnaire, etc.) as provided by COGENT. Cuatomcr or its representative moat be physically present at the time of installation. During installation and at all other times, the Page 1 of 2 Cogent Commuaicationa www,cogentco.com See Order Form or web site for full contact details. 25G-8 Product Rider-Dedicated Internet Access (Ver. 1-4) Confidential ®Cogent Communications. 2008 Customer will allow access and if necessary provide escort, for COGENT'a or its representatives' necessary personnel to perform the installation and maintenance of the Service, to the designated building's phone closet(s) or telecommunioationa room or to the Customer's premises for the purposes of survey, installation, operations and maintenance of the Service, after prior arrangement between the parties. Customer's faihrre to cooperate shall release COGENT from its obligations pertaining to the Installation Guarantee included in the SLA but shall not suspend the Service Date or billing start date. in the event of technical problems relating to the Service, the Customer will ensure that COGENT'a or its representatives' service engineers have unrestricted access to the designated building's phone closet(s) or telecommuniaationa room or to the customer premises equipment. Customer's failure to provide access shall release COGENT from its obligations pertaining to the Network Availability part of the SLA. 4. Demarcation Pofot Within a COGENT data center: If Service delivery taken place within a COGENT data center, COGENT will deliver the Service at a demarcation point situated on the COGENT equipment. COGENT will provide, maintain and operate the necessary wiring ("Cross-Connect' far Customer to connect to COGENT's service at the indicated demarcation point. COGENT will provide such Cross-Connect for the fee set fath on the Order Form. Within a third par(y data center: ff Service delivery takes place within a third party data carter (i.e. that is not owned and/or operated by COGENT), COGENT will deliver the Service at a demarcation point situatod on the COGENT equipment. Unless otherwise agreed, Customer will at its own cost provide, maintain and operate the necessary wiring ("Grose-Connect' to connect to COGENT'a service at the indicated demarcation point. If Customer and COGENT agree that COGENT shall provide auc6 Cross-Connect, then COGENT will provide such Cross-Connect against fees such as indicated on the Order Form and the Service demarcation point will remain ~ the GENT equipment. Within an On Net corporate buildinY: If Service delivery taken place within an On-Net corporate building, COGENT will deliver the Service at a demarcation point situated on the COGENT equipment within the Customer's suite. COGENT will provide, maintain end operate the necessary wiring ("Riaet'~ between the building entry and the indicated demaroafi~ point. At an Ofj--Net Customer Location: Off-Net Services are being delivered to the Customer Location indicated in the Order Form through athird-party local loop to be provisioned by COGENT asr behalf of Customer. Ae auoh, the Customer and COGENT agree that the charges set forth in the Order Form for auoh Service assumes that each Service will be terminated at a pro-established demaroaton point or minimum point of entry (MPOE) in the building housing the Customer Location, as determined by the local access provider. COGENT may charge Customer additional nonrecumng charges not othawiae set forth basin for such Service where the Customer or local access provider determines that it is necessary to extend the demarcation point w MPOE through the provision of additional infraattucture, cabling, electronics or other materials necessary to rsach the Customer Location. It shall be the Cwtomer's responsibility to allow access to the facility for the local access provide, es well as to facilitate or coordinate with the property owner at the Customer Location, all additional apace and electricity determined by the local access provider to be necessary to provide the Service. COGENT will notify Customer of any additional non-recurring charges, if any, as soon as practicable after COGENT u notified by the local access provider of the amount of auoh charges. From time to time, COGENT may provide, and Customer may accept, budgetary estimates for the extension of the demarcation point to the Customer Location along with the initial Order Form. These estimated coats may be based on certain known costa or typical inatallationa that do not require extraordinary efforts by the provider to extend the service. Tn the evert actual costs exceed the budgetary estimate, Cogart will notify the Cwtomer as outlined above. in addition, the charges and the Term set forth in the Order Form for the Service assumes that auoh Service can be provisioned by COGENT through the local access provider selected by COGENT (and/or Customer) for the stated Term. in the event COGENT is unable to provision such Service through the selected local access provider or the selected local access provider requires a higher cost or longs Service Term they that set forth in the Order Form, COGENT reserves the right, regardless of whether COGENT has accepted the Order Form, to suspend provisioning of the Service hereunder and notify Customer in writing of any additional non-recurring charges, monthly recurring charges and/or Tam that may apply, or to cancel the Service set forth on the Order Form. Upon receipt of such notice, Customer will have five (S) business days to accept or reject such changes. If Customer does not respond to COGENT within the five (5) business day period, such changes will be deemed rejected by Customer. Tn the event Customer rejects the changes (whether affirmatively or through the expiration of the five (3) business day period) or if COGENT elects to cancel the Service ordetsd hetsin, the affected Service will be cancelled without cancellation or termination liability of either party. Accepted and agreed to: CUSTOMER: COGENT COMMUNICATIONS sy: 13y: Title: Title: Date: Date: APPROVED Aj "~U r~r-.:~, -~?` Laura tt~ :~~~eedy AsSistan~'' Page 2 of 2 Cogent Communioationa www.cogrntco.com See Order Form or web site for fall contact details. Request for Proposal: Dedicated Internet Access Service via Full T3 (DS-3) for City of Santa Ana, California Issued: February 20, 2009 Deadline: Not Later Than 3 pm P.s.T., March 16, 2009 Objectives: Summary: Full T3 (DS-3) ISP Requirements: ^ Dedicated Internet Access Service ^ Connection via full line rate 45 mbps T3 service ^ Direct circuit, private connection between City of Santa Ana and the ISP's backbone hub ^ Leased private dedicated line from the City to ISP ^ Not burstable or metered ^ Not fractional or tiered ^ Not share capacity ^ No distance sensitivity ^ Service to building at 20 Civic Center Plaza, Santa Ana, CA 92701 with main phone number of 714-647-5400 ^ Preference for continued use of existing IP addresses. As an alternative Vendor could assist the City in obtaining portable Class C address space and its own Autonomous System (AS) number The City does NOT need the Vendor to provide a router on the City-side of the service connection. Network Tier: The City would strongly prefer that the ISP provider be among the following: ^ Tier 1 Network ^ Transit-Free Network (including those ISP's that have settlement based or paid peering with one or more other networks) Service Levels: Network availability: Percentage packet delivery: Round trip latency: Packet Loss: Schedule maintenance notice Guarantees on service levels: 100% global network availability At least 99.9% Max 45 millisecond round trip latency No more than 0.1 At least three day email notice If service levels not meet, Vendor will compensate the customer (i.e. the City) Installation: Installation Wait: 30 business days preferred Includes the local loop installation Customer Support: Availability: Phone support 24 hours a day, 7 days a week, 365 days a year Contact Center Location: USA based 25G-10 Term: 24 months with option to extend at the City's option for two additional 12 month terms Pricing: The City needs the Vendor to clearly and fully identify their charges for the T3 ISP service, the local loop and any other related charges. Note: Prices proposed shall include all applicable federal, state, local and other taxes - separately identified. Monthly Recurring Charges: ^ T3 service (as described above) ^ Local Loop ^ Any other charges and/or exception/s in service must be identified One-Time Charges: ^ Installation ^ Provisioning ^ Any other charges Proposal Contents and Instructions for Proposers: To assess qualifications in providing T3 ISP services, as specified above, and to determine the strength and stability of the firm, every Proposing Vendor is required to complete and submit the Proposal Response Form (Appendix A) or a separate submission with a response to each item included in the "Proposal Response Form." IMPORTANT! Proposals must be submitted and received by the City of Santa Ana's Information Services Division on or beforE~: 3 pm P.S.T., March 16, 2009 Proposals may be walked in, faxed, mailed or emailed. If walked in, come to: City of Santa Ana Information Services Division 20 Civic Center Plaza ROOM B22 [in the basement of City Hall] Santa Ana, CA 92701 If mailed, sent to: City of Santa Ana Information Services Division M-12 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702-1988 If faxed, fax to: City of Santa Ana Information Services Division 714-647-5406 If emailed, sent to: ISD_proposals@santa-ana.org Requests for information or questions regarding this RFP or the process may be directed to: Thomas J. Gergen Manager, Information Services Information Services Division 714.647.6958 voice tgergen@santa-ana.org 25G-11 Proposal Evaluation Procedure Selection shall be based upon a competitive selection process and not limited to price alone. Proposing Vendors must satisfy the City in their ability to perform the services required. In the judgment of the City, any proposal that does not provide adequate evidence that the Proposer has the capabilities to perform the services sought by the City will not be further considered. It is not the City's intention to exclude very high bids or to automatically award an agreement to the Proposer of the lowest price for services. The City seeks to get the best balance of service value and price. Based on the information provided in their RFP response, each of the Proposers will be evaluated by a City selection team and will be assigned a point score for each of five evaluation criteria. While evaluation is subjective by its nature, the City selection team will judge each proposal on its merit in only the evaluation criteria areas. The weighted evaluation criteria include: Criteria Max Points Qualifications and ability to provide require services 30 Service Levels and Guarantees 20 References (basis is quality of service to similar size/complexity organizations) 10 Cost 40 Total 100 An interview (in person or via phone) may be required for clarification purposes if so determined by the evaluation team. However, only top rated Proposers will be asked to participate in the interview process. The selection recommendation will be based on the accumulated point score for all criteria and any clarifying interviews. Based on the evaluation of the City selection team, a recommendation will be made to the City Council to authorize an agreement between the City and the selected Vendor for the services sought in this RFP. Definitions: The following words as used in this Request for Proposal (RFP) shall be understood to refer respectively to: Word in RFP Definition Cit The Cit of Santa Ana, California. Firm Means the same and is used interchan eable with the term "Vendor". Pro oser The erson, firm or cor oration res ondin to this RFP. Vendor A person, firm or corporation responding to this RFP and may be selected by the City to enter into an agreement with the City to the services identified in this RFP. For the ur oses of this RFP, "Vendor" is s non mous with "Pro oser." 25G-12 APPENDIX A -Proposal Response Form (Fill in this form or submit a separate response which addresses each item.) Proposal to Provide Dedicated Internet Access Service via Full T3 (DS3) for City of Santa Ana, California Name of Proposing Firm: Cogent Communications Vendor's Principal Location: Washington, DC Vendor's URL www.cogentco.com Contact Name for Proposal: Dave Polant Contact's Mailing Address: 1015 31 s NW WASH, DC 20007 Contact's Phone Number: 703.456.7644 Contact's email address dpolant@cogentco.com Please submit answers to the following questions (Note: Proposer may attach additional or substitute pages as needed to complete responses.) 1. Vendor Overview: Number of years providing ISP Services: 10 Legal Name of Vendor: Cogent Communications Group If Vendor is owned or controlled by another No company, the name of that company: D&B D-U-N-S Number 2. MAXIMUM of three references of government organization for which your firm provides similar ISP T3 services as sought by the City. Reference One: Name of Client Cit of Santa Ana Location of Client's location Cit and State Santa Ana, CA Contact Knowledgeable with Vendor's provided services: Tom Gergen Contact's hone number 714 647-6958 25G-13 APPENDIX A Proposal Response Form (Continued) Reference Two: Name of Client Cit of Gainesville, FL Location of Client's location Cit and State Gainesville, FL Contact Knowledgeable with Vendor's provided services: Ed Hoffman Contact's hone number WorkPhone 352.393.1073 Reference Three: Name of Client City of Walnut Creek Location of Client's location Cit and State CA Contact Knowledgeable with Vendor's provided services: Laura Peabody Contact's phone number 925.943.5896 3. Essential Requirements Can City Required Terms and Conditions MeeU Can Not Identify any exceptions Alternatives Provide Meet or or Agree Decline (explain) To Service Sought: Full T3 DS3 ISP service O Yes ^ No ^ Dedicated Internet Access Service O Yes ^ No ^ Connection via full line rate 45 mbps T3 ~ Yes service ^ No ^ Direct circuit, private connection between O Yes City of Santa Ana and the ISP's backbone ^ No hub ^ Leased private dedicated line from the City ~ Yes ^ No to ISP ^ Not burstable or metered D Yes ^ No ^ Not fractional or tiered ~ Yes ^ No ^ Not share capacity D Yes ^ No ^ No distance sensitivity O Yes ^ No ^ Can provide for the City to continue to use ~ Yes ^ No existing IP addresses ^ Can assist the City in obtaining portable ^ Yes OO No Class address space and its own See above- can keep Autonomous System (AS) number existing IPs Term: ^ 24 months with option to extend at the ^ Yes ^ No City's option for two additional 12 month terms 25G-14 APPENDIX A Proposal Response Form (Concluded) Can City Required Terms and Conditions Meet/ Can Not Identify any exceptions Alternatives Provide Meet or or Agree Decline (explain) To Service Levels: ^ Nefinrork availability: 100% global neiwork ~ Yes ^ No See SLA attached availabili ^ Percenta a acket delive :99.9% ^D Yes ^ No See SLA attached ^ Round trip latency: 45 millisecond round ^D Yes ^ No See SLA attached tri latenc ^ Guarantees on service levels: If service ^D Yes ^ No See SLA attached levels not meet, Vendor will compensate the customer i.e. the Ci ^ Explain any compensation if Vendor fails to See SLA attached meet Service Level commitments Installation Wait: ^ Installation of service including local loop O Yes ^ No Already installed rovided within 30 business da s Technical Customer Support: ^ Provide via toll free hone number ~ Yes ^ No ^ Provide 24 hours a day, 7 days a week, ~ Yes ^ No 365 da s a ear ^ Provide from location in USA O Yes ^ No Network Tier: Vendor is amon Tier 1 Network ISPs ~ Yes ^ No Vendor is amon Transit-Free Network ISPs ~ Yes ^ No 6. Pricing Identify your firm's charges: EXISTING LOOP Straight Renewal Charges Monthly Pricing Describe T3 (DS3) (as described in RFP) $1350.00 Full 45 megs to the Internet Local Loop $2623.00 Local loop back to COI POP (Pac Bell) Any other Charges and/or exce tion/s in service New Install: One-Time Charges Price Describe Installation $572 Install Charge from Qwest Provisioning Any other charge/s 25G-15 Recurring Charges Monthly Pricing Describe T3 (DS3) (as described in RFP) $1350.00 Full 45 megs to the Internet Local Loop $1451.00 Local loop back to COI POP Qwest Any other Charges andlor exce tion/s in service 25G-16 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 04, 2009 TITLE: AGREEMENT FOR MAINFRAME COMPUTER MAINTENANCE WITH SYMCO GROUP, INC. CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1s1 Reading ^ Ordinance on 2nd Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER Approve and authorize the City Manager and the Clerk of the Council to execute the attached agreement with Symco Group, Inc., for mainframe maintenance, equipment, and technical services on a month-to-month basis for a period of up to one year in an amount not to exceed $84,000. DISCUSSION While the City is converting to a new financial system to record and process accounting related transactions, the City needs to continue to utilize its legacy financial software until the transition is complete. The legacy Lawson financial system resides on the Unisys V380 mainframe computer equipment. The original manufacturer of the Unisys V380, the Unisys Corporation, no longer provides service and support for the mainframe computer. SYMCO Group, Inc. is currently the only firm in this geographical area providing V380 model equipment maintenance. The City has contracted with SYMCO Group, Inc. since 1998 for computer equipment maintenance. The company has been responsive and staff is satisfied with their service. The agreement will provide very difficult to obtain mainframe maintenance service prior to implementation of the new financial system. The agreement with the Symco Group will cover a period of no more than one year and will allow the City, with 30 days notice, to cancel coverage on any or all of the equipment maintenance without cost penalty. 25H-1 Agreement For Mainframe Computer Maintenance from Symco Group, Inc. May 04, 2009 Page 2 FISCAL IMPACT Funds are available in the Information Services account for Other Contractual Services (account 109-171-6291). T 5 (Francisco Gutierrez Executive Director Finance & Management Services Agency 25H-2 AGREEMENT BETWEEN THE CITY OF SANTA ANA AND SYMCO Group, Incorporated THIS AGREEMENT, is made and entered into this 4th day May, 2009, 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 SYMCO Group Incorporated ("Vendor"). RECITALS: A. The City desires to retain the services of Vendor to provide the City with specialized computer maintenance. B. Vendor represents that Vendor is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Vendor represents that it is knowledgeable in its field and that any services performed by Vendor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. THEREFORE, in consideration of their mutual and respective promises, the parties hereto do hereby state as follows: Terms and Conditions The term of this Agreement shall cover monthly periods beginning on July 1, 2009 and ending not later than June 30, 2010. All terms and conditions more fully set forth in the SYMCO "Equipment Maintenance Agreement", Agreement Number 18061995, shall have full force and effect in this Agreement. Said terms and conditions are attached hereto as Exhibit A, and incorporated herein by reference. The City will validate for parking (in the lot south of City Hall) for Vendor visits necessary to perform the Scope of Services. 2. Scope of Services The Vendor shall provide services as defined in Exhibit A. Compensation The City will pay to Vendor total compensation under this Agreement in a monthly amount which shall not exceed $6,364.63, plus any applicable taxes, for an amount not to exceed $84,000 during the term of this Agreement. Should either party terminate this Agreement prior to the end of the current month of service, a prorated return of the amount prepaid shall be returned to the City. 25H-3 Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 4. Insurance Prior to undertaking performance of work under this Agreement, Vendor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Vendor shall maintain commercial general liability insurance naming the City, its officers, agents, volunteers, and employees as additional insureds) 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 Vendor'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. Vendor shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall be approved in form by the City Attorney. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Vendor, if Vendor 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, Vendor agrees to obtain and maintain any employer's liability insurance with limits no less than required by State law. d. The following requirements apply to the insurance to be provided by Vendor pursuant to this section: (i) Vendor shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. e. If Vendor fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Vendor's right to be paid for its time and materials expended prior to notification of termination. Vendor waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of 25H-4 insurance by the City. 5. INDEPENDENT CONTRACTOR Vendor 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 Vendor performs the services which are the subject matter of this Agreement; however, the services to be provided by Vendor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Vendor 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. INDEMNIFICATION Vendor agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, Vendors, 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 health, and claims for property damage, which may arise from the direct or indirect operations of the Vendor or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Vendor 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. 7. CONFIDENTIALITY If Vendor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Vendor 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 Vendor 25H-5 disclosed in a publicly available source; (c) is in rightful possession of the Vendor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Vendor without reference to information disclosed by the City. CONFLICT OF INTEREST CLAUSE Vendor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With courtesy copies to: Information Systems Manager City of Santa Ana 20 Civic Center Plaza (M-12) P.O. Box 1988 Santa Ana, California 92702 and, City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 To Vendor: SYMCO Group, Inc. 105 Satellite Boulevard Suwanee, GA 30024 Attn: Bela A. Kenessey telefacsimile (770) 904-7034 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other 25H-6 communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Vendor, 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 Vendor. 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 and conditions hereof, shall not bind or obligate Vendor nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Vendor, Vendor 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 Vendors retained by City. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination, without any early termination penalty. In such event, Vendor shall be entitled to receive and the City shall pay Vendor compensation for all services performed by Vendor prior to receipt of such notice of termination, subject to the following conditions: 13. DISCRIMINATION Vendor 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. Vendor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 25H-7 14. JURISDICTION -VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Vendor 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. Vendor shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. (signatures continued on next page) 25H-8 ATTEST: PATRICIA E. HEALY Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher City Attorney By: LAURASHEEDY Assistant City Attorney CITY OF SANTA ANA DAVID N. REAM City Manager RECOMMENDED FOR APPROVAL: SYMCO Group, Incorporated FRANCISCO GUTIERREZ Executive Director Finance & Management Services Agency VENDOR [signature] Name: Title: Tax ID# 25H-9 EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92702; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92702. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # _ Issued to this endorsement form as a part of Named Insured Countersigned by Authorized Representative 25H-10 SYMCO GROUP INCORPORATED MAINTENANCE AGREEMENT 18061995 (Rev-3) 1. TERM a. The initial term of the Agreement shall be Monthly from date of acceptance. This agreement will automatically renew on a month to month basis unless Customer provides thirty days prior written notice to Vendor of its decision to terminate this agreement. b. The maintenance rates stated in the Equipment Maintenance Exhibit shall not increase during the initial term of this contract. After the initial term of this agreement, should a price increase occur, it shall not exceed six percent (6%) per yeaz. Any applicable tax will be added to other charges specified, as appropriate. 2. MAINTENANCE a Symco Group shall provide on-site support and parts to maintain equipment in good operating condition. Such maintenance shall be provided, as required, and at such charges as designated by this contract. Symco Group will provide the on-site support and maintenance services in a professional manner, and in accordance with the highest industry standards and with care, skill, and diligence. Symco Group shall comply with all applicable laws and regulations relating to providing the on-site support and maintenance services. Symco Group represents and warrants to CUSTOMER that neither the on-site support or maintenance services will infringe any patent, copyright, trademark, or any proprietary rights of a third party or constitutes a misuse or appropriation of a trade secret and Symco Group shall indemnify and hold harmless the CUSTOMER for all claims relating thereto including reasonable attorneys' fees and costs of suit. b: Response time for service is guaranteed 4 hours from the time the call is taken by Symco Group dispatch to a field engineer being on-site. c. Parts necessary to the proper functioning of the equipment shall be furnished at no additional charge, except parts damaged by causes listed in Paragraph 10.b herein. d. All of Symco Group's expenses incurred in or arising from the performance of support hereunder including, but not limited to, expenses for travel, hotel, car rental, and meals are included in the total monthly maintenance rates stated in the Equipment Maintenance Exhibit attached hereto and made a part hereof as Attachment 1. 3. ATTACHMENTS If CUSTOMER employs additional attachments, features, or devices to the equipment, makes alterations to the equipment, or permits the maintenance of the equipment by other than Symco Group personnel, Symco Group shall not be liable for loss or damage to CUSTOMER resulting there from. If Symco Group incurs additional service cost on behalf of the CUSTOMER as a consequence there of, CUSTOMER shall pay for Symco Group's cost. 4. SUPPLIES Maintenance chazges do not include the furnishing of supplies (such as ribbons, cards, paper tape, paper forms, magnetic tape, or batteries). CUSTOMER shall use only supplies, which meet Manufacturers specifications, when the performance or maintenance of the equipment may be affected. If supply is in question, CUSTOMER will consult with Symco Group personnel prior to using anew /different supply. 5. SHIPMENT OF EQUPMENT (IF DEPOT MAINTENANCE) a The parties agree that the method of equipment packaging and shipment, both to and from the Service Depot, shall be in accordance with commercially reasonable standards, consistent with the nature of the equipment and the hazards of tra~isportation and handling. CUSTOMER agrees to package the equipment along with its service log in an authorized Symco Group container for shipment to the Service Depot. Symco Group agrees to return the serviced equipment to CUSTOMER in an authorized Symco Group container. b. All transportation expenses will be borne by CUSTOMER 6. CHARGES AND PAYMENTS a CUSTOMER agrees to pay maintenance charges submitted by Symco Group of a correct invoice thereof. Invoioes shall be submitted on or about the first day of each period for which services are to be provided. b. A late payment charge of 1.5% per month, compounded monthly, shall apply to any payment due from the CUSTOMER that is in arreazs for a period exceeding thirty (30) days. c. This agreement may be suspended by Symco Group, if payment is not made after 30 days. If payment is 60 days late, Symco Group reserves the right to terminate this agreement. c. If CUSTOMER should perceive non-performance, the Symco Group contract allows for a sixty day "out" based on the following specifications and procedures: • CUSTOMER notifies Symco Group of problems / dissatisfaction in writing • Symco Group has thirty days to rectify to CUSTOMER satisfaction. If not resolved, CUSTOMER has the right to terminate the contract within thirty 30 days. 7. PREPAYMENT OPTION For customers choosing a prepay discount. It is understood that CUSTOMER is receiving a discount by choosing this option. Vendor shall not be required to refund any prepayment. The only exception would be for Non- Performance outlined in Item 6c of this agreement. 8. SYMCO GROUP MARKETING Unless otherwise stated, CUSTOMER agrees to allow Symco Group to publish a press release on the Symco Group website. If required by CUSTOMER, prior to publishing the release Symco Group will email subject matter to CUSTOMER for input and approval. Page 1-3 25H-11 ~'`~wHIBIT Q SYMCO GROUP INCORPORATED MAINTENANCE AGREEMENT 18061995 (Rev-3) income) levied or imposed by reason of the transactions under 9. CUSTOMER INSTALLATION RESPONSIBILITIES this agreement. CUSTOMER shall, upon demand, pay to CUSTOMER shall: (I) continuously maintain a tog of Vendor an amount equal to any such tax(es) actually paid or hazdwaze errors, so that Symco Group Engineers can required to be collected or paid by Vendor. troubleshoot problems. This log needs to be available to Symco Group upon request, (II) continuously maintain 12. CUSTOMER RESPONSIBLTTIES environmental conditions, electrical requirements and site It is understood that it is the CUSTOMER'S responsibility to facilities in accordance with Manufacturers recommendations license all software applications that are used on the and specifications, (III) not abuse or misuse the equipment, equipment supported by Symco Group. CUSTOMER and (N) insure that CUSTOMER personnel are adequately understands these responsibilities and will hold Symco Group trained to operate equipment. harmless for any and all applications that are not properly licensed. 10. GENERAL CONDITIONS a. The equipment must be in good operating condition on the 13. CONFIDENTIALTTY Effective Date of this Agreement, as determined by Either Party and its employees may learn of Confidential CUSTOMER and Symco Group. Information (as hereinafter defined) of the other party or it b. Symco Group is not obligated under the terms of the may be desirable or necessary for a party to disclose Agreement to repair damage to equipment caused directly or Confidential Information to the other party and its employees. indirectly as a result of accident, negligence, or abuse of or by Both Parties and their employees understand that Confidential CUSTOMER or third parties, failure of CUSTOMER to Information is valuable and proprietary to the disclosing party maintain required environmental conditions; causes external to and/or its affiliates (and/or to third parties that have entrusted the system such as electric power fluctuations or failures; the Confidential Information to the disclosing party and/or its terrorism, fire, windstorm, the elements, or acts of God; or affiliates). As such, both parties and their employees agree to attachment of non-qualified equipment or features to the hold all Confidential Information of the other party in strictest equipment by CUSTOMER or third-parties. Such repair will confidence and, except as required under this Agreement, be rendered only upon specific order by CUSTOMER, and neither party nor its employees will at any time directly or after approval by CUSTOMER of the estimated charges indirectly, use, publish, disseminate, describe or otherwise thereof. disclose Confidential Information of the other party in any c. This agreement shall be mutually transferable with the consent form to any person or entity without the other party's express of the other party which consent shall not be unreasonably prior written consent. The term Confidential Information shall withheld, and shall remain in effect until terminated as herein include, but shall not be limited to: (a) customer and provided. If CUSTOMER is unhappy with the assignment of prospective customer lists, and details of agreements with the contract, the contract can be cancelled immediately, with customers; (b) acquisition, expansion, marketing, financial and no penalty. other business information and plans; (c) research and d. With a 60 day notice, Symco reserves the right to terminate development data; (d) data concerning customers business this agreement if the revenue in the territory does not support practices or any other data compiled by you or any of your the field service engineer that is supported. affiliates; (e) computer programs; (fj information concerning e. This agreement shall be carried out to its entirety. If sources of supply; (g) information regarding the identity of CUSTOMER wants to cancel the agreement prior to specialized employees and vendors and Confidential completion, CUSTOMER agrees to pay Symco the remainder Information developed by them for a party and/or its affiliates; of the balance of the contract upon date of termination. (h) purchasing, operating and other cost data; (i) special f. IN NO EVENT SHALL EIT'IffiR PARTYBE LIABLE FOR customer needs, cost and pricing data; (j) employee LOSS OF PROFITS, INDIRECT, SPECIAL, information (including, but not limited to, personnel, payroll, CONSEQUENTIAL OR OTHER SIMII,AR DAMAGES compensation and benefit data and plans); and (k) Identifiable ARISING OUT OF ANY BREACH OF THIS AGREEMENT. information, including all such information recorded in g. This agreement may not be amended except in writing signed manuals, memoranda, projections, minutes, plans, drawings, by an authorized representative of CUSTOMER and a Symco designs, formula books, specifications, computer programs Group Officer. This agreement constitutes the entire and records, whether or not legended or otherwise identified agreement between the parties and supersedes all prior by the disclosing party as Confidential Information, as well as communications, proposals or agreements relating to support such information that is the subject of meetings and service of the equipment and solutions. discussions and not recorded. Confidential Information shall not include such information that is generally available to the 11. TAXES public (other than as a result of a disclosure by the receiving CUSTOMER shall pay, in addition to the amounts payable party or its employees) or that is disclosed to either party or its under this agreement, all local, state, and federal excise, sales, employees by a third party under no obligation to keep such use, personal property, gross receipts and similar taxes information confidential. Both parties shall comply with all (excluding taxes imposed on or measured by Vendor's net laws relating to the privacy of any such Confidentiai Page 2-3 25H-12 SYMCO GROUP INCORPORATED MAINTENANCE AGREEMENT 18061995 (Rev-~) Information. Further, both parties shall use;tts best efforts to safeguard Confidential Information of the other party from 15. access by unauthorized individuals and to ensure that its employees comply with the terms of this Section 16. This Section shall survive the termination of this Agreement. 14. ARBITRATION It is agreed that any dispute relating to the terms, interpretation, or performance of this Agreement (other than claims for preliminary injunctive relief or other pre judgment remedies) shag be resolved at the request of either party through abbitration. Arbitration shall be conducted in Atlanta, Georgia through the Better Business Bureau of Metropolitan Atlanta under the rules and procedures of the American Arbitration Association ("AAA"). STATE OF GEORGIA It is agreed that laws of the State of Georgia shall govern without reference to the place of execution or performance of same. In any legal action or arbitration proceeding brought on account of a breach, the prevailing party shall recover from the other party all costs of litigation or abbitrafion, including reasonable attorney's fees. 16. CUSTOMER BY TTS SIGNATURE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS TT AND AGREES TO ALL ITS TERMS AND CONDITIONS. ACCEPTED: SYMCO GROUP, INCORPORATED 105 Satellite Boulevard Suwanee, rgia 30024 'r BY: '`'"~ (Authorized Signature) TITLE: DATE: ~° ~ CUSTOMER: CITY OF SANTA ANA 20 Civic Center Plaza Santa Ana, California 92702 BY: TITLE: DATE: (Authorized Signature) Page 3-3 25H-13 ~~ S YMC~O GROUP EQUIPMENT MAINTENANCE EXHIBIT Effective Days Per Week Monday -Sunday ®On Site Maintenance Effective Hours Per Day 0000-2400 ^ Depot Maintenance Effective Date : July 1, 2009 ^ Phone and Tech. Support Reference Number 18061995 (Rev-3) Equipment Location ^If same as INVOICE To Company CITY OF SANTA ANA Street 20 Civic Center Plaza City Santa Ana State California Zip Code 92702 Telephone 714-647-6958 Contact Mr.Tom Gergen Invoice To Address Company CITY OF SANTA ANA Street PO Box 92702 City Santa Ana State California Zip Code 92702 Attention: Purchasing Division M-16 ~. . ~ yon rl.ln~ r, `pN crr .y~. 2..~i...hM •.i ~.&. .`Ji.~~l.: i4~ JY ~S~"x:-. i > ~ ~c~ `ter ~ 7'~ "` ~_F_ .. ggbh _ 1 V380 PACKAGE SYSTEM $2,521.27 1 V300-MEM 20 MB MEM MOD $313.77 1 V300-12 10 - 20 MEG MEM UPGRADE INCL 2 X246-92 DLP, PRINTER, HSSI $147.38 1 X395-93 DLP, FIPS, TAPE $73.69 1 X351-94 DLP, UNILINE $73.69 2 X310-91 DLP, SCSI, NEWDISK,180 BYTES /SECTOR $120.97 1 X310-91 DLP,SCSI, LAKDISK, 100 BYTES /SECTOR $685.00 1 X310-91 DLP,SCSI,PNC COMMUNICATION $61.24 2 89246-24 PRINTER, 2000 LPM $1332.22 1 BT3261 TAPE CONTROLLER, W / 1 DRIVE, 125 IPS $606.00 2 BT3266 TAPE DRIVE, SLAVE, 125 IPS $628.28 1 OSM-3000 SCSI DISK SUB SYS $326.41 Includes: 2 ea Cabinet, Dual P!S Includes: 14 ea 3.019 GB SCSI Disk Drives Includes: 20ea 100 MB SCSI, LAK Disk Drives 1 T27 TERMINAL, ODT INCL 2 HS4400-TD DAT TAPE DR, DIFFERENTIATED 99.25 TOTAL MONTHLY COST $6,364.63 25H-14 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 4, 2009 TITLE: CONSOLIDATED PLAN ANNUAL UPDATE CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 15f Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER 1. Approve the Consolidated Plan Annual Update and authorize its submittal to the U. S. Department of Housing and Urban Development (HUD) . 2. Authorize the City Manager to make any necessary modifications to the 2009-2010 action plan to reflect the actual grant amounts once released by HUD. COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION ACTION At its Regular Meeting of April 21, 2009, by a vote of 5:0, the Community Redevelopment and Housing Commission recommended that the City Council approve the Consolidated Plan Annual Update and authorize the submittal to the U. S. Department of Housing and Urban Development. DISCUSSION Each year the City of Santa Ana receives funding from various formula grant allocation programs administered by the U.S. Department of Housing and Urban Development (HUD). These funds provide for affordable and supportive housing, community development programs, public services and economic opportunities. The programs include the Community Development Block Grant (CDGB), the HOME Investment Partnership Grant (HOME), the Emergency Shelter Grant (ESG), and the Housing Opportunities for Persons with AIDS (HOPWA) Grant. Since Santa Ana is the most populous city in the County, Housing Opportunities for Persons With AIDS (HOPWA) funds are provided to the City for use throughout the County to address housing and supportive services for persons with HIV/AIDS. 29A-1 Consolidated Plan Annual Update May 4, 2009 Page 2 HUD has not yet notified the City of the actual funding amounts it will receive for the 2009-10 fiscal year, but the approximate amounts expected are as follows: Program Allocation Program Allocation CDBG $6,818,885 ESG $304,972 HOME $2,367,607 HOPWA $1,402,000 The draft Annual Update (Exhibit 1) relies on the City's actual 2008-09 allocations for planning purposes. Every five years the City must submit to HUD its Consolidated Plan. This is a five-year comprehensive planning document and application for all of these programs. It describes a strategy to meet the needs of the community and identifies resources and programs that can be used to address them. Each year the City is required to submit an Annual Update to the Consolidated Plan. This document establishes a one-year investment plan that outlines the intended use of resources in the forthcoming fiscal year. The proposed Annual Update covers the 2009-10 fiscal year. It reaffirms the established policy of allocating funding in neighborhoods where programs and resources would have the maximum impact. In addition, key programs will continue to be operated throughout the City in order to better serve the diverse needs in the community. HUD regulations require that the draft Annual Update be made available for a 30-day public review and comment period. On March 22, 2009, notification was published in the Orange County Register that the draft Plan was available for review beginning March 23, 2009, and that a public hearing would be held on April 21, 2009. It was also noticed in La Opinion and Nguoi Viet, as well as on the City's website. The 30-day public comment period concluded on April 21, 2009, at 12 noon. In accordance with Federal regulations, all neighboring jurisdictions were also informed of the draft's availability for review. All comments received, including all funding recommendations made by the City Council and final grant allocation once released from HUD, will be included in the final document, which is due to HUD no later than May 15, 2009. FISCAL IMPACT There is no fiscal impact associated with this action. 29A-2 Consolidated Plan Annual Update May 4, 2009 Page 3 r Cynt is J. Nel on Deputy City Manager for Development Services Community Development Agency CJN/SLB/TG/mlr 29A-3 29A-4 ~i DRAFT a July 1, 2009 -June 30, 2010 ~hNUQC U~7~Q~ Prepared by City of Santa Ana Community Development Agency EXHIBIT 1 29A-5 C/TY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN TABLE OF CONTENTS I. Executive Summary .............................................................................................................. 3 II. Standard Forms 424 .....................:.................................................................................... 13 III. Resources ..........................................................................................:............................... 17 IV. Activities to be Undertaken ..................................................: ~ :~:y~.................................... 20 V. Geographic Distribution ........................................ `' ....... ~'_ is . .......................... 21 ~~ ~ ° ~t~ VI. Homeless and Other Special Needs ................. .... .:~?............ '~ ~A ............................. : 22 ~; VII. Other Required Actions ...................................~..::-.................... ...:. .A..................... 25 VIII. Program Specific Requirements ................::.:.::.. '° .......... ~~ . .................... .................. 33 ;,,. IX. Monitoring ..................................................:s ... .. .................................................. .. 38 X. Certifications .................................................... •...: °~....................................................... 41 1 ~; ~-~ ; t r y ~y Maps ,~ _ l , Map No. 1: Low- and Moderate=Income Areas ...:...............:...................................................... : 50 . ~_ .~ ; ~~ ~ ~, ~~,; } Map No. 2: 2009-2010` Planned Activities ........:..................................:...................................... s 51 f, ~ - z ~,~~'~' Exhibits ~. , r 7,^ ~ f u.. a Exhibit,l: Proof of~~ublication &Summary of Public Comments .................................................. 52 ~. Attachrhents 'x Attachment,,-Summary~of 5-Year Accomplishments Attachment 2` P~ate~tial Resources for 2009-2010 v,~~Ly . } ~ wrb~> w Attachment 3 -Listing of Proposed Projects 2009-2010 2 9A '6 °r~F-r a,~s,o~ CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN INTENTI ,~~_~. :~ .~, ',~~ ,r-~: ~t DRAFT 4/15/09 2 9A-7 I. EXECUTIVE SUMMARY The 2009-2010 Action Plan provides specific information regarding the resources the City of Santa Ana will utilize and the activities the City will undertake to address priority needs and ,, -,. objectives during a 12-month period. The Action Plan will serve~.~s;tlie link between the ~~. objectives developed to address .priority housing and comm_un-fy needs identified in the ~E 4 t .. f,~ . City's 2005-2009 Consolidated Plan with certain federal resources allocated to the City by the U.S. Department of Housing and Urban Develop e'HUD). The specf%ctimeframe for r..:.k ~t*t :° the 2009-2010 Action Plan begins July 1, 2009, n' ends June.30, 2010. Thrs;<titneframe is ~~~ referred to as a Fiscal Year (FY) or Program Year (P~~; ~ ,, The 2009-2010 Action Plan consists ^ Standard Form 424 - grant funds for Resources - F~ rms fired co he City formal application to HUD for funds expected to be available to address priority needs and specrfi`bjectiv"~s'i`d'entified in the Consolidated Plan. This estimate ~..~. ~:.:::, includes` program income',for all federal grant funds. The Annual Plan also provides Finfor~iiation regardrrig leveraging of non-federal and private resources with federal grant E F- ~ ! funds, and how the rrjatching requirements of HUD programs will be met. ~T Description of Adivitres to be Undertaken -This information is provided in a format r ,~ ~, ~: prescribed by~H.UDt including a short description of the activity, the location of the ~:~~.. activity, and th~`target beneficiary population. Geographic Distribution - A description of the geographic distribution of federal grant funds, including information regarding the distribution of federally funded assistance in areas of racial/ethnic minority concentration. 2 9A-~8 0~~ 4,~S,o~ ^ Homeless and other Special Needs - An outline specifying the activities that will be undertaken during the PY to address the needs of the City's households at risk of homelessness, those that are situational homeless, chronic homeless, and persons that are not homeless, but have special needs. ^ Other Actions -HUD requires that the City evaluate how strategies outlined in the Consolidated Plan will be addressed during the PY including strategies to: ^ Address obstacles to meeting underserved needs fi'` -"~ ` ,~~,~.~ ,;, ^ Foster and maintain affordable housing ~•: ^ Remove barriers to affordable housing ` ~ ~ ~ , ~~~~ -,' ,~, ^ Evaluate and reduce lead-based paint hazards:' ~'~~;~. ^ Reduce the number of poverty level famrlres 6 ~ ~' ~: ~~~ ^ Develop institutional structure ~ '' -~ ''" ^ Enhance coordination between public/private housing and service agencies ~r=: , t:~ ^ Foster assisted housing improverients and:resident initiatives t ~~.'~~. f. .~ ~ Additionally, the City of Santa Ana will address the impediments to fair housing choice prevalent in the region and outline an action plan to overcome these impediments in partnership with the F.air,Housng Council at Orange County. ~. ^ Program Specific Requirements -There are certain program requirements that must be ,:~r ~ ~, included in the Actio`ri,Plan for-each federal grant program. ~. ~~, ^ Monitoring - A description of the standards and procedures that the City will use to _, ~'' monitor act vities ;carried out in furtherance of the plan and ensure proper use of federal funds.' ^ Certifications -HUD requires the City to submit various certifications related to the implementation of federal grant programs. These are standard certifications provided by HUD. o~,rra,~sio~ 29~-9 In recent years HUD has implemented several revisions to Consolidated Plan/Action Plan regulations. To comply with these requirements, the City has updated its inventory of homeless housing to identify the beds that are available for HUD-defined chronically homeless and victims of domestic violence. Additionally, the City's Community Development Agency, Housing Division and.the Planning and Building Agency, Community Preservation Division will maintain an inventory of abandoned and>v~~ant properties (the former for Neighborhood Stabilization Program purposes). ~Y HUD also requires that the City implement an outcomes measureme,-~t~t management system. The City of Santa Ana took extensive measures to incorporate sucha'system in its ~`~. 2005-2009 Consolidated Plan and to implementfi`e,~system d`iir., g the past four years. The City's outcome measurement system was devised i.-ror HUD's outcome measurement £. system as best as possible. The City has,,incorporated o came measurement requirements ;~ ~ s ~. with all subgrantees and grantee-fundecljactwrt ~~, anal. has util,[ed HUD's Consolidated Plan :~ Management Program (CPMP~,tool for prep~arat,o~ of th`E-2~"~T9-2010 Action Plan. } ~ ~'-' ~~_ An additional requirement is the` inclusion of an executive summary that not only '~ `' ~ ~~~ ,r~'`~ ~- ,,: summarizes how the City w~ll.utilizeaH.UD funds for 2009-2010, but also reviews prior year accomplishments: As part of the Consolidated Plan, HUD and the City have developed ,~ several tables that can be utilized to track and report accomplishments (see the table below and Attachment 1). At the completion of the 2008-2009 Program Year, these tables will be ~' > further i,pdated. Similarly, at the end of subsequent program years annual accomplishments,wrll.bendded. 2 9A-~10 °~~ 4'is'~ 2 a 0 u Q 2 2 Q H O O N O li N U N O~ U a-i W m H Z O H Z W H Z ~' ~~ , Q Y~ .~. Z Z u 00 N Q N W H W S Z O F Q Z F Z 0 V 00 .-~ a W fL o\° o o\° a o\° o\° o\°\° \ o\° O m .-i .--i o 0 ~ o Q Q v o 00 ~n o ~ ~ M M rn m M o m rn ao ~ o z z ,_i M o ~ v m ,o o M n ~-1 ci N '-'~ N N N ~--I .-i N N .-i ~--1 - J J J = J J = ~ ~ J = J S J J cn vt ~n p ~n N p ~n p N p vl vI ~ N n n l0 ~ N V V n n V N O p j ^ O ~ ~ .--1 O N M O V M ~ M M .--1 CO n o C aJ o C N o ° ° c n o o v o c a -o m o C_ v o o n ~ to 7 ~ V O N ~J V n . N = V j _7 O V OC _ N N = N N = '..j e-i . N C N C N ~ N C of V H ~"' N O 9 Y 00 Q U i a ~ ~ a a) a a) H V n1 V R '^ _ c 'c `^ ~ o ~ o o C a a f6 f6 > > V1 ~ O V' a/ Q ~ V_ ON > > 'u O , O'. N E ~ Q ~ N ~ N O O C ~ c ~J L a~ ~ O V c O ~ - ~ O L n E Q E _ j O w m °° ' 0 3 ~ ~ ~ N ~ ~ 0 0 c ~ ~ 3 3 . 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V) U x F- I- H U +a0 4. vi'. ,-w 'ti ri m v ui ~ 29A-14 ei LL CITY Of SANTA ANA 2009-2010 ANNUAL AcnoN PLAN Summary of 2009-2010 Action Plan The City of Santa Ana is a recipient of five significant HUD entitlement grants; these grants and the amount the City anticipates it will receive are listed below: ANTICIPATED HUD GRANTS FOR 2009-2010 ~ ~ ~ Community Development i Block Gra t (CDBG) {~ ;;?$6,800,000 n ~~,..~., HOME Investment Partnership Program (HOME) '~,~ ~ ;:, ,~ ~. ~-~~~: 67,607 ~=~~ American Dream Down a ment Initiative (ADDI) z ~~~' ~. $0 p y ~ ~ _ r _ Emergency Shelter Grant (ESG} ~ ~%, ~# ~ $304,972 ~";; Housing Opportunities for Persons With AIDS (HOPUV~) s ,~u ~ 'r' $1,402,000 Tai a~ $10,874,579 1. An additional $1,000,OOOinprioryearfu~dswill6ereprogran,nudto~~uQport09-lOCDBGactivities. 2. Based on preliminary FY 09-lOfunding reports tlii; program ~Nill nut b~~ f~inde~>. 3. An additional $115,060 in prior yearfundsili b rprop mmmeii to support (]~ 10 HOPWA activities. s~'= _ _ " ~~, ,.-;' ,. -~ gig=' _ r> -.. In addition to entitlement-funds, tf~ere may pe program income and prior year unexpended ~" funds that may be ,added to the amounts ~ISted above to carry out eligible activities. A summary of activltles planned fa timp,ltementatir~ii during the 2009-2010 Fiscal Year is found «~ ,, below. These activities include the follovving: ' ~iA(+WED USE OF 2009-ZO10 FEUD FUNDS;~* ~ • Public Faciiity Improvement ~ Neighborhood Sponsored • Projects - `_ .~ CDBG $50,000 Code Enforcement=.Enforcement of housing & municipal building codes CDBG $1,700,000 Public Services -Senior, youth, disabled & other related programs CDBG $1,000,000 CDBG Administration & Planning -Program oversight & fair housing counseling CDBG $737,200 Housing Rehabilitation -Single-& Multi-Family Housing Rehab CDBG $245,000 Neighborhood Park Improvements CDBG $150,000 DRAFT 4/15/09 2 9'1~-15 CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN • Neighborhood Street Improvemerits CDBG $2,917,800 Homelessness Prevention ESG $28,000 Homeless Essential Services ESG $90,000 Homeless Facilities Operations ESG $182,000 ESG Administration -Program oversight ESG $4 972 ~' - HOME Administration -Program oversight Hc~ME:<:~; ; ,, $236,760 ~- CHDO Multifamily Acquisition/Rehabilitation ~H~OME ~ , $355,142 ~~ k. Multifamily Acquisition/Rehabilitation _ ,._- ' ~ HOME ., ,y +$1,325,705 Single Family Rehabilitation ~~~~~" HONE ~45~000 t Down payment Assistance ' F ,t~, ~ nDDI $0 HOPWA Administration -Program oversgh~-1 HOPWA $42,060 Support Services-Supportive services&'hou~ing#or~=z~. ~ i >.'~ HflPWA $859 940 ~ "' - dually diagnosed persons with HIV/AIDS ~~"_ ,,. , Tenant Based Rental Assistance -Rental assi5t~'n~~ for,;~ ~ ~~' '' ~ persons with HIV/AIDS e : --. ~ , ~DPWA $500,000 * "Funding Amount" is based on'ant~ip3fed 09-10 grants,;=aloes riot include additional prior year/reprogrammed funds. ~, 1. Santa Ana receives and~ifminist~'r, HnPWrt funds on behal of the entire Orange County region. 2. Does not include $11 ,,Og4 m prior y +~ development' fu;~o be allocated during 09-10 for supportive services. ~.. i;'if Y ~' CDBG-funded activities wlll be'availa6le to inca`~ne-eligible households, i.e., households with _> an income. ec~iral to or less-.than 80% of the County median income or in areas of the City where~`HUD has determined°atleast 51% of residents meet the 80% median income 5 standa~d,(see Map No. 1):1 HOME-funded activities will also benefit homeowners at the 80% incorn,e~standard and enters with lower incomes. ESG will be limited to programs that prevent eminent, evlctlon/foreclosure or assist those individuals/families that are already ~. iY..,.~. _ homeless and need- appropriate housing and/or support services. As indicated above, HOPWA funds will be utilized to support programs that address the housing and service needs of Orange County residents living with HIV and/or AIDS. 1 The City is eligible to (and has chosen to) utilize the uncapped 80% income standard. Additional discussion regarding this income standard is found on page 18. 29A''16 D~,Fra,~s,o9 CITY OF SANTA ANA 2009-2010 ANNUAL ArnoN PLAN Pursuant to the Citizen Participation Plan and HUD requirements; the City made a draft of this report available fora 30=day public comment period. This comment period began March 23 and ended April 21, 2009. Additionally, a public hearing was held April 21, -2009 to receive additional public input on proposed 2009-2010 activities: A public notice regarding the 30-day comment period and public hearing was published on March 22, 2009 (see Exhibit 1). A summary of public comments received and staff's written response to ~_; comments is incorporated into this document (see Exhibit 1). .;.,;~;yx~~/ FF,ti~ _~~y41 ~~ a ~' s ~~3ti f .^p ~, ' v. Rl J` 8; 4~ s *r ~~ N~ ~~~~. ? - s '~ f ~.~ `~ ;` w-.:~~~7\ ~ Y tR~ ~,_ ~ J~^ tl~ EA. ~~ Sn~J~r ~ 1~~ +'Y v _ _ t1~r_~~~ } # ,'' ~ Irv d k ,''. 6'. ~'~ ~~i ' ~ `r A~ 4'~ 4 /.~a . ~~'.Il`l{~.iW . o~a~ a,~sio~ 2 9~~-17 II. Standard Farm 424 OMB Number: 4040-0004 Expiration Date: 01/31/2009 Application for Federal Assistance SF-424 Version 02 *1. Type of Submission: *2. Type of Application * If Revision, select appropriate letter(s) ^ Preapplication ®New ® Application ^ Continuation *Other (Specify) ^ Changed/Corrected Application ^ Revision 3. Date Received: 4. Applicant Identifier: 5a. Federal Entity Identifier: *5b. Federal Award Identifier: B-09-MC-06-0508 B-09-MC-06-0508 State Use Only: 6. Date Received by State: 7.. State Application Identifier: 8. APPLICANT INFORMATION: *a. Legal Name: City of Santa Ana *b. Employer/Taxpayer Identification Number (EIN/TIN): *c. Organizational DUNS: 95-6000785 083153247 *Street 1: 20 Civic C Street 2: *City: County: *State: CA Province:. *Country: *Zip /Postal Code e. Organizational Unit: Department Name: Community Development Agency f. Name and contact information of Prefix: Ms Middle Name: T *Last Name: Edwards Suffix: Division Name: Administration Division ~n to be contacted on matters involving this *First Name: Nancy I Title: Assistant Director, Community Development Agency I I Organizational Affiliation: *Telephone Number: 714-667-2244 Fax Number: 714-647-6713 I *Email: nedwards@santa-ana.org enter Plaza Santa Ana Orange 29'~-18 USA 92702 OMB Number: 4040-0004 Expiration Date: 01/31/2009 Application for Fedieral Assistance SF-424 Version 02 "9. Type of Applicant 1: Select Applicant Type: City or Township Government Type of Applicant 2: Select Applicant Type: Type of Applicant 3: Select Applicant Type: "Other (Specify) '10 Name of Federal Agency: Housing and Urban Development 11. Catalog of Federal Domestic Assistance Number: 14-218 CFDA Title: Community Development Block Grant '12 Funding Opportunity Number: NA *Title: NA 13. Competition Identification Number: NA Title: NA 14. Areas Affected by Project (Cities, Counties, States, etc.): City of Santa Ana, CA *15. Descriptive Title of Applicant's Project: Funds to be used to support improvement of public facilities in the City's Low/Mod areas, housing rehab and public services. Funds will also be used for program administration and fair housing services. 29'~-19 OMB Number: 4040-0004 Expiration Date: 01/31/2009 Application for Federal Assistance SF-424 Version 02 16. Congressional Districts Of: *a. Applicant: 46 & 47 *b. Program/Project: 46 & 47 17. Proposed Project: *a. Start Date: 07/01/2009 *b. End Date: 06/30/2010 18. Estimated Funding ($): *a. Federal 6;800;000 *b. Applicant *c: State *d. Local *e. Other *f. Program Income *g. TOTAL 6,800,000 *19. Is Application Subject to Review By State Under Executive Order 12372 Process? ^ a. This application was made available to the State under the Executive Order 12372 Process for review on ^ b. Program is subject to E.O. 12372 but has not been selected by the State for review. ® c. Program is not covered by E. O. 12372 *20. Is the Applicant Delinquent On Any Federal Debt? (If "Yes", provide explanation.) ^ Yes ® No 21. *By signing this application, I certify (1) to the statements contained in the list of certifications** and (2) that the statements herein are true, complete and accurate to the best of my knowledge. I also provide the required assurances** and agree to comply with any resulting terms if I accept an award. I am aware that any false, fictitious, or fraudulent statements or claims may subject me to criminal, civil, or administrative penalties. (U. S. Code, Title 218, Section 1001) ® ** I AGREE ** The list of certifications and assurances, or an Internet site where you may obtain this list, is contained in the announcement or agency specific instructions Authorized Representative: Prefix: Mr *First Name: David Middle Name: N. *Last Name: Ream Suffix: *Title: City Manager *Telephone Number: 714-647-5200 Fax Number: 714-647-6713 * Email: dream@santa-ana.org *Signature of Authorized Representative: *Date Signed: Authorized for Local Reproduction Standard Form 424 (Revised 10/2005) Prescribed by OMB Circular A-102 291-20 OMB Number: 4040-0004 ~.,..:~...:,... r~,:.... ni n • innnn Application for Federal Assistance SF-424 Version. 02 *1. Type of Submission: *2. Type of Application * If Revision, select appropriate letter(s) ^ Preapplication ®New ®A lication pp ^ Continuation *Other (Specify) ^ Changed/Corrected Application ^ Revision 3. Date Received: 4. Applicant Identifier: 5a. Federal Entity Identifier: *5b. Federal Award Identifier: M-09-MC-06-0508 M-09-MC-06-0508 State Use Only: 6. Date Received by State: 7. State Application Identifier: 8. APPLICANT INFORMATION: *a. Legal Name: -City of Santa Ana *b. EmployedTaxpayer Identification Number (EIN/TIN): *c. Organizational DUNS: 95-6000785 083153247 d. Address: *Street 1: 20 Civic Center Plaza Street 2: *City: Santa Ana County: Orange *State: CA Province: *Country: USA *Zip /Postal Code 92702 e. Organizational Unit: Department Name: Division Name: Community Development Agency Housing Division f. Name and contact information of person to be contacted on matters involving this application: Prefix: Ms *First Name: Shelly Middle Name: *Last Name: Landry-Gavle Suffix: Title: Housing Manager Organizational Affiliation: *Telephone Number: 714-667-2287 Fax Number: 714-647-2225 *Email: slandry-bayle@ Santa-ana.org 29'~-21 OMB Number: 4040-0004 F.xniration l~ate• Ol/31/2M9 ,Application for Federal Assistance SF-424 Version 02 *9. Type of Applicant 1: Select Applicant Type: City or Township Government Type of Applicant 2: Select Applicant Type: Type of Applicant 3: Select Applicant Type: *Other (Specify) *10 Name of Federal Agency: Housing and Urban Development 11. Catalog of Federal Domestic Assistance Number: 14-239 CFDA Title: Home Investment Partnerships Act *12 Funding Opportunity Number: NA *Title: NA 13. Competition Identification Number: NA Title: NA 14. Areas Affected by Project (Cities, Counties, States, etc.): City of Santa Ana, CA *15. Descriptive Title of Applicant's Project: Funds to be used to expand and preserve the City's supply of affordable housing and program administration. 29~-22 OMB Number: 4040-0004 Expiration Date: OI/31/2009 Application for Federal Assistance SF-424 Version 02 16. Congressional Districts Of: *a. Applicant: 46 & 47 *b. Program/Project: 46 & 47 17. Proposed Project: *a. Start Date: 07/01/2009 *b. End Date: 06/30/2010 ! 18. Estimated Funding ($): *a. Federal 2,367,607 *b. Applicant *c. State *d. Local *e. Other (ADDI) *f. Program Income *g. TOTAL 2,367,607 *19. Is Application Subject to Review By State Under Executive Order 12372 Process? ^ a. This application was made available to the State under the Executive Order 12372 Process for review on ^ b. Program is subject to E.O. 12372 but has not been selected by the State for review. ® c. Program is not covered by E. O. 12372 *20. Is the Applicant Delinquent On Any Federal Debt? (If "Yes", provide explanation.) ^ Yes ®No 21. *By signing this application, I certify (1) to the statements contained in the list of certifications** and (2) that the statements herein are true, complete and accurate to the best of my knowledge. I also provide the required assurances** and agree to comply with any resulting terms if I accept an award. 1 am aware that any false, fictitious, or fraudulent statements or claims may subject me to criminal, civil, or administrative penalties. (U: S. Code, Title 218, Section 1001) ® ** 1 AGREE *'` The list of certifications and assurances, or an Internet site where you may obtain this list, is contained in the announcement or agency specific instructions Authorized Representative: Prefix: Mr *First Name: David Middle Name: N. *Last Name: Ream Suffix: *Title: City Manager *Telephone Number: 714-647-5200 Fax Number: 714-647-6713 * Email: dream craanta-ana.org *Signature of Authorized Representative: *Date Signed: Authorized for Local Reproduction Standard Form 424 (Revised 10/2005) Prescribed by OMB Circular A-102 29i~-23 OMB Number: 4040-0004 Expiration Date: 01/31/2009 Application for Federal Assistance SF-424 Version 02 *1. Type of Submission: *2. Type of Application * If.Revision, select appropriate letter(s) ^ Preapplication ®New ® Application ^ Continuation *Other (Specify) ^ Changed/Corrected Application ^ Revision 3. Date Received: 4. Applicant Identifier: 5a. Federal Entity Identifier: *5b. Federal Award Identifier: S-09-MC-06-0508 S-09-MC-06-0508 State Use Only: 6. Date Received by State: 7. State Application Identifier: 8. APPLICANT INFORMATION: *a. Legal Name: City of Santa Ana *b. Employer/Taxpayer Identification Number (EIN/TIN): *c. Organizational DUNS: 95-6000785 083153247 d. Address: *Street 1: 20 Civic Center. Plaza Street 2: *City: Santa Ana County: Orange *State: CA Province: *Country: USA *Zip /Postal Code 92702 e. Organizational Unit: Department Name: Division Name: Community Development Agency Administration Division f. Name and contact information of person to be contacted on matters involving this application: Prefix: Ms *First Name: Nancy Middle Name: T *Last Name: Edwards Suffix: Title: Assistant Director, Community Development Agency Organizational Affiliation: *Telephone Number: 714-667-2244 Fax Number: 714-647-6713 *Email: nedwards@ santa-ana.org 291-24 OMB Number: 4040-0004 Expiration Date: 01/31/2009 Application for Federal Assistance SF-424 Version 02 °`9. Type of Applicant 1: Select Applicant Type: , City or Township Government Type of Applicant 2: Select Applicant Type: Type of Applicant 3: Select Applicant Type: *Other (Specify) *10 Name of Federal Agency: Housing and Urban Development 11. Catalog of Federal Domestic Assistance Number: 14-231 CFDA Title: Emergency Shelter Grant *12 Funding Opportunity Number: NA *Title: NA 13. Competition Identification Number: NA Title: NA 14. Areas Affected by Project (Cities, Counties, States, etc.): City of Santa Ana, CA *15. Descriptive Title of Applicant's Project: Funds to be used to support homeless shelter operations and the provision of essential services. Funds will also be used to prevent homelessness and program admin. 15b 29A-25 OMB Number: 4040-0004 Expiration Date: 01/31/2009 Application for Federal Assistance SF-424 Version 02 16. Congressional Districts Of: *a. Applicant: 46 & 47 *b. Program/Project: 46 & 47 17. Proposed Project: *a. Start Date: 07/01/2009 *b: End Dater 06/30/2010 18. Estimated Funding ($): *a. Federal 304;972 *b. Applicant *c. State *d. Local *e. Other *f. Program Income *g. TOTAL 304,972 *19. Is Application Subject to Review By State Under Executive Order 12372 Process? ^ a. This application was made available to the State under the Executive Order 12372 Process for review on ^ b. Program is subject to E.O. 12372 but has not been selected by the State for review. ~ c. Program is not covered by E. O. 12372 *20. Is the Applicant Delinquent On Any Federal Debt? (If "Yes", provide explanation.) ^ Yes ®No 21. *By signing this application, I certify (1) to the statements contained in the list of certifications** and (2) that the statements herein are true, complete and accurate to the best of my knowledge. I also provide the required assurances** and agree to comply with any resulting terms if I accept an award. I am aware that any false, fictitious, or fraudulent statements or claims may subject me to criminal, civil, or administrative penalties. (U. S. Code, Title 218, Section 1001) ® ** I AGREE ** The list of certifications and assurances, or an Internet site where you may obtain this list, is contained in the announcement or agency specific instructions Authorized Representative: Prefix: Mr *First Name: David Middle Name: N. *Last Name: Ream Suffix: *Title: City Manager *Telephone Number: 714-647-5200 Fax Number: 714-647-6713 * Email: dream@santa-ana.org *Signature of Authorized Representative: *Date Signed: Authorized for Local Reproduction Standard Form 424 (Revised 10/2005) Prescribed by OMB Circular A-102 Z~1~X-is OIvfB Number: 4040-8004 Fv,,;rar;,.., n~,a- ni ni nnno Application for Federal Assistance SF-424 Version o2 *1. Type of Submission: *2. Type of Application * If Revision, select appropriate letter(s) ^ Preapplication ®New ® Application ^ Continuation *Other (Specify). ^ Changed/Corrected Application ^ Revision 3. Date Received: 4. Applicant Identifier: 5a. Federal Entity Identifier: *5b. Federal Award Identifier: CA 16 H09-F075 CA 16 H09-F075 State Use Only: 6. Date Received by State: 7. State Application Identifier: 8. APPLICANT INFORMATION: *a. Legal Name: City of Santa Ana *b. Employer/Taxpayer Identification Number (EINlTIN}: *c. Organizational DUNS: 95-6000785 083153247 d. Address: *Street 1: 20-Civic Center Plaza Street 2: *City: Santa Ana County: Orange *State: CA Province: *Country: USA *Zip /Postal Code 92702 e. Organizational Unit: Department Name: Division Name: Community Development Agency Housing Division f. Name and contact information of person to be contacted on matters involving this application: Prefix: Ms *First Name: Shelly Middle Name: - *Last Name: Landry-Gayle Suffix: Title: Housing Manager Organizational Affiliation: *Telephone Number: 714-667-2287 Fax Number: 714-647-2225 *Email: slandry-bayle@santa-ana.org 291-27 OMB Number: 4040-0004 Fmiratinn Tlate• (11 /~ 1 /~MQ Application for Federal Assistance SF-424 Version 02 *9. Type of Applicant 1: Select Applicant Type: City or Township Government Type of Applicant 2: Select Applicant Type: Type of Applicant 3: Select Applicant Type: 'Other (Specify) *10 Name of Federal Agency: Housing and Urban Development 11. Catalog of Federal Domestic Assistance Number: 14-241 CFDA Title: Housing Opportunities for Persons with AIDS *12 Funding Opportunity Number: NA *Title: NA 13. Competition Identification Number: NA Title: NA 14. Areas Affected by Project (Cities, Counties, States, etc.): Orange County, CA *15. Descriptive Title of Applicant's Project: Funds to be used to provide housing and supportive services for individuals with HIV and AIDS. Funds will also be used for program admin. Funds will be used throughout Orange County CA. - 291-28 OMB Number: 4040-0004 ~..,, .yr;,,,. n~ro• ni n i nnno Application for Federal Assistance SF=4~4 - Version 02 16. Congressional Districts Of: _ *a. Applicant: 39, 41, 45, 46, 47 & 48 *b. ProgramlProject: 39, 41, 45, 46, 47 & 48 17. Proposed Project: *a. Start Date: 07/01/2009 *b. End Date: 06/30/2010 18. Estimated Funding ($): *a. Federal ';41?2,000 *b. Applicant *c. State *d. Local *e. Other *f. Program Income *g. TOTAL 1,402,000 *19. Is Application Subject to Review By State Under Executive Order 12372 Process? ^ a. This application was made available to the State under the Executive Order 12372 Process for review on ^ b. Program is subject to E.O. 12372 but has not been selected by the State for review. ® c. Program is not covered by E. O. 12372 *20. Is the Applicant Delinquent On Any Federal Debt? (If "Yes", provide explanation.) ^ Yes ® No 21. *By signing this application, I certify (1) to the statements contained in the list of certifications**snd (2) that the statements herein are true, complete and accurate to the best of my knowledge. I also provide the required assurances** and agree to comply with any resulting terms if I accept an award. I am aware that any false, fictitious, or fraudulent statements or claims may subject me to criminal, civil, or administrative penalties. (U. S. Code, Title 218, Section 1001) ® ** I AGREE ** The list of certifications and assurances, or an Internet site where you may obtain this list, is contained in the announcement or agency specific instructions Authorized Representative: Prefix: Mr *First Name: David Middle Name: N. *Last Name: Ream Suffix: *Title: City Manager . *Telephone Number: 714-647-5200 Fax Number: 714-647-6713 * Email: dream@santa-ana.org *Signature of Authorized Representative: *Date Signed: r~uuiurucu rar i,acai xeproaucnon Standard Form 424 (Revised 10/2005) Prescribed by OMB Circulaz A-102 29'~-29 CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN III. Resources FEDERAL RESOURCES As part of the Action Plan, federal regulations require the City of Santa Ana to delineate federal and non-federal resources expected to be available to address the priority needs and specific objectives identified in the Consolidated Plan. The tat~le below provides a summary of HUD grants and program income that will be prog~.ar'~imed during FY 2009- 2010. .:~-~ ~~~'~ ~_;-- ~~~~ ANTICIPATED FEDERAL GRANT RESOURCES FOR FY 2009-2Q`1~. '',~, ~~ :1 • ~ ~ • Community Development '~` `~ $6,800,000 Block Grant (CDBG) CDBG Program Income ~" .~ w~ ~.,~ ~~,, r $0 w ~?z r' ,r CDBG Prior Year Program Income ,~~; ~ ,,~ ~ $0 ,~. ,,, - ~~,, CDBG Reprogrammed Funds.. •> ~~ ~ s $1,000,000 ~ ~ _ ~ :T ,. . American Recovery;a~i Reinvestment Act (ARRA) CDBG Funding.{,~BG-R") * . ,;~.: $1,852,245 k-~. i hb l hoo o ` Ne g or ization Pr gram {N5P) Funds: ~ $5,795,151 HOME Investmonrtnership Program (HOME) °,> $2,367,607 '; ~ .;• lmerican Diearrr}Downhayment Initiative $0 -, .~: _. _ ~_^. -~ HOME Program Income - $p ~Eniergency Shelter Grant (ESG) ,~ $304,972 ESG Reprogram rn~Funds (from prior years) $0 . ~ ~,~ Homelessness Prevention Fund * $2,831,989 Housing Opportunities for Persons With AIDS (HOPWA) $1,402,000 Housing Opportunities for Persons With AIDS (from prior years) $115,060 TOTAL $22,469,024 source: u.~. uepartment of rlousmg and Urban Development and City of Santa Ana CDA ' Funds received during FY OS-09; however, program implementation will not begin until FY 09-10. 2 9A' ~ 0 DRAFT 4/15/09 CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN Attachment 2 provides a more comprehensive listing of potential federal, state and local private resources that are or may be available to the City to undertake activities to meet housing and community needs. OTHER NON-FEDERAL PUBLlCAND PRIVATE RESOURCES .. As part of the Action Plan, federal regulations require the City~,ofSanta Ana to delineate r; ~', non-federal and private resources expected to be available fo a'ddr ss the priority needs ~`,~ ~ -,, and specific objectives identified in the Consolidated .Plan. The table tbelow provides ~~--~T ~> 1~'?i information regarding non-federal and private resolTMrc'es expected to be available during ~'~~ ~.~~ the 2009-2010 Program Year. ~. Y _'`~ FY 2009-2010 NoN-FEDERAL Pusuc Santa Ana Redevelopment Agency Low I Set-Aside Fund TE RESOURCES e Hou~ih ~;, $14,000,000 ,.:~ r° , CalHome _ ~ ~{ $900,000 ~. ,~ ._ ~, '~'~. TOTAL $14,900,000 4: ~~;... Source: City of Santa Ana CommunityDevelo~nentAg~n~y ?~=~3 * Ryan White Part A (ti5,OZ5;701) fynd wii4`ao be watlabt~ to support countywide HIV/AIDS programming _ r,~ , LEVERAGING OF RESOURCES HUD; reciuires the City to; discuss how federal resources to be made available during the 2009-201i? Program Year vvili leverage other non-federal public and private resources. The City of Santa Ana will continue its strategy of linking non-federal resources for housing and community deve~opmer;it needs with federal grant funds. This strategy involves identifying federal resources that may be available to undertake a project. If grant funds -are insufficient other non-federal resources will be utilized to meet project finance gaps. Additionally, the City will continue to commit non=federal resources to undertake activities that are not federally funded, but address the priority needs of the community. HUD's IDIS system will help facilitate more accurate reporting of leveraging resources. oRA~4/15/0~ 2~i4-31 CITY OFSANTA ANA 2009-2010 ANNUAL ACTION PLAN FEDERAL MATCN REQUIREMENTS There is no federal requirement for the City to match CDBG funds with other non-federal program resources. The HOME program does require that for every HOME dollar spent, the City must provide a 25% match with non-federal dollars. Under certain circumstances, HUD will waive or reduce the match requirement. In July 2007, the City was notified by HUD that for the 2009-2010 Program Year, the City's HOME match requirement has been reduced to r '~„R,Y 0% because the City's "family poverty rate" is 125% or more of the av~cage national poverty "~. ~ rate, the jurisdiction qualifies as distressed based on tli~'e~';family poverty rate criterion, and the City s per capita iricome is less than 75/0 of the~national average. ~;~~. ,,, }. j'~ >',~ S Even though Santa Ana is not required to provide~HOME matching funds, the City will ~. =.~s, continue to implement its current stt`afegyr to match HOME; funds by undertaking projects ~ ~~~. ~:= that blend local and private resources with HOME funds. HUD `allows the City to use various ~~~-~ •~, resources to meet this match requirement includrng ~ ``' „~ ,~ ^ Cash f ~ Value of waived taxes, fees or charges `~ f r~<;; ^ Value of donated land , _ ` Value'c~f donated materials and/or labor `' ~: i ;~- Based on past actions, HOME match resources will include the value of donated land and -: a. ~.- value ofi~donated; I~bor- and materials, and/or direct subsidies with non-federal funds. As required, the City currently rl~aintajns a log of current match sources including a balance of y ; 4,.a. - excess`match. F: The Emergency Shelter Grant (ESG) program also has a match requirement. The City must match ESG expenditures dollar for dollar. The City of Santa Ana requires that subrecipients of ESG funds. provide documentation of matching resources. An annual report of matching funds is provided to HUD as part of the Consolidated Annual Performance and Evaluation Report. 2 9A ~ ~ /~ DRAFT 4/15/09 CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN IV. ACTIVITIES TO BE UNDERTAKEN An outline of activities the City of Santa Ana will undertake during the 2009-2010 Program Year is provided as in the table below. Activities were selected for implementation in order to address HIGH priority needs identified in the City's Consolidated Pla °":,,, :- _;~- SUMMARY OFPLANNED ACTIVITIES TO BE UNDERTAKEN 2009-201 0 ~.' ~;.'_~,; ~~ ~ ~ .. .. ~ ~ Public Facility Improvement-Neighborhood public ~'`~ ~p 1 im rovements p CDCs,G ~ $50,000 ~ ~ ' ,Public Facility Code Enforcement-Enforce local housing & building CDBG SI>700 000 .~, 4,500 codes compliance , F;, ,;;;~ 1 H using Units. Public Services -Seni th & L /M d ic DBE 000 5,157 or, you ow o serv es ~ 000 = ' 2 ;?a ay ~° Individuals CDBG Administration & Planning- Program oversight & ~ ~,. 1 ~,~. fair housing counseling ~~f; .. CDBG ' $737,200 Year Housing Rehabilitation -Single- &Multi-Family hou m~~:} r aR 45 rehab CDBG ,$245,000 Housing Units s Neighborhood Parks Improvements. ~ ~ SCDBG ~ '~ ~~~ $150,000 1 public Facility Neighborhood Street Improvements `'1,; CDBG $2 917 800 16,819 .~~~' ~--: , Individuals `~ 44~~~.. ~ Homelessness Preventlon>~ -1 ESG $28,000 532 ' i Individuals r~ ~ Homeless Essential Services ESG $90,000 1,455 a Individuals . ` ~ Homeless Faci{~ties Operations ESG $182 000 1,184 ' Individuals s ESG Aclm~i~nistration - Program oversight ESG $4 972 ' 1 Year HOMEAdmi~nistration-Program'oversight `~ ' HOME $236,760 1 Year Multifamil Ac u~is"`~on or Rehabilitation Y q ~ " ° HOME $1325 ,705 10 ~' -~ ~"°<> Housing Units CHDO Acquisition or Rehabilitation HOME $355,142 5 s Single-Family Rehabilitation HOME $450,000 20 Housing Units HOPWA Administration -Program oversight HOPWA $42,060 1 Year Support Services -Supportive services & housing for 900 individuals with HIV/AIDS HOPWA $859,940 Individuals DRAFT 4/15/09 2 ~~-3 3 CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN Tenant Based Rental Assistance -Rental assistarice for inrlivirin~lc with 1-IIV/AIrIC Detailed descriptions of activities to be undertaken are provided,:ir1 Attachment 3 -Listing .~: of Proposed Projects. Activity descriptions include: `' ~, _ -;~ ^ Number and type of accomplishment the proposed activity will address,:, yr, ,_t. ^ Location of activity '` ,~" ,.. , ~: ^ Proposed end date ~ ~~~.~ ~,, ^ Amount/source of HUD entitlement funds '`~ ,-<" ,''~~ ^ Priority need and proposed outcome/pe'rformance measure ~ -- ~ £f ~' •( To facilitate the evaluation flSanta Ana's; progress toward meeting five-year objectives, Attachment 2 - Su in r o Five-Year n'~.,., ~ Y f z 2005-2009 is included as a component of the; Co~n~solldated~Plan. This Crty-,developed table has been supplemented :~~:~~. with HUD tables. These: tables' list specific objective goals, a performance measurement, ;~~.'F ~,~, and the number of, these 'units" that are expected to be completed over afive-year period. 't~~f, ., HUD tables are incorporated irito.tlts document as part ofAttachmentl. ,, ~' . V. GEOGRAPHIC DISTRIBUTION .. ~ ~, . The geographic distribution of federal grant funds is depicted in Map No. 2. This map provides a view of the Cites target Low- and Moderate-income area where CDBG resources will be focused and plots where proposed activities will be located. As evident by Map No. 2, HUD-funded activities are limited to the City's Low-and Moderate-Income area, which encompasses the majority of the City's residential areas. Areas of the City outside of the 2 9A?~ 4 DRAFT 4,15,09 1. Total is the sum of 2,000 mufti-family housing units plus 2,500 single-family housing units. 2. Total does not include accomplishment goal for SAPD helicopter program -benefits all persons in the Citys Low/Mod Area (estimated at 275,476 individuals). 3. Total is the sum of 20multi-family housing units plus 25 single-family housing units. 4. Individuals assisted with ESG-funded "Essential Services" only. 5. Individuals assisted with ESG-funded "Facility Operations" activities may also receive ESG-funded essential services. 6. CHDO resources maybe leveraged with HOME Multi-family acquisition/rehab activities. CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN Low- and Moderate-Income target areas will benefit from activities that are limited- clientele in nature, i.e., a person/household can benefit from a federally assisted program provided they meet the program's eligibility-feria. Eligibility is typically established by household income and household size. HOPWA-funded activities will be available on a countywide basis. :: In July 2003, HUD notified the City of Santa Ana that it is exempt from the cap on Low- and ~, Moderate-Income levels currently applied to the CDBG and„HOME programs. Traditionally, .. `~- HUD has capped the. 80% income level to an amount_Iower than th~~_'`act.ual 80% of the area's median income. Utilization of the uncapped=,80% income level theoretically allows more households to qualify for CDBG and HOI~E~funded actwities. The CityhoSanta Ana _ . ,.. ~~, s has chosen to utilize the uncapped 80% income sta+ciar`d'fo-hoth its limited clientele and ~~,:,., area-wide activities. The table below provides a listing ofHUD's "Uncapped" 2008 income ~,? , ~ ~ r ~,~ .~~,, standard for Orange County, which wilt be effective~-.~pril 27, 2009 -HUD revises these limits 4T y '~ L.~ x[~~ -;~ annually. ~ ~~ - ~. ~~~ ~ PE-rsons f.~ -.1r''_ _ _~;- VI. Ho ETHER SPECIAL NEEDS The Action Plan- delineates the specific activities that the City will undertake during the 2009-2010 Program Year that address objectives and goals identified in the Consolidated Plan to address the needs of Santa Ana's homeless and special need populations. ORAFr 4/15/09 2 ~~-3 5 CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN As reported in the City's Consolidated Plan, there are an estimated 1,804 homeless individuals in Santa Ana. To address the needs of these individuals, the City will continue its efforts to identify efficient and effective means to distribute limited resources for homeless needs. The City has designated emergency and transitional housing as high priorities for addressing homelessness. There are 17 emergency and transitional shelters in the City, providing 248 emergency and 299 transitional housing beds - more'than any other city in the County.Z The City is presently undertaking a survey to determine how many of these. j shelter beds are reserved for the chronically homeless. Du ing;the`2009-2010 Program Year the City will also incorporate into its agreements a prpvisron that each ESG-funded agency prepare and implement a policy that will help ensure persons discharged fr'om'fiocal publicly :~ ,.., funded institution have access to housingjse ; .ices thus. f preventing the~r~ immediate homelessness upon discharge. More specifically, during the 2009-2010 Program,Year, the City%will undertake the following ti~ r r homeless housing/service activities: ~ °"~ ~ ` ~.. ~~ ,~''~ ~' Homelessness Prevention ~ ` ,.: ,~ A key component of Santa Ana's Continuum of`.Care strategy is to prevent individuals and ~~;~ families from falling mho homelessness ~ This is accomplished by providing monetary ` T :~. assistance:~and counseling/support services to households at risk of becoming homeless. r ~, ~~ The City's continuum of -care for the homeless strategy calls for providing ESG resources to agencies that provide this ype of assistance. An estimated 532 individuals will be assisted n~s~ ~., -~, } with homelessness prevention services during FY 2009-2010. Specific activities to be •` t undertaken during the`z009-2010 Program Year are outlined in the Listing of Proposed ~~_ Projects -Attachment 3. Additionally, on a countywide basis, HOPWA will be used to provide homelessness prevention assistance to an estimated 109 households z Total emergency shelter beds do not include 250 seasonal beds that are opened during winter months offered at the National Guard Armory located in Santa Ana. 2 9A?~ 6 DRAFT 4/15/09 CITY OF SANTA ANA 2009-2010 ANNUAL AcnoN P[AN EMERGENCY SHELTERS The City will provide funds to shelter providers via the ESG and HOPWA programs. These funds will help offset the costs of providing emergency shelter and essential support services for Santa Ana's homeless (and the region's homeless with HIV/AIDS with HOPWA funding). An estimated 1,093 individuals will be assisted with emergency shelter services during FY 2009-2010. Additionally, 71 County residents will be ass~sted with emergency ,~~~: shelter services with HOPWA funds.3 Specific activities to be ca~;ned-out during the 2009- ~~ ~~- 2010 Program Year are delineated in the Listing of Proposed. Project Attachment 3. ~, . TRANSITIONAL HOUSING The critical link between homelessness and sel ~ iciency i ~ °,ften provided by transitional housing programs. In this setting, homeless individ* als a"nd families are provided free or ~; .. ;.. very low cost housing, enriched wit ~ u _,port_services~armed,at building self-reliance skills. "' ~~ ~ ~ "' Quite often transitional housing progra~nrs~,wrli~req~~articrpan~s to save a portion oftheir income earned while participating in the~~rogra'_ so ty~~y~ifil have resources to move into TRANSITION TO PERMANENT HOUSING permanent housing upon tf~err graduation c-m the transitional program. Santa Ana will continue to support the transrtrona~ housmg/~su'pport service programs of the community's' nonprofits with ESG funds durrrig°the~2009 X810 Program Year, serving an estimated 91 .~ .;~s individuals. Additionally, a portion of HOPWA funds allocated for supportive services will be used to provide transitional housing for persons with HIV and/or AIDS on a countywide r ` ~-`~ ~ ;~ basis. An estimated 160 individuals will be assisted with transitional housing services during FY 2009-?_010.4 Specific activities to be carried out are delineated in the Listing of Proposed .k ,j~~ ~: f Projects -Attachment ~3. ~' ,. ; Access to decent, affordable permanent housing is the ultimate goal of the City's Continuum of Care system. In the past, the City has provided HOME, CDBG and s Housing services funded with HOPWA will be available on a countywide basis. ° Housing services funded with HOPWA will be available on a countywide basis. DRAFT 4/15/09 ~ ~~_~ CITY OFSANTAANA 2009-2010 ANNUAL ACTION PLAN Redevelopment resources to nonprofit service providers in order to acquire and rehabilitate housing units for persons leaving homeless programs. Some of these units have. been targeted for special need populations such as the disabled, youth, and individuals living with HIV/AIDS. During the 2009-2010 Program Year, HOPWA funding will be utilized to provide rental assistance to 50 individuals living with HIV/ADS on a countywide basis. s SPECIAL NEEDS OF PERSONS NOT HOMELESS BUT IN NEED OFSUPPORTIVE Hf7US1I11G ,. ,x~',~ Santa Ana will continue to provide federal and non-federal resources to meet the needs of `y persons with special needs (e.g., frail elderly, victimsof'~domestic violence, persons with ,, _~~..~ disabilities, persons living with HIV/AIDS). Various= programs will be undertake'°-a during the .t; . . 2009-2010 Program Year including housing rehabilitation (whic~may include installation of items such as ramps, grab bars, wider doors, etc.; 'to<jnp'rove mobility for persons with <~~ disabilities, and public services. Specific activities to be carried out are delineated in the Listing of Proposed Projects -Attachment 3. > ~s~ .~, _ ~.~ ~,, T ~~_:~; VII. OTHER ACTIONS ~ ~ = ` w, ~, `- IDENT/FlCATIDN OF 1MPfD1MENTS ~piFA1R HOUSING_CHOICE As a recipient of federal gr antVfunds, the City of Santa Ana is required to prepare an analysis of impediments to fair housing choice (AI). In addition to identifying impediments, a <~ , , strategy_to overcome these barriers must be implemented. The AI must be prepared to complement~ahe Consolidated Plan. The City was a participant in the development of a regional AI, prtepared 6y the Fair Housing Council of Orange County (FHCOC) on behalf of 13 municipal jurisdictions and the County of Orange. This document covers a full array of public and private policies, practices and procedures affecting housing choice locally and in the Orange County region. This document has served as the substantive basis for Fair Housing planning. The AI covers the 2006-2010 timeframe. 2 9A?~ 8 DRAFT 4/15/09 CITY OF SANTA ANA 2009-2010 ANNUAL AcnoN PLAN SUMMARY OF IMPEDIMENTS IDENTIFIED 1N THE ANALYSIS The following is a summary of impediments identified in the AI. It is important to note that. not all of the impediments identified in the analysis are present in Santa Ana.. This summary is based on a regional evaluation: ^ A need exists for cost sensitive and effective fair housing counseling that provides comprehensive educational services and fair housing enforceme , ~,~~ ^ There is a need for apro-active evaluation of fair lendrn~pactices in the region to {`~.: -~: evaluate, explain and eliminate disparity in lending pra ces' by race and national origin. t, ^ Local jurisdictions do not have a formal fair hou g education ~ stem in place for employees who impact fair housin issues a `_aannin zonin and code'~nforcement g ~ g l? g/ g staff). ,, t;"~a' ~ ^ ~:,,,~ =ass -~ Residents do not have adequate information regai~din; basic housing rights, which may :. lead to an increase in undetected discrimination. ~~ ~=' ., ._ . . ^ Insurance companies may be targeting; certarn~zip codes, for higher denial rates or different terms and conditions. ' ~ ~` ~ ' 4r ~` "` ~ ` .~5- ^ r- ~ t~... ,. Local entitlement communiti.es~ may have policies and programs that affect housing development, which may indirectly act as an impediment to fair housing choices. c e' 7-~' Actions to Address Identified Impediments The following actions have been identified in the regional AI and the City of Santa Ana as actions o be taken to address identified impediments to fair housing: ~; ^ Fair Housing services.;vvill be provided at an effective and responsive level. The Fair i Fem.!, Housing Council of Qrange County submitted a proposal to the City to provide fair ;. ,~ ~` housing services for 850 Santa Ana resident households. ^ The City will utilize existing referral and advocacy resources such as the FHCOC, Orange County Human Relations Commission, and the Legal Aid Society of Orange County, to investigate, address, and refer complaints of unfair or predatory lending practices. ^ Appropriate City personnel will be enrolled in applicable educational courses to ensure the most comprehensive fair housing service possible. Housing Authority, code o~~ ai~sio~ 2 ~~-3 9 - CITY OF SANTA ANA 2009-2010 ANNUAL ArnoN PLAN enforcement and other "housing" related staff will be the primary recipients of this training. ^ A similar course of action will be taken by the City to address complaints of insurance redlining, i.e:, the City will utilize existing referral and advocacy resources such as the FHCOC, Orange County Human Relations Commission, and the County District Attorney to investigate and address complaints. ^ As a partner in the preparation of the regional AI, the City;^provided the Fair Housing ` ~~.; Council of Orange County with information regarding cu`rre~nt policies that may have an impact on housing development. The City will continue to review the recommendations ,,~.t; of the regional AI and consider modifications t resent policies that mad have a nexus ~,%~~: limiting fair housing choice. ~~~,,~ STRATEGY IMPLEMENTATION ~~.<~., R '~`V. HUD requires that the City reevaluate how the4 additional, strategies outlined in the ~t ~ ~ ~z e t r; Consolidated Plan will be addressed dunng;the Program Yeas:` OBSTACLES TO MEETI ~ (.INDERSERVED NEEDS ~ ',: The City of Santa An wi11 undertake many: a~ ~tivities aimed at addressing the needs of the ~?~ ~;.~` community's: underserved •,~The underserved include the elderly, frail elderly, disabled, youth'~homeless, ~arid very low income households. In order to overcome the barriers ~~. ~: identified in the Consolidated Plan, the City will focus limited resources toward providing 3~ ." :~: new opportunities to ~~rade existing housing units and to expand the number of affordable hoi7s ; g u it~s'~for both owners and renters. Housing rehabilitation, first time homebuyer assis ~ - ce, and acquisition/development of new rental housing units are examples of activities slated for implementation during the 2009-2010 Program Year. Additionally, the City and local nonprofits will continue to provide services for underserved City residents. Public services to be funded during the 2009-2010 Program Year wild include home meal delivery, homelessness housing/support services, and youth after-school programs,. By focusing resources on the housing and community needs identified as HIGH 29AZ740 °RAF-ra,~s,o9 CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN priority the City will be able to utilize limited resources more efficiently. When available, Santa Ana will seek out additional resources beyond federal and local funds to address barriers. FOSTERING AND MAINTAINING AFFORDABLE HOUSING Many of the barriers to maintaining and expanding affordable housirroppoi-tunities for all ~;`,' residents of Santa Ana are attributable to market constraints=~~'~ Many of these market .~ '= constraints are beyond the control of the City, nonethele,~s the `Crty~ will utilize its limited resources to foster and maintain affordable housing. B~ leveraging fede~l ,funds with local ., redevelopment funds and resources available to nohprofit housing developers; the City may _,, ,,:, be able to increase its supply of long term affordable hous'rt The City's owner occupied ,i housing stock will be preserved with rehabilitation fif~dsfor homeowners and enforcement of local housing/building codes. While challenging, assisting first time homebuyers with mortgage subsidies will reinforce neighborhood pride.., ADDI funded second mortgages and sx other forms of subsidies maybe provided""$ ;:b ~3X 4F `y~ < -~r-~. , ,~ - - ~~~ ~' In July 2008, the Housing and Economic Recovery Act of 2008 was signed into law. This law .,~t_ t•~ , ~, .- authorized the creation of the Nerghborhood•Stabilization Program ($5,795,151), which aimed to s#em`a_the negative impact of foreclosed homes on residential neighborhoods. Based on HUD's dist%bution formula, the City of Santa Ana qualified as a direct HUD-NSP reci'pi~nt; therefore in December 2008, the City amended its 2008-2009 Annual Action Plan in order tq receive NSP fund. Since this time, the City has taken initial steps to implement its NSP progr-arn . wfi,icf~° includes using funding to acquire and rehabilitate foreclosed residential properties. These units will be rehabilitated and marketed for sale to qualified homebuyers. Additionally, the City will meet the NSP 25% fund allocation for Very Low- Income persons by working in partnership with a nonprofit housing developer. The ultimate goal of the program is to utilize limited NSP funds to make a significant impact in neighborhoods that have been hard hit by the slump in the housing market and sub-prime market collapse. o~~ 4,~5,~ 2 9i~-41 CITY OF SANTA ANA 2009-2010ANNUAL ACTION PLAN BARRIERS TO AFFORDABLE HOUSING The City will implement an array of housing programs in order to enhance and expand the supply of affordable housing in Santa Ana. As outlined above, the City will provide housing rehabilitation programs for both owner- and rental-housing units. Additionally, programs to provide new homeownership. opportunities will be explored. For-..renters, the City will ";.'~ - evaluate various activities including rental assistance vouchers, acquisition and ~' , ~.~, . rehabilitation, and also may consider new construction activities 'TCity will continue to a ~ ~~, T_ utilize its strategy to leverage federal funds with non=federal resources; especially those r° ~~ F~ -r. available to nonprofit housing developers. ~ _ ..~ ~`~ LEAD-BASED PAINT HUD estimates that 74% of dwelling ,built prior to 19{3'=have some level of lead-based paint. Since 82% of Santa Ana's housr g~vva ;ur before ~z98~; the City recognizes lead- .: :~~.. :~, based paint hazards as an economic and ~i~`alth is Vie. 7ef'co~t of removing lead paint often acts as a deterrent to ad~iress~r~a tFj,is proble" :.especially for lower income families. The City ~~ ;~,~ - has implementedUD's lead-based paint ha aids regulations (Title X). These regulations require that certain types of,N,UD-funded housing activities must be tested for lead-based ~ ..,, paint hazar-ds prior_to the' begi~ining of any work. If the property owner moves forward with the HUD-funded housing activi,tyall lead-based paint hazards will be controlled or abated as required by Title X. Title. X requirements have increased rehabilitation costs, which often result in" the City providing additional resources to address lead-based paint hazards ~;~- mitigation cflsts:~, The`s'e regulations have also prompted some potential program participants to drop'their request for rehabilitation assistance. 2 9A 242 DRAFT 4/15/09 CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN ANTI-POVERTY STRATEGY The City has identified numerous factors it can influence to combat poverty. Activities and services the City will implement during the 2009-2010 Program Year to combat poverty. include the following: ^ Affordable housing programs including rehabilitation, rental assistance, and creation of new affordable housing units (via new construction or acquisition/iehabilitation). ^ Homeless assistance including prevention activities, emergency shelter, transitional housing, and access to permanent housing opporfunit~es: `Support services will be blended with these activities. - ^ Public safety to prevent criminals from victimizingahe poor. ~ ''~~. Public facility improvements to improve the overall infrastr~icture of the City, but more ~`v ~,. . specifically to eliminate public improvementsfinfrastructure that .negatively impact residential neighborhoods. __~ ~, T =t _.-- ^ Job training, job-search skills and jo,b'placemeritsto provide those living in poverty with ~; new employment opportunities that pay hrgherwages ~'° ~;, ^ Youth recreation and` diversion services which provide youth living in poverty with ,' alternatives to gan and crime activities. ~~ .~ '? ^ The Housing Authority will continue;to irnptement the Family Self-Sufficiency (FSS) prograni,4 which will provide rental assistance, life skills training and referrals to employment training.for program participants. ~~ 1 ~: DEVELOPMENT OF INSTITUTION$A!. STRUCTURES ~. ,., ~ r As outlined rn=the Consolidated Plan, the City of Santa Ana will implement actions to develop institutional"structures and enhance coordination between public and private housing and social service agencies, and foster assisted housing improvements and resident initiatives. The City of Santa Ana will continue to utilize a network of referrals, contacts and partnerships to implement the strategies outlined in the Consolidated Plan. The City's DRAFr 4/15/09 2 93~-43 CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN Workplace Investment Board will work closely with local businesses to identify their workforce needs. The "One Stop" center will assist former welfare recipients obtain training and gainful employment. In the area of housing, the City will continue to build its relationship with local housing providers such as private developers, nonprofit developers, and neighboring housing authorities, to ensure that limited housing resources are utilized in the most efficient and effective manner possible. The City also willcontinue to participate in the regional Continuum of Care Steering Committee in order to identify the housing and service needs of the County's homeless. ~~ ~, ~ .~~ ~~~~ .~ ~ ~- _;- .~-: Santa Ana will also continue to be an active participant in the implementation of a regional ~, ., Analysis of Impediments to Fair Housing workingwith the FairrHousing Council ~to monitor ~"~.~~' ~ - and report actions taken to overcome impediments~to'fair~~l~ousing choices. With respect to ~~~ a.^ ~: ~=~. federal HOPWA funds, the City will consult with privateno~}profit, community, and public institutions to assess the needs of persons with-~Hl~f~ IDS a'nd;determine the allocation of resources. Finally, the City and the Housing Authgrity of tli City of Santa Ana will continue =.:, .- to work jointly to meet the ho~ising needs of Santa Ana's very low-income renters. :',f; _, STRUCTURES TO ENHANCE COORDlNRT10N 1N THE Ct7MfV1UN1TY Coordination: will be enhanced between public agencies, private entities, and community ;. residents through various rnean5:_ Coordination will continue to be enhanced through the ,, , City's Neighborhood Improvement (NIP) Program. NIP will be responsible for assisting Santa Ana's 53 neighborhryood associations by bringing key staff from the City, County, other governmentai'ag~ncies;the private sector, etc., directly to neighborhoods to address their concerns and needs"; Additionally, the City will continue to support the Santa Ana Resource Network's efforts to coordinate the efficient delivery of services to community residents. 29A 3~4 °r~,rra,~so9 CITY OF SANTA ANA 2009-2010 ANNUAL A[T10N PLAN FOSTER AND MAINTAIN ASSISTED HOUSING /MPROVEMENTS AND INITIATIVES The Housing Authority of the City of Santa Ana does not operate public housing - it only provides Housing Choice Voucher rental assistance. The Housing Authority is required to prepare afive-year and one-year plan that highlight its mission, goals and objectives as it relates to the Housing Choice Voucher program. The .2E Authority's plan. was prepared in conjunction with the City's.',.Consolidated Plan. Both s ms's ~~t documents contain references to programs that may offer~mutUal~support to meeting respective Plan objectives. The City will support the Housing Authonty's efforts to assist its `' ;' customers, just as the Authority is dedicated Yo'b'assisting the City to"`implement its `. ~~z ~.~ ~ ~ ~;`~~ Consolidated Plan objectives. ,~a,, ~, LW° 1 '','iC~ r i~ Economic Development ~ ~ -: The City of Santa Ana has develope~c~~'a variety ,of programs aimed at stabilizing and t, ~.>. ~~ ..._ . expanding economic opportunities for its resit! ';",> general. These progra~s~, include :;4, ~~, ^ :. W.O.R.K Center,ta`re ource ce der with an -.'- tF placement needs. i ' ^ State desigri~ted Enterprise Zone ^ Redevelopment '`fiincied business attraction economic opportunitles~ to City residents. j `;the Orange County region in ..~ ary focus on employment training and job and retention programs to provide ^ HUD=approved Empowerment Zone resources to address community economic - ;,. development ~riority`heeds. ~ r, - No CDBG funds will be utilized for economic development in 2009-2010; however, it is worth noting that the City has continued to work with the Santa Ana College to ensure that its Digital Media Center creates full-time employment opportunities for lower income Santa Ana residents. The genesis of the project results from the College District receiving land from the City to develop this business incubator. The City purchased the land several years DRAFr 4/15/09 2 93i~-45 GTY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN ago with CDBG Section 108 Loan proceeds for the widening of Bristol Street. As a result of this public investment any subsequent use of surplus land resulting from the street widening had to be CDBG-program compliant. The City is presently working with the College District to finalize its plan to ensure that business at the incubator provide employment opportunities to qualified Santa Ana residents. :~3 Measure Outcomes The City has implemented HUD's results oriented manageni;erif a~T=d` accountability system ~~ for HUD-funded activity. This system is an effort to neasure outcorn~es,,of HUD-funded ~- X l ~~ programs as well as measure outputs. The City: of~'Santa Ana implemerte`d'this system during the 2005-2006 Program Year based on inforon provided by~F HUD, and subsequently revised these efforts as dictated by HU~'s~firiaf regulations. Presently all HUD- - :r .~. funded activities are linked to outcome, measurements that were developed by City staff and incorporated into the City's 2005-2009 Consolidated;Plan. Furthermore, grant =. applications, grant agreements and quarterly <~cco'nzpfishment reports have been revised to include HUD-required . oi;tcome,-;data to' facilitate accurate reporting in IDIS. This -.; information has been~rtilized to complete data found in Attachment 1 x ~ ,~~ ~. VIII. PROGRAIUI;:SPECIFIG REQUIREMENTS HUD requires that the City discuss how certain program specific requirements will be addressed ~d.ur-ing the. 'program year. Actions to address these program specific 4 requirements are 'outlined below. COMMUNITY DEVELOPMENT BLOCK GRANT The City of Santa Ana will expend CDBG funds on eligible activities to address priority housing and community needs. It is anticipated that 100% of CDBG funded activities will benefit Low- and Moderate-Income households (that is, no CDBG funds will be spent on 2 9A3 46 °ru~F-r a,~s,o9 C1TV OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN activities that do not benefit a minimum of 51% Low- and Moderate-Income households). These activities are described in detail in Attachment 3. The City anticipates it will receive program income during the 2009-2010 Program Year; however, these resources will be reprogrammed at a later time. The City did not have any grant funds returned to its line of credit, nor will it undertake float-funded activities (thus will not realize any program incom" from float-funded ~' activities). Finally, the City does not anticipate undertaking urg~e~nt'rieed activities during the 2009-2010 Program Year. ~ ~~~`,~'~ `~ € ~t,.. ~ ;~~ ~~ HOME ~ , - ~tY ~~ ,: , The City of Santa Ana HOME program for theL009-2010~_Program Year is designed to undertake eligible activities to preserve existing a~,~rdable housing, expand the supply of decent and affordable housing, and s#ren hen public private partnerships. All HOME .~, ; assisted units will have appropriate cove~ants'`an :written agreements in accordance with ~~ - v HUD regulations. ~:~~~' .~, `a` ,; tiz;. ~~.. _~:. z ,,,, - : , '-M := ~ t Federal regulations require that rfIOME fund'~~are used to refinance existing debt secured by multi-family housing; ;the Gty must ensur.e''that its rehabilitation program guidelines comply with section 92.206(b) of the HOME Program regulations. Even though no such project is contemplated for the~,2009-2010 fiscal year, HUD requires that the City outline certain-program provisions in theme Action Plan; therefore, should amulti-family housing rehabilitation/refinance p;r oject present itself to the City, at a minimum, the following _Y. program provisions will be implemented: ,~..~ ~~ ^ Refinancing wiil be permitted on a citywide basis; however such assistance will only be provided to permit or continue affordability for projects undertaken by a qualified nonprofit affordable housing development organization in good standing with City, HUD, private lenders, etc. ^ The minimum affordability period shall be 15 years. DRAFr 4/15/09 2 ~~-4 7 CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN ^ Rehabilitation, not refinancing, must be the primary eligible purpose for the use of HOME funds. To ensure that this requirement is met a minimum level of rehabilitation of $15,000 per unit is required. ^ A review of management practices will be undertaken by the City to determine that disinvestment in the property has not occurred; that the long term needs of the project can be met, and that the feasibility of serving the targeted population over the extended affordability period can be demonstrated. ¢-: R.n "• -, ~: 6-t.*_`. During FY 2004-2005, program guidelines were developed to implemerifi an ADDI-funded ~' ~ ; homebuyer assistance program. Pursuant to A©D-1`regulations, funds will~,be. utilized to ~§~:> provide down payment assistance for eligible household ~~ ,Iaddition to marketing the ~~,,, ~ ,r program citywide, and in various languages, Hous~~g'Choice Voucher rental assistance ,:N.r recipients and residents currently re~sidinb, in manufactured, housing will be targeted. In ~.. . order to ensure participating househol~d~`are suitably-,prepare`d~'fo become homeowners, all 1~Y A' participants will be required to attend pre°and post-ownership training provided by a HUD- ~,, authorized housing couriselrng center. Furthermore, to ensure compliance with the housing ,` affordability term4 of°~24 CFR 92 254, the City .will impose a recapture provision that will recoup all of the HOME-,assistance ~rovided,:ty a homebuyer if the housing unit does not .:~ continue to be he.-principal,- residence of the program participant during the period of affordability. It has been reporfed.,that funding for this program was not funded in the 2009 federal budget, and since the program has sunset no additional ADDI funding is anticipated for 2009 2010. The City wilt focus on utilizing prior year program funds as directed by HUD. ,:; r ,, ,. . As required by tlte` E~OME program, the City has implemented an Affirmative Marketing program for all projects with five or more HOME-assisted units. This is to insure that multi- family owners receiving HOME funds will inform and solicit rental applications from persons in the housing market who are not likely to apply for the housing without special outreach. As also required by the HOME Program, the City has adopted a Minority Outreach Program. 29A348 °~,~T4,~5,~ CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN This is to ensure minorities- and women- businesses are provided the opportunity to participate in HOME-funded activities. EMERGENCY SHELTER GRANT In October 2008, a Request for Proposals was mailed to homeless service providers soliciting applications for FY 2009-2010 ESG funds. Fourteen service-;agencies responded ,`k y, ;. with funding requests totaling $546,135. Grant applicants prima~.ily sought funds to offset '; the costs of shelter operations and essential services: > To `'a~much lesser degree, .`~,r homelessness prevention and agency administration frln ng~was requested_ f) L } h~. tl. _+j~.. J .;. y..Rit .. In February 2009, the City's Human Relations Commission co acted interviews to rate and v ~ ~,~, ~„ rank proposals. Evaluation criteria took into cons~dei-atio -;the following factors: ^ Number of people being served ~ s 5 . .~ ^ Location of the service being proved"e'tl r ~" ~ '~:~ .fit' ~. •, .~ ^ Percentage of program budget repres nted by3tfie request ^ Prior funding history.with the.City of Santa Ana - ,~-: ^ Need for the ser tice~being proposed The Human Relations Commission funding recommendations were considered at the 2009- .A 2010.Annual Plan pi,blic hearmg~_Subsequently, the City Council approved the allocation of all 2009'-2010 Emergency Shelter Grant funds. -~ - , ~ r All ESG grant;applican'ts are required to identify the source of match funds in their ~.., : , application. Match~~unds must equal or exceed the amount of grant funds requested. Grant applicants have identified other Federal, State, and/or local government funds, private donations and fees for services as ESG matching funds. ESG subrecipients are required to submit certified proof of the receipt of these funds with each payment request. DRAFT 4/15/09 ~ 93~-4 GTY OF SANTAANA 2009 2010 An-n-ua- ACTION PLaN HOUSING OPPORTUNITIES FOR PERSONS WITH AIDS HOPWA funds for Program Year 2009-2010 will be utilized to.undertake eligible activities to meet the needs of individuals living with HIV/AIDS that presently are not met by other public and private resources. To identify program gaps, a countywide survey to assess the needs for the region's HIV/AIDS population was conducted during the 2004-2005 Program Year.- This survey was acommunity-based planning effort that incor~iorated the input of interested community members including individuals living with HIV/AIDS, representatives .A of HIV/AIDS service and housing organizations, housing devefopers,`rer"resentatives of local overnment a encies advocates and others. Relevant' tannin ho ~ homelessness g g ,_.: p g, g,, , t1.Y t _, ji ;,. _.., and epidemiological data were reviewed and incorporated into the planning effort. Critical y~. issues and service• gaps were identified and ;~_an advi's©ry committee developed -~ ,~ . , t~ recommendations. These findings have been used~f~y,~"the Housing Committee of the Orange County HIV Planning Council to deVelop,a list of activities for HOPWA funding during - ~ ~:,. p d i _ FY 2009-2010, as well as the expenditure of ovEr $5 Tmillion rri,Ryan White and $341,000 in r-~ Minority AIDS Initiative resources that are e~pectt?d to b'e available during 2009-2010. ~~ S'~5 ~r ~ The specific activrtres-,to be undertaken. in program year 2009-2010 will be to provide supportive services and_tenant-k~tjsed rentaC'assistance. Funds reprogrammed from prior years will 6e focused:on the development of new housing opportunities for individuals living ~:. with AIDS. To better measure the intended outcomes of HOPWA-funded activities, HUD has implemented a comprehensive reporting document. The City will work with its subrecipierit`s to. ensure alk required data is captured and reported. As required by HUD, the < '-"A following informatio`r°' is provided regarding HOPWA-funded activities for the 2009-2010 Program Year: 2 9A 3~ 0 DRAFT 4/15/09 CITY OF SANTA ANA 2009-2010 ANNUac ACnON P[AN HOPWA AnruuA~ GoArs 2009-2010 Short Term Rent 49 Individuals Mortgage/Utility Assistance ~ 1601ndividuals Emergency Shelter 71 Individuals Transitional Housing 69rlndividuals ,~ . . ..;~. ;- Tenant-Based Rental Assistance .: 50 Individuals N Housing Units Under Lease or Under Development 1 ';:,0 Units ~,~ : r s. - -'~,` - - In order for grassroots, faith-based and other comm`,ii'nity organizations to have access to HOPWA-funded housing services, the City of Santa Ana ensrWres~that all such'or"ganizations ''. t ~ ~' are invited to the HIV Planning Council's strategic p alai nnrrig-meeting. These-same agencies `~ are also invited to participate on th,e_ Housing Committee of the HIV Planning Council. Furthermore, nonprofit housing developri~en~agencies areprovided information regarding H ~~ P y h; t housing development opportunities that are funded with HQW~A. ' ; - ,..- - , ~~~. ~~, ~:. . , IX. MONITORING<' '~'` '~~ 7 a''. ~- ~~ ~, ~.k~~ _: Outlined below are the standards and procedures that the City of Santa Ana will use to ~``~ .~~: monitor activities firided dir-ing; the 2009-2010 Program Year. The goal of the City's monitoring program is to ensue long-term compliance with respective program requirement including outreach to minority businesses. y `~ ;. ` ,, COMMUNITY DEVELOPMENT BLOCK GRANT All CDBG funded activities, including those carried out by subrecipients, are required to submit quarterly reports to the City. Housing and public improvement project reports provide a description of project progress and dates for milestones such as completion date. Social service agencies are required to include information on clients served, program progress, and outcome measurements. City staff also has a comprehensive on-site DRAFT 4/15/09 2 93~ -51 CI7Y Of SANTA ANA 2009-2010 ANNUAL ACTION PLAN monitoring program to review performance, quality of services,. and grant administration provided by subrecipients. In addition to ensuring CDBG-funded activities are being carried out in an effective manner, monitoring is used to ensure the timely expenditure of CDBG resources. EMERGENCY SHELTER GRANT The same standards utilized for CDBG-funded subrecipients are utilized to monitor agencies }~. funded with ESG. r~ ~`~~; '~. r.r~. A i x, HOME ~ ~`~~ti A HOME project-monitoring plan has been de~re-oped and4 i%r3plemented by the' City. For ~. rental projects, this plan calls for an annual on-site~'~vrsit~o subrecipients. During these ~;`~. visits staff will sample tenant files ~to . review household: income, rent levels and lease -~,~ ~-.; information to ensure compliance with- HOME~~regulations' and applicable affordability ti x`~ covenants. Staff will also~,review r se pectrveK' admirJrst"rative procedures to ensure ~: ,~,~ compliance with the City;s Aff rmative Marketi°ng and Minority Outreach program. Finally, ,+ ; ~,,. staff will continue to conduct perr;o~iic housirig'`quality standards inspections as required by r HUD program regulations. ,~' ~" =; ~ r--,- ~.~'~ ,, ._ ;; For ownership rehabilitation and assistance activities, the Plan calls for the City to continue ~. its existing underwriting procedures that are designed to ensure participant eligibility and property stanadards com~li~ance. The City will also continue its efforts to provide contract ,~ opportunities for r~iinority%women owned businesses. These efforts will be reported as part ~:Y of the comprehensive Consolidated Annual Performance Report submitted to HUD. HOUSING OPPORTUNITIES FOR PERSONS WITH AIDS A comprehensive report of all activities funded under the HOPWA program is prepared annually and submitted as part of the comprehensive annual performance report to HUD. 2 9A3~5 ~ DRAFT 4/15/09 C1TV OF SANTA ANA 1009-2010 ANNUAL ACT10N Ptah The City has established a formal monitoring system for HOPWA-funded activities, which is carried out annually. In addition to quarterly, annual and project close out reports, the City monitors all HUD- funded programs with the assistance of the Finance Department to ensure all federal funds are spent in a timely manner. Finally, HUD's Integrated Disbursern~nt and Information :~', System (IDIS) allows the City to monitor line of credit balances:'an~i project status. Santa ~ x:~. Ana has taken extensive measures to safeguard public funds and ensure timely use of funds. .; ,~, , =~ ;~ ~# :~. ~-~ r, ~;. ,., ,t ~~,~~` ~`~ ~~ ~~-a y: #~ ., ; .~f~ , ~~ r ~~~ r ~ ~-~ ~4. ~ ~,~r -; ,~:~~ ,~,r, ~.:. ~; ~~ •__ ~ - ~ ~~ ~ ~ rZ: a. ~.k~~ - oru~Fr a/is/o9 40 29A-53 CITY OF SANTA ANA 2009-1010 ANNUAL ACTION Ptah X. CERTIFICATIONS In accordance with the applicable statutes and the regulations governing the consolidated plan regulations, the jurisdiction certifies that: Affirmatively Further Fair Housing -- The jurisdiction will affirmatively further fair housing, which means it will conduct an analysis of impediments to fair housing choice within the jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting that analysis and actions in this regard. Anti-displacement and Relocation Plan -- It will comply with the acquisiti"o'riand relocation rr . requirements of the Uniform Relocation Assistance and Real Property A~'ulsrtion Policies Act of 1970, as ,~~ ~ tiL^. amended, and implementing regulations at 49 CFR 24; and it has in effect and is~tollowing a residential antidisplacement and relocation assistance plan required under sectio~~1 ~4(d) o~the' [dousing and Community Development Act of 1974, as amended, in connectic~i~with any activit}`'`a~sisted with funding under the CDBG or HOME programs. + '' r' c"~# t ., 3~ h ,r 6 Drug Free Workplace -- It will or will continue to pra~~ide'3 drug free44~orkplace by: ; ;~.~. 1. Publishing a statement notifying employees that the uila ~~inanufacture, distribution, ,._. dispensing, possession, or use of a controlled substarice cs~rohibited in the grantee's workplace and specifying the actions that willntfc talcen against employees for violation of such prohibition; 2. Establishing an ongoing drug-free awaren~a~. },r ~~ T~itn tu, infc~rn~ ~niplq}`ees about- ~`~'~': (a) The dangers of~drug abuse ii~fh~ ~~ork'place,~~~ _ (b) The granges policy of mamtaimn~ a drug free workplace; (c) Any av1alable iii=ii~cuunselin~;"rehabilitation, and employee assistance programs; and (d) Tile~I e~ialties that rn3 y be impo~ec] l~.pon employees for drug abuse violations occnng in the ~~~c~rh~l`~ce; ~~ ~: ~ J 3. .Making it a require nznr th Ott arh emplrn~c~~to ~be engaged in the performance of the grant be given a c~~py: of tht st;~temcnt required by paragraph 1; 4. N~itifying the tmp[(>; ~ ~ i n' t}cc'statement required by paragraph 1 that, as a condition of `~'cmployment under Ifie ;~r~u~t, t}aeemployee will - N,, f-Ii_ ~ (a) Abide bv` tli~ terms of the statement; and ,.;, (h)~ NotiFtl~"employer in writing of his or her conviction for a violation of a criminal dntg. i~tute occurring in the workplace no later than five calendar days after such conviction; Notifying the agency in writing, within ten calendar days after receiving notice under subparagraph 4(b) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to every grant officer or other designee on whose grant activity the convicted employee was working, unless the Federal agency has designated a central point for the receipt of such notices. Notice shall include the identification number(s) of each affected grant; 29A4~54 °ru~F-ra,~so9 CITY OF SANTAANA 2009-2010 ANNUAL AcrroN PLAN 6 Taking one of the following actions, within 30 calendar days of receiving notice under subparagraph 4(b), with respect to any employee who is so convicted: (a) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973; as amended; or (b) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency; 7 Making a good faith effort to continue to maintain adrug-free of paragraphs 1, 2, 3, 4, 5 and 6. Anti-Lobbying -- To the best of the jurisdiction's knowledge No Federal appropriated funds have been paid or w' ~l for influencing or attempting to influence an offs " or em Congress, an officer or employee of Congress, <an empl connection with the awarding of any Federal co ~ c the making of any Federal loan, the entering into of ands?; continuation, renewal, amendment, or modification o~~ '% cooperative agreement; ~> through implementation '.-yr,~_ k,, by or on behalf o~',it; to any person ~. ee of any agency, a ~vleinber of Member of Coribress in g of any Federal grant, the ie agreement, and the extension, eral contract, grant, loan, or Z. If any funds other than Federal approliat<<1 t und~~e h~<n paz~or will be paid to any person for influencing or attempting to influene an otti per oim cn~'~lo~ree of any agency, a Member of Congress, an officer or employee of Cort~t'ess~t~ pan emp~oe~of a Member of Congress in connection with th~ti i,eler~[ ~'ontract, grant~~n, or cooperative agreement, it will complete and x ,:.. submit Standard I~orrn-LI I , "T`)i closure Foi7n to Report Lobbying," in accordance with its instructions, ancl'° ,` '~'t ' f ~,' ~c ' 3. It will require that~the lans~ua~~t of parabra~h I `and 2 ofthis anti-lobbying certification be included in the a~~ Ord 'docu~iients for all s~,h~wards at all tiers (including subcontracts, subgrants, and coi~tiact5 un~l~ ~ ~~raiits; loans, and cooperative agreements) and that all subrecipients shall certify andJisclos~ ,1~~~',rdinaly. . ~, . Authorit} cif Jurisdiction''-.Thr cons~~lidated plan is authorized under State and local law (as applicable) and the. jurisdiction possesses the legal authority to carry out the programs for which T t is seeking funding, in accordance with applicable l II:JD regulations. Consistency ~rith~plan -- Tfe`housing activities to be undertaken with CDBG, HOME, ESG, and HOPWA funds are co,nSisteilt with the strategic plan. Section 3 -- It will comply with section 3 of the Housing and Urban Development Act of 1968, and implementing regulations at 24 CFR Part 135. Signature/Authorized Official David N. Ream, City Manager Title DRAFr 4/15/09 Date 294i~-55 CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN Specific CDBG Certifications The Entitlement Community certifies that: Citizen Participation -- It is in full compliance and following a detailed citizen participation plan that satisfies the requirements of 24 CFR 91.105. Community Development Plan -- Its consolidated housing and community development plan identifies community development and housing needs and specifies both short-term and long-term community development objectives that provide decent housing, expand economic opportunit~e~s primarily for persons of low and moderate income. (See CFR 24 570.2 and CFR 24 part 570) f ~` ~_ ~` Following aPlan -- It is following a current consolidated plan (or Compre;}~eii'si~~e Housing Affordability Strategy) that has been approved by HUD. < ; ~ ~,, Use of Funds -- It has complied with the following criteria , .'.~`' , ~~?; . , =~~-~~ L. L Mazimum Feasible Priority. With respect to activrties expected to be assisted ~~ itlY`CDBG funds, it certifies that it has developed its Action flan so as to dive maximum feasible priority to activities which benefit low and moderate incom"~:: taii~lies or ~j~d in the prevention or elimination of slums or blight. The Action Plan may also include~:3tlivities which the grantee certifies are designed to meet other community development needs'li~~~i rig a particular urgency because existing conditions pose a serious a~n~ immediate threat tip the health or welfare of the community, and other financial resources are not iy~ii~(able`); 4 -4 f` '.'L 2. Overall Benefit. The aggregate use of~C,1773~ ~ funds ificludin~ section 108 guaranteed loans during program yearO X009„ (a period s~e~ itie~l by the grantee consisting of one, two, or three specific consecutiv~~ro~~`ain years), shall Pr iicipally benefit persons of low and moderate income in a manner that,cres that `it least 70 pei c,ciit of the amount is expended for activities that „x benefit such pcr~ots during the~~lesignated heri~~d; .~. ~' 3. Special Assessnicnts Tt will.not: attetiiht tt~ r ~~over any capital costs of public improvements assisted ~3~ith CD13G,'tuntis including Sectioil~ 108 loan guaranteed funds by assessing any amount against ~~roperties ~~~~ ned'and occupied by persons of low and moderate income, including any fee ~ ~.: ,<, charged or as, ~s~mm~t m id'c as a condition of obtaining access to such public improvements. I Towever, if CLi3U: fi~n~is ~i e used to pay the proportion of a fee or assessment that relates to the ` ~ .-capital costs of puLjlic f~.nproveiii4nts (assisted in part with CDBG funds) financed from other revenue sources, an's~ssessment or charge may be made against the property with respect to the piitli~improvements financed by a source other than CDBG funds. `~ '~ The jur rsdiclic~n vvil~iot attempt to recover any capital costs of public improvements assisted with CDBG tutids mcl~iding Section 108, unless CDBG funds are used to pay the proportion of fee or assessment attributable to the capital costs of public improvements financed from other revenue sources. In this case, an assessment or charge may be made against the property with respect to the public improvements financed by a source other than. CDBG funds. Also, in the case of properties owned and occupied by moderate-income (not low-income) families, an assessment or charge may be made against the property for public improvements financed by a source other than CDBG funds if the jurisdiction certifies that it lacks CDBG funds to cover the assessment. 2 9A 4~ 6 or~~r a,~s,o9 CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN Excessive Force -- It has adopted and is enforcing: 1. A policy prohibiting the use of excessive force bylaw enforcement agencies within its jurisdiction against any individuals engaged in non-violent civil rights demonstrations; and 2. A policy of enforcing applicable State and local laws against physically barring entrance to or exit from a facility or location which is the subject of such non-violent civil rights demonstrations within its jurisdiction; Compliance With Anti-discrimination laws -- The grant will be conducted dministered in conformity with title VI of the Civil Rights Act of 1964 (42 USC 2000d), the. ' 't~~Iousing Act (42 USC 3601-3619), and implementing regulations. ;~~ r Lead-Based Paint -- Its activities concerning lead-based paint will CFR Part 35, subparts A, B, J, K and R; Compliance with Laws -- It will comply with applicably Signature/Authorized Official Date David N. Ream, City Manager Title ~4'~, . wit requirements of 24 DRAFT 4/15/09 ~ 9[l~ _ CITY OF SANTA ANA 2009-2OZO ANNUAL ACTION PLAN Specific HOME Certifications The HOME participating jurisdiction certifies that: Tenant Based. Rental Assistance - If the participating jurisdiction intends to provide tenant-based rental assistance: The use of HOME funds for tenant-based rental assistance is an essential element of the participating jurisdiction's consolidated plan for expanding the supply, affordability, and availability of decent, safe, sanitary, and affordable housing. ;`.; r.. Eligible Activities and Costs -- it is using and will use HOME funds for eligiEl~ activities and costs, as described in 24 CFR § 92.205 through 92.209 and that it is not using an~3: ~a i I1n~t use HOME funds for prohibited activities, as described in § 92.214. ,fir ~,~' >~*T r. -~ `~ Appropriate Financial Assistance -- before committing any filnda~to a project, rt v,'ill evaluate the project in accordance with the guidelines that it adopts for this purp~o~e ~arid will not invest anyo~HOME funds in combination with other Federal assistance than is necessarv'to provide affordable housing~~~, Signature/Authorized Official David N. Ream, City Manager Title {,.r , h~`` y Y Y, v .j _ ~. } \'. h ,_ -. ~-~ Y ~: . s ~G ,f .y .. t ;_ ~ ~w c i, . ~T ~AV~41 : ti... n... Y- Date rt r ~ =r;`o_ w .! , +; a d':~,' .~X~. ,~L. ~A .d .Y,fr ,.~ ~'~t-). ;k ~~ f~ _ ~'~. G~ 5 29A-~8 DRAFT 4/15/09 CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN ESG Certifications The Emergency Shelter Grantee certifies that: Major rehabilitation/conversion -- It will maintain any building for which assistance is used under the ESG program as a shelter for homeless individuals and families for at least 10 years. If the jurisdiction plans to use funds for rehabilitation {other than major rehabilitation or conversion), the applicant will maintain any building for which assistance is used under the ESG program as a shelter for homeless individuals and families for at least 3 years. ~x~ Essential Services and Operating Costs -- Where assistance involves essentia['services or maintenance, r,.:<,:: operation, insurance, utilities and furnishings, it will provide services or sheltcr~to homeless individuals and families for the period during which the ESG assistance is provided;«~ithgirt. regard to a particular site or structure as long as the same general population is served. {~'' `' ~ ~}~ Renovation -- Any renovation carried out with ESG assistance 5}i~ill be sufficient to ensure that the building involved is safe and sanitary. ~ ', t v;,, ; Supportive Services -- It will assist homeless individuals rn obtaining.~ihfiropriate supportive services, including permanent housing, medical and mental health trcatu~ent, cc~u~iseling, supervision, and other services essential for achieving independent living, and other: L edcra~ 5'tate, local, and private assistance. Matching Funds -- It will obtain matching ari~lour~ts required un~lcr2=t CFR 576.51. Confidentiality -- It will develop and implement E~<<~ccdures~to rn~urr t}i~ eonfidentiality of records pertaining to any individual provided family vi~lci~cr 4n ~.~~iitir~n~or. treatment services under any project assisted under the ESG programs intluciing prote~ tiim ~jgsii,ist the relcs~se of the address or location of any family violence shelter projeet.ceg~evith the written authorization of the person responsible for the operation of that shelter. _.E ~~ r% _ n ~ ..:,~ ~.,.,, ~ Y,'' Homeless Persons Ins olvcmtnt - To thu rnaY_ inuun chCe;nt practicable, it will involve, through ~~ r =- . employment, volunteer ~er~ tces, or othcri,~ise. home e s individuals and families in constructing, renovating, maintaining. ~~pcratiri~ fr~;ilities, ana ~ro~iding services assisted through this program. Consolidateii~Ylan -- If is l~~llu~~~in~,a current HUD-approved Consolidated Plan or CHAS. ~._<< ; ~.~' Disc~ar~;e Policy ---- It has establisheili~,,d policy for the discharge of persons from publicly funded institutions or systems ofcare-..(such as health care facilities, foster care or other youth facilities, or correction programs and institutions} in order to prevent such discharge from immediately resulting in homelessness t~ir such persu~is` ~ .,. HMIS - It will ~ urriply wtli~HUD's standards for participation in a local Homeless Management Information System and the collection and reporting of client-level information. Signature/Authorized Official Date David N. Ream, Ci .~ Manager Title DRAFT 4/15/09 2 94i~-59 CfTY OF SANTA ANA 2009-2010 ANNUA! ACTION PLAN HOPWA Certifications The HOPWA grantee certifies that: Activities --Activities funded under the program will meet urgent needs that are not being met by available public and private sources. Building --Any building or structure assisted under that program shall be operated for the purpose specified in the plan: ~> 1. For at least 10 years in the case of assistance involving new constructi"oil-`substantial rehabilitation, or acquisition of a facility, r ~' z?~ _ 2. For at least 3 years in the case of assistance involving non-s}~~~ liiti t' abilitation or repair of a building or structure. ,~ ~ ~ , Signature/Authorized Official Date David N. Ream, City Manager Title a`_ # ~.r> ,,; a ,` ,~ ~;~<:: ~L~.' -i~: .; ~r v' ': l~' j - t,.~i~ , ~;~ r 2 9A476 0 DRAFT 4/15/09 Carr Of Sarora ANa 2009-2010 ANNUAL ACTION PLAN APPENDIX TO CERTIFICATIONS INSTRUCTIONS CONCERNING LOBBYING AND DRUG-FREE WORKPLACE REQUIIZEMENTS: A. Lobbying Certification 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 cacti such failure. ~`,, B. Drug-Free Workplace Certification '~''~ <:; ~ H-~. 1. By signing and/or submitting this application or Qratit agreement tti~, grantee is providing the certification. '~ s; ` ~` `'S ,; 2. The certification is a material representation tf fact upon which reliance '~U ~" placed when the agency awards the gr~rit if it is later c3et~rmined that the grantee knowingly rendered a false certification, or=otherv~4is_~"yi©lates the requirements of the Drug-Free Workplace Act, HUD, in~~dditioii` is any other remedies available to the Federal Gov rnment, may take fiction authorized under the Drug- Free Workplace Act. ,~ , r~.-_ 3. Workplaces under grants, for`~~i"antc~~s nthe~'tl~~in in~ii~ ideals, need not x s- be identified on the certificatic`~t~:Li kn~~lyii; they=,may~_be identified in the grant applicatiorrr tf the grantee~ic u js_.,iot iilentify~the=workplaces at the time of appii~ation, c~'r~ttpon away d cif iliere is no application, the grantee must keep the ident~ivthe workpl~ice(s) on file in its office and make the mloi-rnation available for Feder.~i~jiispection. Failure to identify all knovvn.vorfiplacesctttutes n „ul:ition of the grantee's drug-free workplae~ ~~quir" ents~ ~ 4. Workpl,~cr icleiitilirations must include the actual address of buildings (oi p:u-tsc~f hu i I<lili`75) or other sites where work under the grant takes place. Categurical descriptions may be used (e.g., all vehicles of a mass transit authority or State highway department while in operation, State employees ire each local unemployment office, performers in concert halls or radio ~s(ations). ~: 5. `' 1f the «~ofkplace identified to the agency changes during the pcrt>m~arice of the grant, the grantee shall inform the agency of the chan~c(s), if it previously identified the workplaces in question (see paragraph three}. The grantee may insert in the space provided below the site(s) for the performance of work done in connection with the specific grant: o~nF-ra,~s,o9 29i~-61 CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN Place of Performance (Street address, city, county, state, zip code) Check if there are workplaces on file that are not identified here. The certification with regard to the drug-free workplace is required by 24 CFR part 24, subpart F. 7. Definitions of terms in the Nonprocurement Suspension and Debarment common rule and Drug-Free Workplace common rule apply tom-tl%is certification. Grantees' attention is called, in particular, to the, following definitions from these rules: ~°'" `' ~~; 7_ t :: ~ "Controlled substance" means a controlled substancr'iri Schedul ~,I through V of the Controlled Substances Act (21,U S:C. 812) arid~is further defined by regulation (21 CFR 1308 1 I;tl~~sugh 1308.15), ` '` *,.. "Conviction" means a finding of guilt (inclu~li`u~ a plea of nolo contendere) or imposition of sentence, fir, both; by any judicial body `~~ charged with the responsibility to detennirir violaho 5 o~-the Federal or `` State criminal drug statutes; ~'~ " =~°~ .., ~- "Criminal drug statute" means a Federal or non'.-T~e(lcral criminal statute involving the manufacture:;rhs(ribution, dispensii~g~i~se, or possession of any controlled substance ~~~ ~ "~~ ~~ "Employee" means the employ~,,o l ~ ~~antee d~rc etl},engaged in the performance of work under a grant; including ~~); A11 "~r'ect charge,' employees; (ii) all "indirect charge" ~ s ,.,. , employees lr"nles's tti ir'impact or'inyul~ement is insignificant to the performance of the grant; and (iiij temporaryt personnel~~i~id consultants who are directly engaged in the perfmm~uce of work t~rtder the grant rind who are on the grantee's payroll. This definition doe's- nc~t include wort, ~r,,not on thr payroll, of the grantee (e.g., volunteers, even if used to men t ~ iii<~tchmg r~c,quireitie it `consultants or independent contractors not on the gru~tt~ , E~ayroll;;or employees ufsubrecipients or subcontractors in covered ~~~orkl>l~icc): .'r r,, ~,~ 49 ow~Fr a/is/o9 29A-62 MAP No. 1: LOW- &MODERATE-INCOME AREA -N- OA 0.5 7.0 !.5 2.0 mi __.__. ~~~stcr~ 1s~ r urea aaa, 2IX35 wa.,~.~w~...., 0~,~4,~5,~ 2~~-63 u W_ G' !'~ N o~ 0 N O a a L Z ~ ~ - 1- ~ ~- sr ~ ~¢ y , ~~ ~ _ ~ zr ~_~ ~-- d ' c l F- m ~ c ~ ~ L.d O F i k 3, ITS ~ ,;y N a..mY _ ~a~ ~Q - __ - __ _ _ m a at w d~yr`.o r. mo ^ a ~ ~ ~ ~~ ~~ ~ x 4. ~ ~ ~~ ~ 0 ., „~, ~ - .. ~., F 3, „ ~ 0 "' a _ ~ g ~ i '` ~ ,~~r ~ C7~ ~ ~~ y- _ ~ _ ~ i i I d - ~ F' ~ r , I _. ' ~~ .' ' Q -,. _.. _ j F , _~. ~ ~ ~ l". ~ ' - , Q r , ~ __ _ ~~ I ~ ;;- <. t .. „_ - _ .. , y ,- > ~~ ~ r a z ~~ q ~ ~ a ~ ~ ~ ~ Y v 2 ~ \ ~ I , ~ ~ > : ~,~n $r- : ~ ~' ~, ~.1. ~ ~; ~, ~ ~ ;, ~ d ~ z o r ~ ~ , a ~ ~ _ ~' ]'~ 3 _ ~ ~ 'fs ~ . W r ~ ~: ~ P iA . \ ~ ,.~ .~ a ~ , ~ . T ~ , n ° n ._ r~ C, f _ u -~ . ~ s -- b ~ _ ., ~ ., 3 _ _ v '° 4 ~ / _ ~ ~ l ~ l 4 ~y C ~ G ~' V IEW SY ~ ( ~^ ~ f,, ~ $ IR „ ~ 4 1 !~ ~ t _ i _ ., ~ '" ~ ~ ~G e . ~ ~ ~ ~ ---_ ... ~,~ r ' ;. ~ 5 ~~ya 5~~s~„t,~ ~ _ - ~ ~E _ _.. ___ r~ ~ t ~ :-,. ~` ,.,d ~~ L ~ .,3 ~- ,.,. ,. - . - J Wis.. - ._ _ ~_. ) `_ ~ .. ~~ . ~~ i_._.. _ ._ .,_y ~-i _7 ~ ' ` - .. - ---- ' _ _ ~` ` f ( S ; ~ , -- _ _ ~ - ~. m 0 a a 29A-64 EXHIBIT 1 PROOF OF PUBLICATION 8t SUMMARY OF PUBLIC COMMENTS. ~:'__ .w ~r , ~•_ r; r E 4 G ~'~ ~~; h h i .~,YZh# J ~RAFr a/is/os 52 29A-65 PUBLIC NOTICE NOTICE OF PUBLIC HEARING TO BE HELD BY THE CITY OF SANTA ANA COMMUNITY REDEVELOPMENT & HOUSING COMMISSION ON THE PROPOSED SUBMISSION OF THE 2008-2009 ACTION PLAN, COMMENCEMENT OFTHE 30-DAY PUBLIC COMMENT PERIOD, UTILIZATION OF THE UNCAPPED 80% HOUSEHOLD MEDIAN INCOME STANDARD NOTICE IS HEREBY GIVEN that the Community Redevelopment and Housing Commission of the City of Santa Ana will hold a public hearing on April 21, 2009, at 6 PM, at the City Council Chambers, 22 Civic Center Plaza, Santa Ana, California 92701, pursuant to the submission of the City's proposed 2009-2010. The 2009-2010 Action Plan is prepared in compliance with federal regulations [24 CFR 91]. The Action Plan delineates proposed activfties to be funded under the U.S. Department of Housing and Urban Development's (HUD) Community Development Block Grant (CDBG), HOME Investment Partnerships Act (HOME), Emergency Shelter Grant (ESG), and Housing Opportunities for Persons with AIDS (HOPWA). It is important to note that as of the date this notice was prepared, the U.S.'Department of Housing and Urban Development (HUD) has not notified the City of the actual'~moiu~t of funds it will receive for the aforementioned grants. For planning purposes, the City is utilizing current year (FY 2008-2009) grant amounts.:an`adyustment based on final 2009-2010 grant amounts will be necessary when HUD publishes final numbers. Additions or reductions in funding for actiiC"nies3vill be based on allowable uses of funds per respective federal regulations and amount awarded. As advised by HUD no additional notice of these chah,es will be made by the City. The City approximate amount of funding the City anticipates it will receive for FY 2009-2010 is as follows: z i''y~ HOME ESG .#' H ~P`N1FA, CDBG $6,818,885 $2,367,607 $304,972 ?, $1,402,0:~;~- :•, In addition to these anticipated resources, the City may also utilize program mcnmP , received in prior years of during FY 2009-2010 and/or unprogrammed/reprogrammed funds from prior years; this includes approximately $1,OOO,0D0 i'ii CDBG funds and $115,060 in f ik1PVJA funds. ~°" ~r, . For FY 2009-2010 the City of Santa Ana proposes to expend HUD federal funds as folj~ si'7 Public Facility Improvement- Neighborhood Sponsored Projects ~ ,CDBG $50,000 Code Enforcement -Enforcement of housing & municipal building codes ~`~w'`, CDBG $1,700,000 Public Services -Senior, youth, disabled & other related programs ~r CDBG $1,000,000 CDBG Admin/Planning- Program oversight and fair housing counseling CDBG $737,200 CDBG Housing Rehabilitation -Single-&Multi-Family Housing Re19= b...- , CDBG $245,000 Neighborhood Park Improvements ;''}' = CDOG $150,000 Neighborhood Street Improvements - CDBG $2,917,800 Homelessness Prevention §"' '° ESG $28,000 Homeless Essential Services .?~ -' " ' ESG $90,000 Homeless Facilities Operations ~,° ESG $182,000 ESG Administration -Program oversight °> ' ",Y %~'~ . ESG $4,972 HOME Administration-Programoversi=,I~t: _ €~".rr' HOME $236,760 CHDOMultifamilyAcquisition/Rehabilif'aticn ..''j M~S~ HOME $355,142 MukifamilyAcquisition/Rehabilitatinns HOME $1,325,705 Single Family Rehabil'dation ,-~s^af _ HOME $450,000 HOPWAAdministration-Programoversight '`' HOPWA $42,060 Support Services-Supportive services&hcr ~nctorpersonsxijjhi{).UjAiDS'_,~-,~ HOPWA $ 859,940 Tenant Based Rental Assistance -Rental assistarite fr,r~ persons with HIV%A#LI; HOPWA $500,000 30-Day Public Comment Period - The 30-day pu~tlc co~iuuent period tnr u~ : i ~ of 2010 Action Plan will commence on March 23, 2009 and will end at noon on April 21, 2009. The draft plan shall be availabie.for public inspection dunn~, n aul5i husinPSS hours between 8:00 a.m. and 5:00 p.m., Monday through Friday in the offices of the Housing Depart~ienf, 2p Civic Center Plaza, 3' Floor r ~ ,ni inRy oe~elopment Agency, 20 Civic Center Plaza, 6'" Floor, Office of the Clerk of the Council, 20 Civic Cent ,'r Plaza', Room 809, and the Main F~biic ^I,rary, co Crvic tenter Plaza, Santa Ana, California. Written comments on the plan may be submitted to the Housing ijlvlsian on or before noon on Apiil 2 r, '009. ~;;; . The public hea~og,'preparation ofthe draft anion Plan, and 30-day public comment period meet the statutory requirements for planning and application for federal funds wider th'e CDBG, HOME, ESG' and HOPWA Programs. s'~~ Use of Uncapped if09a Household Median hrcome Standard This also serves as noticrl~'~tat the Pity of Santa Ana has chosen to utilize the uncapped 80% household median income standard to qualify participants for CDBG and HOME funded p~cgraiais. T73e uncapped income standard is revised annually; current uncapped income standards are for the year 2008 and are subject to revision by HUD: Uncapped 80% Median Income Umits Household Size 1 Person 2 Persons 3 Persons 4 Persons 5 Persons 6 Persons 7 Persons 8+ Persons The REGISTER-PUBLIC NOTICES: Publish March 22, 2009 Maximum Household Income $47,100 $53,800 $60,550 $67,300 $72,650 $78,050 $83,450 $88,800 29A5~6 DRAFT 4/15/09 SUMMARY OF PUBLIC COMMENTS Summary 30-day Public Comment Period Comments: [To be inserted at the end of comment period] E. :Y l ~,-.~ . Summary of Apri121, 2009 Public Hearing Public Comments,: ' ~~ `~. °~ "~'~ ~ b~ ~~';•,, ~~:. ~ ~ ,. [To be inserted at the end of public comment] ,~ ~~ -_; ' .~~ ,. ~r ,' ~~~ . ~~ `i c, ~ ~ i.: S ..1 .,-. 4, t< is '. ~RAFr a/is/o9 54 29A-67 CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN .~ ~" ~ a~ ., ATTACHMENT 1 ~.. ,,_' ~~:~~ ~~ ~ rz SUMMARY OF 5-YEAR A0001#~PLiSHMENTS `' ~'~* ,w~ ~. ,, ~h~ ,: ~~: ,. ,:~_ _ _~ ;~~ ~y -' 4,7 i~ F ~ '4~, ~ r `, ~ ~ ~ ~ w r ~ i ~~~~- ~~ i~ ,`,. a-r~ ;. ~~. } . 'ti L Ya 29A-68 SUMMARY OF 5-YEAR ACCOMPLISHMENTS 2005-2009 d.,a7R, xmxrx, ~ - ~ ti: ,....: _~ ~e .. ,mss, ..u a . Y.:-; ~ h Hatising Needs . f- -. .~ ~ , . ~, -. ~ - ~'~ _ _ ~~ `,~ All fundin Sources ~' Rental Housing Extremely Low Income 62 4 34 , _34 ~~ 10 ~ 9 ~ 7 4.1% 0% - 30% of median income units units units - units unrt"s:,~ ' Very Low Income 51 3 27 246 8i z 32.9% . 31% - 50% of median income units units units .units nit • Low-Income 13 1 1 .50 ~ ~ ~ - ~ p 51% - 80% of median income units units Units Units ~ ~ nits 3 % ~ Moderate Income 0 0 1 ~~ 0' ~ ~ ~ 81% -120% of median income units units unit .. - un(ts._..`,~ . n.~-" NA ~,K• ;.. . 708 621 942 10;0 00 ~,. ~ Code Enforcement . ~ s ~ 22 7% , Units Units Units Units~~, rt.' .,~,. ~, ~ _•,' t 2,475 2,885 2,812 ~ 2,558 ~ ~~ '% 1 Section 8 Rental Assistance - ~ 109.9Y° Hshlds Hshlds Hshlds Hshlds ~ ' sh d Owner Housing Extremely low Income 42 8 15 ~ 30 ~; ' ~ 6 . ~~ ~ ~ -~ ~ %", 216 7 / '~ 0% - 30% of median income units units units ~' unis ", ,. n, ° ~ r~3. , ~: Very Low Income 26 14 19 90 9 k " ` 65 6%: " 31% - 50% of median income units units units .~ uriits ' L,I ~ % Low-Income 4 5 9 -` 90 1~ E '~~ ~ ~~20 0% ` 51%-80% of median income units units uniu units ~~ ~< Moderate Income 4 1 0 78 ~" `~ = 6 4%-: 81% -120% of median income units unit uniu ~.. units s; ~~~. Above Moderate Income 0 0 0 ~ 280 ~= ~ ~ _ ~ ° 0% 120+% of median income units uniu uniu units '?- n;N ~ Code Enforcement 2 998 3 590 3 345 1~ 500 '-r~= '• X933 ~ ;~' ~- X79 5% Units Units Units Units ~=S'~ nits . - Homeless Z 1,959 2,311 2,707 7,500 P~6~ ~,~ ;, Supportive Services : • 93.0% Individuals Individuals Individuals Individuals ,;.Ip nnd,~,s ~ ~, Emergency Shelter ~ 1644 979 1099 4,000 Y; 3~7~22 • 93.1%-- " Individuals Individuals Individuals Individuals t Intl S u8 ~ , Z 107 35 106 •750 2~I8 Transitional Shelter t I = 33.L°o Individuals Individuals Individuals Individual ~ d~Idita 0 0 0 Permanent Supportive HousingZ - 3, ~. ~ ~ 0.0% Individuals Individuals Individuals Individuals t , 'in , ~_„~1, ~'.- Z 362 194 190 . 2,000 = . ~ ~- Homelessness Prevention + r 37.3% Individuals Individuals Individuals individuals dt~. _._9P 4/15/09 Attachment 1 29A-69 SUMMARY OF 5-YEAR ACCOMPLISHMENTS 2005-2009 .. Special Need Housing s 0 0 0 50 ~ 0~ ' '0'OSo Elderly Individuals Individuals Individuals ~-,Individuals = ~ ;,lnc~tyi, u, s~ Frail Elderly a 0. 3- ~ .-NA Individuals.; ~-; Disabled 0 0 0 ,50 v A ~- o.a% Individuals Individuals Individuals Individuals ~ _ '~dtvl a ~. _ Substance Abuse ~ ~~.~z ~ ~ ti~ °~ NA Individuals ' x. Persons w/HIV/AIDS a 386 232 214 ~ ,1,310 n `` ~ ~ 63 5%, ~ ' Individuals Individuals Individuals Individuals n sir . `'~ F "~ ,- "Community Needs ,- ~'' ~?.~~ ~, Federal Furidiri So,urceS,OnC _ -,* Public Facilities Senior Centers ~,0,~ ~ ' ,~, yNA t' Projects.. _ - Youth Centers ~~ w O.O~o° Project Projects Projects ' Prolects~." o e a :; Neighborhood Facilities ~ ~ ~ NA , P~o ~s 1 1 0 4; ~: .~ ' Park/Recreation Facilities S0 0%' Project Project Projects Projeds::e. o e _ _ Other -Fire Equipment 3 0 1 i 4'r ~ k F _ ~" 100.0%: Projects Projects Projects .•Projects' '~ ' .~toi.~4~ ~~ Infrastructure Flood 0 0 0 ; 2 : 0.0% Drain Projects Projects Projects Projects , pr ~ ;,; Water Improvements ~~ r NA ; Projects Street Improvements 6 0 0 6' k 100.0% Projects Projects Projects Projects ;~ .jg~ ~j.: ,- Sidewalk Improvements s ~ ` ~ NA Projects , 0 Tree Planting _ NA 'Projects Street lights 0 0 0 ~ ? 0. 0~.0% Projects Projects Projects r Projects. ~: _ o ' Neighborhood Traffic Light `:~- ° ~ ct ~ ~ NA . ` Proje s ~.. ,:. Sewer Improvements 0 NA~ . } : _ Projects . a/is/o9 2 Attachment 1 29A-70 SUMMARY OF 5-YEAR ACCOMPLISHMENTS 2005-2009 .. Public Services 1,275 1,425 1,046 ~" 5,500 °: sk X Senior Services 68 1% Individuals Individuals Individuals Individuals= ,, ndm dais G 11,609 7,938 5,293 50,000 ~ 2~;8~~0~ ~ -; Youth Services "'~ ~ ; 49J9'° ; Individuals Individuals Individuals Individuals d uaj~ ~ ~ , Transportation Services _~ ~~ ~ ° NA ,Individuals'- 128 149 157 . ~ 25 43~ Substance Abuse Treatment _ ~ ,~ = 1736.0%~~ Individuals Individuals Individuals Individuals ~ als .Itldlv(i~t}_ 0 ~~ ~ ~~ Employment Training -. ~ _ NA Individuals 6 275,476 275,476 275,476 275;476 7~.__~ ~ 0 Anti-Crime , • 1 0 0% ~ Individuals Individuals Individuals Individuals: • n a 3 ,Fy`s, 3" TAO; " i .G a; Childcare ~ `• " NA, ~;, Individuals - }~ ~cr T . O a ~ ,~.~ j Healthccare «_,.:~ r ~, ~,~~:NA~ > Indwiduals: _ . ,,,,_ Other -HIV/AIDS Services' 349 430 440 2;500 ~l1'~ ~ "'~~ ~': ~ 8/0 Individuals Individuals Individuals Ind victuals ` diyi _ s ~` ~' 12 450 14 822 12 333 000 _ ~ 20 9°-~iCl "'"'" " ' Other -Low/Mod Persons , , , , ~ ' ~, 198.Oro Individuals Individuals Individuals Individuals pdavi ual v Other -Persons w/Mentally Illness 0 0 0 100 0 0.095 *** Individuals Individuals Individuals Individuals Individuals Other-Personsw/Disabilities 135 155 24 1,000 ~~' • ;=s ~ ~~`4 31 4% Individuals Individuals Individuals ~ , Individuals' ~ „~~n tuidual;r . - Accessibility Needs $ 0 0 0 " 0 ` ~ ADA Improvements _ ~~ 0.0% ` Projects Projects Projects Projects ~_j,~Pro}ectS Historic Preservation 1 0 0 3 `; t~ 1 s Residential Historic Preservation unit units units units ~ mutli•_ -33.3% '; Non-Residential Historic 0 0 2 2 ~?~ ~" ,- : max; Preservation Projects Projects Projects ~ Projects Proje s` . 100.0% a/is/o9 Attachment 1 29A-71 SUMMARY OF 5-YEAR ACCOMPLISHMENTS 2005-2009 .. Economic Development 2 3 7 ~0 ~ ~ ' Commercial Rehabilitation Businesses Businesses Businesses businesses ; B s,IQ~esse,,_ ~ ' 60 0~ Business Attraction/Retention 1 000 1000 685 ~ 1 000°x'; ~';~ ' L 5~ ~ 268 5%~ ~. Individuals Individuals Individuals , 1ndiVidual5~: , nd d a _ - 200 299 1,406 ° ` 2;000 ~{) ~ - 1ob Training 95.3% Individuals Individuals Individuals Indwicfuals ' in„"y,~dua s~' Planning & Administration Program Administration 1 1 1 5:- ~` 60 0% ~; Year Year Year 7 ears ea15 ~z , Fair Housing 1,433 902 865 7,000 ~ ~ 457% Hshlds Hshlds Hshlds Hshlds ~' Planning/Neighborhood Strategic 0 2 2 '4` '- ~~ ~' ` 100 0%-' PIanS Plans Plans Plans ', Pins ~~ ~,~ <~ . Other 108 Loan Repayment 1 1 N.A. 1 ~ ~`200.0% Payment Payment - ~ Payment ~Pa t, e~, ,~ :> : ` 1. Section 8 statistics for tracking purposes only. Section 8 Rental Assistance is not funded with HUD CPD funding. 2. "Actuals" are Santa Ana residents only-does not include regional efforts supported with HOPWA funds. 3. Goals and accomplishments are included in housing goals/accomplishments. 4. Includes Short-term Rent/Utility Assistance, Transitional Housing and Tenant Based Rental Assistance. 5. Sidewalk improvements are typically undertaken with street improvement projects. 6. Accomplishment represents all Low/Mod residents residing in the City's CDBG-eligible area. 7. Services funded with HOPWA and are Countywide 8. See ADA Improvements under Public Facility Improvements. *** Accomplishments included in Homeless Supportive Services totals -Mental Health Association of OC treats mentally ill chroinically homeless. a/is/os 4 Attachment 1 29A-72 CITY OF SANTA ANA 2009-2010 ANNUAL AcnON Ptah ATTACHMENT 2 POTENTIAL RESOURCES AVA v~ fBLE FOR HOUSING AND COMMUNI: r ~Q VELOPMENT ~~ h ; '` 7n Y : { .1.,. 3 ~ ri . Yi ~a ^; ~~ };t ~~ ~ ~ 1 h .~ ~ r G h L^; ^ ~f~~: ~Q f ~~~ f~ -~ ~4'r .~, . a,iso9 29A-73 Attachment 2 C/TYOF SANTA ANA 2009-2010 ANNUAL ArnoN PLAN ATTACHMENT 2 POTENTIAL RESOURCES AVAILABLE FOR HOUSING & COMMUNITY DEVELOPMENT 2009-2010 ~~ •i ~ s FEDERAL RESOURCES: This is an entitlement program that is awarded to 'a Social Services Community Development Block the City on a formula basis: The objectives are to ; '' ~ Section 108 Loan ~ Grant (CDBG) fund housing activities and expand economic ~>~, Repayments opportunities: Projects must meet one of three- ' Public Facilities $6,818; national objectives`. benefit low- and mora'- , -, Improvements (Pius P~ am ~y e~,e ix repo income persons; aid in the prevention, t' ~,:x. bode Enforcement ~,nds~ elimination of slums or bli ht; or meei~`o her g ^ HrstGric Preservation ,~~.~'" urgent needs „:;~>:-. ~,~ ^ Admri`;& Planning .~. ~.~~~ Grant program for housing to expand the supply , ~'' .~ ~ ' Multi-Family HOME Investment Partnership (HOME) Program , ~ of decent, safe, and sanitary~a ordable housing: ~ ~- Ac uisition/Rehabilitation q HOME is designed as a partne st1J rogram ~~~`u~~ b h f d l ' Single-Family Moderate $Z',36~,6 etween t e era , state, and loca e ~ ' overnments n n rofit and for- rofit h sin Rehabilitation. (Pius Pro~~an, mco„ri,e &..r~. ainmey - '~ entities to finance; burltiJr ehabilitateaod manage ^ CHDO Assistance , housing for loweincomeoersandrenter's_. ' Program Administration Emergency Shelter Grant ~.~~~` ,` r. Annual grant funds are all~c ,ted;;on a formula basis Funds are intended to'assist with tFie Homelessness Prevention $3 ~~? provr~ron o~shelter and social services for the ' Essential Services ' ~ --~,_, ~ { lus repro ram e ~ h~omele~~, ,- ~-' ~ ~ ~ Operating Expenses p g m . , ~~, ~ :. -~ w:~,, Housing Opportunities for c ~s''• y is- 'n Funds areahocated to Sarita Ana on behalf of all : Persons with AIDS (HOPWA) 'c~Y ~ . , • `~'~' ' urisdretions in OFange ~ounfy. Funds are made ~ ~ ^ Rental Assistance (plus program income & reprogrammed funds) • ~ ~~ava,rl~ble countywide fox~upportive social .: ^ Supportive Social Services r '~~ $1,402,000 ~ ~s ~~ ~, . ,. services, affordable housing development, & ~~, ^ Program Administration lu_s re ro ra : m ~u>3d (p p ., g. 171. .?dux .. ~ ~m rental assistance ,~, _., . American Dream Downpaymen~~, - .~ Initiative (ADDIS . iF~inds for fir.;t-time homebuyer assistance and ^ Down payment and closing ~. ; ' rest-time homebuyer training cost assistance a , $0 ~ '~ ~ Workforce Investment funds are used to assist K;,~r~ Workforce Investment Acts ~`~ x~ 'economically disadvantaged Santa Ana youths ^ Vocational Training ~z ~~ ~ and unskilled adults with basic work skills and ~" ''~ ` $3 350 000 vocational training in order to obtain productive ^ On-the Job Training ^ , ' employment opportunities. The Workforce ESL and GED Preparation Investment resources serve approximately 1,000 Courses residents DRAFr4/15/09 /~ ~~~~~ Attachment 2 GTY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN '• '+ ~ • Rental assistance program that provides a subsidy to very low-income families, individuals, seniors Housing Choice Vouchers and the disabled. Participants pay 30% of their adjusted income toward rent. The Santa Ana ^ . Rental Assistance $25,170,000 Housing Authority pays the balance of rent to property owners, and administers the program - 2,500 vouchers Program encourages the investment of private capital for the creation of affordable rental _ '." ~ New Construction Low Income Housing Tax Credit housing for low-income households. Tax credits ~ , ^ Housing Rehabilitation (LIHTC) .. are available to individuals and corporations wha ~ ^ Acquisition invest in such projects ~ J>' `~ ~~ ,, i, ~+~~ "~'~ob Training ~T~: Empowerment Zone ~ ~ '' A flexible funding source available to address the ' Education ~ ~~: lf H i needs of City residents with Incomes at or below . erv ces ea $0 poverty level. ~ f?°. ' Smalf Btsmess Loans ~ (Continue to use prior year funds.) ~' ^ Housing Rehabilitation ~' ;~ ;~z ~ •~ ^ Youth Activities STATE RESOURCES ~" ~ '% ~ California Department of `,' Housing & Community Low interest lo~~ns for tftc~developmr~nt`of Development: Pre-development :, ; affordable housing with'~aan~~rof±t agr~ncie ^ Predevelopment Loans Loan Program g ,~ ~'~ ~- California Department of _?~ ~ "` " Housing & Community >`' ~ .3-~~ ~. ^ First-time Homebuyer Development: CaIHOME - +~ ~ Financ~n~ for housing programs Assistance Program :,,,..,.. ^ Ownership and Rental '; - ~ housing projects $900,000 '' ' ' CITY OF SANTA ANA RESOURCES ~ -~' ~ Funds received from increased property taxes ^ Residential Rehab. Loans Santa Ana Redevelopnient~ generated by property improvements sponsored ' ^ Replacement Housing Agency Low Iricotne Housing by the Agency s six redevelopment project areas. Set-Aside Fund Twenty percent (20%) of these property tax funds ~ Neighborhood ~ must be set aside for the development, Improvement Programs $14,000,000 =~ preservation, or rehabilitation of affordable ' Neighborhood Capital 's ;housing Projects The City allows an increase in density to Density Bonus ~ "developers who set-aside at least 25% of their ^ Density Bonus ~ project to low- and moderate-income persons The Community Development Agency and Tax Exempt Bonds Housing Authority have the authority to issue tax- ^ Housing Development exempt bonds. Bond proceeds are used to develop affordable housing If available and appropriate, City or City/Agency Owned Land Redevelopment Agency owned land might be ^ Housing made available. Attachment 2 29A2 ~~ oa/is/o9 CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN • ~ • , i ' • PRIVATE RESOURCES 1: Community Home Buyer Program -Fixed rate - mortgages 2. Community Home Improvement Mortgage ^ Homebuyer Assistance Program -Mortgages for both purchase and ^ Homebuyer Federal National Mortgage rehabilitation of a home Assistance/Rehab Assoc. (Fannie Mae) 3. Fannie Neighbor- Under served low-income ^ Expand Home Ownership minorities are eligible for low down-payment .~, for Minorities mortgages for the purchase of single family r; homes , y~- ': California Community R i stment Cor Nonprofit mortgage banking consortium that,,~;T< ools resources to reduce lender risk in fin pri ^ New Construction e nve p. g p ~~ Rehabilitation (CCRC) affordable housing <~~ Direct subsidies to nonprofit and fo ~p ofit ^ (~e~nt,Construction Federal Home Loan Bank developers, and public agencies f ordable ~~;_~ ^ Expa nd,Home Ownership Affordable Housing Program .low-income ownership and renta projects : o , for L'owcr,lncome Persons Orange County Affordable ~~ ~~r• Nonprofit lender consortiu ^ Construcf~on Financing Housing Clearinghouse ~ ;,~,, ^ Permanent Financing Y zxk, r~ ~ 5~°•. ~; ~~ ~~ ~,; >;. `.~:, ~3 i~: ~: t. ,' s~:.~ a ~ .r ~3 ~ ., ~ ' ~ ~~ "~ - : z ,a e r ~ N ~ f; r t r~,> ; ~~ ' -~ f DRAFr4/15/09 ~ 9A3 7 ~ Attachment 2 CITY OF SANTA ANA 2009-2010 ANNUAL ACTION PLAN ATTACHMENT 3 oRa.Fra/is/o9 Attachment 3 29A-77 Grantee Name.: Santa Ana CPMP Version 2.0 Project Name: CDBG Admin = 09. Description: IRIS Project #: UOG Code: CA63342 SANTA ANA CDBG program oversight and coordination. Includes such tasks as.project/subgrantee monitoring; preparation of environmental reviews, regular HUD reports, annual action, plan and year-end performance reports. Location: ~~~ *~ , _r ' Pr;~onty=.Need ~atego-,y; , ~ 4.' }; 20 Civic Center Plaza Santa Ana - CA 92701 Select One' Planning/Administration ~ Explanation; Expected Completion Date: Activity needed to ensure appropriate oversight and coordination of federal funds subject to the Con Plan: 6/30/2010 Objective Category Decent Housing Suitable Living Environment Economic Opportunity a , s ~` ~,,, 5 ec ~ Ub~~"'~` ~• es_ : ',- ~;<~ ,, .~ ~~~ ~ ,~;~, P- ~.Y v._ Outcome Categories 1 ~ ^ Availability/Accessibility ^ 2 ~ Affordability ^ Sustainability 3 ~ Accompl. Type: ~ Proposed NA Accompl. Type: ~ ~ ++ Underway - C ~ ~ Complete t Accompl. Type: ~ Accompl. Type: ~ ++ ~ V Cl ~. ~O L d v Accompl. Type: ~ Accompl. Type: ~ U Q Pro posed Outcome Performance Measure Actual Outcome Maintain prgm admin @ a level to Review HUD monitoring reports ensure no HUD findings 21A General Program Administration 570.206 ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ ~ CDBG ~ Proposed Amt. $ 665,000 Fund Source: ~ L 10 f0 L G1 L a Project (1) ~~~_~~ Attachment 3 Grantee Name: Santa Ana CPMP Version 2.0 Project Name: Clt of Santa Ana' CDA =Multi-Family Housing Rehab Description: IDIS Project #: UOG Code: CA63342 SANTA ANA CDBG funding to assist property owners in rehabilitating their rental property., The. purpose of the program is to stabilize and improve multi-family rental housing stock in the city. One area of criteria for eligibility is that property owners must agree affordability. Program qualifies as for Low/Moderate-Housing per 24 CFR 570.208 (a) (3). Location: `+ ' `. ~ ~ ~':~. ~ . ~ Priori ~: ~ .~ ~ ty.,l~eed Category:. 4• Citywide Select One: Rental Housing ~ Explanation: Expected Completion Date• Activity will help preserve the existing supply of rental housing. 6/30/2010 Objective Category Decent Housing Q Suitable Living Environment Economic Opportunity • ~ r,-_~~H ~ r ~; ,~ ~'~~~ : • .Specific bjectives • i ; x .''it ~ ~ ~~ ,~ Outcome Categories 1 Improve the quality of affordable rental housing ~ ^ Availability/Accessibility ^ Aff rdabili 2 ~ o ty ^~ Sustainability 3 ~ N 10 Housing Units ~ Proposed 20 Accompl. Type: ~ _ Underway ~ ~ Complete N Ol People ~ Accompl. Type: ~ U a~ a 'o ~ L fl v Accompl. Type: ~ Accompl. Type: ~ U a Pro posed Outcome Performance Measure Actual Outcome At least 40% of rehab loari to be Review work write-up and calculate expended on code related items amount for code work 146 Rehab; Multi-Unit Residential 570.202 ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ ~ CDBG ~ Proposed Amt. $ 125,000. Fund Source: ~ L L 0 L a Project (2) 4 Attachment 3 29A-79 Grantee Name: Santa Ana CPMP Version 2.0 Project Name: Cit of Santa. Ana CDA -Nei hborhood' S ' onsored Projects Description: IDIS Project #: UG1G Code: CA63342 SANTA ANA .CDBG funds to provide capital improvements within CDBG-eligible areas of the city::.. Program qualifies as for . Low/Moderate-Area Benefit per 24 CFR 570.208 (a) (1). Location: ;4 Prionty.iVeed"~`Categgry, ` ~ c,;~. "::' Location: To be determined -will ~ - be located in L/M area. Select One' Public Facilities ~ Explanation: Expected Completion Date• Activity will help revitalize deteriorated or deteriorating neighborhoods,. 6/30/2010 Objective Category Decent Housing . Suitable Living Environment Q Economic Opportunity ~-y~,~~ -~ ' r. Specifi~'ObjecY~ves ~ ~ ,fir, ~'~ Outcome Categories Improve quality /increase quantity of neighborhood facilities for low-income persons ~ 1 ^ Availability/Accessibility ^ Aff d bili 2 Improve quality /increase quantity of public improvements for lower income persons ~ or a ty Q Sustainability 3 ~ ~ 11 Public Facilities ~ Proposed 1 Accompl. Type: ~ ++ C Underway ~ 47 Complete s Accompl. Type: ~ Accompl. Type: ~ ~ y V N C. ~O d v Accompl. Type: ~ Accompl. Type: ~ V Q Pro posed Outcome Performance Measure Actual Outcome Improve the viability of L/M Eliminate deteriorated facility or neighborhoods by eliminating 1 or infrastructure in response to residents' more substandard or deteriorated input. infrastructure components 03 Public Facilities and Improvements (General) 570.201(c) ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ ~ CDBG ~ Proposed Amt. $ 50,000 Fund Source: ~ L L d1 0 L a Project (3) ~~ X5_80 Attachment 3 Grantee Name: Santa Ana CPMP Version 2.0 Project Name: CI of Santa Ana: CDA -Single Family Housin Rehab Description: IDIS Project #: UOG Code: CA63342 SANTA ANA CDBG funds to helping rehabilitate and repair homes of L/M .low-income homeowners. Refiabilitation-work includes carpentry, electrical improvements, plumbing, weatherizing, roofing, painting,-and other tasks. Program qualifies as for Low/Moderate-Housing, per 24 CFR 570.208 (a) (3). Location: ~ Prigrrty_N.eed;Catecjo~y, ,,. ~ ~ , Citywide Select one: - Owner Occupied Housing ~ Explanation: Expected Completion Date: Activity-will preserve the existing supply of ownership housing. 6/30/2010... .Objective Category Decent Housing ..Suitable Living Environment Economic Opportunity ,y ~ <<y *~~~~~**~ ~ ~ ~ ,,, ~' ~~~ : Specrfid tlb~ect~ves ,~ E ~ ~ ~?~ ?,~,`~ ` Outcome Categories 1 Improve the quality of owner housing ~ ^ Availability/Accessibility ^ 2 Affordability Q Sustainability 3 ~ 10 Housing Units ~ Proposed 15 Accompl. Type: ~ rn ~+-' Underway C ~ ~ Complete ~ Accompl. Type: ~ Accompl. Type: ~ V - a~ a ~o ~ d v Accompl. Type: ~ Accompl. Type: ~ U Q Pro posed Outcome Performance Measure Actual Outcome At least 40% of rehab loan to be Review work write-up and calculate expended on code related items amount for code. work 14A Rehab; Single-Unit Residential 570.202 ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ ~ CDBG ~ Proposed Amt. $ 90,000- Fund Source: ~ L (0 10 L G1 0 L a Project (4) 29A_~ ~ Attachment 3 Grantee Name: Santa Ana CPMP Version 2.0 ~ - - Project Name: Cit of Santa'Ana PBA -: Code Enforcement Description:. IDIS Project #: uoG Code: CA63342 SANTA ANA CDBG funds to provide professional inspections to ensure compliance with the Municipal Code in order to maintain safety standards in, target areas of the city, and to provide the necessaryJink to the City's multi-family rehabilitation, programs Program qualifies as for Low/Moderate-Area Benefit per 24 CFR 570.208 (a) (1). Location: ` ~ -f~~`~ ~~:~=~ Priori :Need Gate o - `` ty~ 9 rY -,ua~~;i Low/Mod Areas -see Census' Tract/Block Group in "Explanation" Select One' Other Explanation: L.ow/Mod Areas: County: 06059: CT:099249 BG:1,2 / CT:099248 BG:1,2 / CT'_099247 BG:1,2 / CT:099202 , BG:2,3 / CTi089105 BG1,2,3 / CT:089104 BG:1,3 / CT:089004 BG:1,2,3 /,CT:089001 BG2,3,4 / CT:089104 ti E t d C l D t BG:3 / CTc088903 BG:3 / CT:076000 BG2 / CT;075701 BG:2,3 / Ci:075504 BG1 / CT:075404 BG:1,3 / xpec e omp e on a e: CT:075403 BG:2,3 / CT:075302 BG:1,2,3 / CT:075301 BG1;4 / Cri075202 BG1,2 / CT:075201 BG:1,2 / 6 3O 2OlO CTc075100 BG:1,2,4 / CT:074004 BGc1;2 / CT:075003 BG1;2,3 / CT:075002 BG:1,2,3 / CT:074902 BG:1,2,3 / / / CT:074806 BG:1,2 / CT:074805 BG:1,2 / CT:074803 BG:1,2,3 J CT:074802 BG:1,2,3 / CT:074801 BG1,2,3 Objective Category cY:o7n7o2 isGa,z / Cr:074701 BG:1,2,3 / CT:074502 BG1,2 / CT:074501 BG1,2,3,4 / CT:074407 BG:1 / O Decent Housing CT:074406 BG:1,2,3 / CT:074405 BG:1,2,3,4 / CT:074403 BG;1,2 / CT:074300 BG 1,2 / CT;074200 BG:1,2;3,4 / CT:074111 BG3 / C7:074109 BG1,2 / CT:074108 BG:1,2 / CT:074106 eG:1,3 / Ci:074103 BG:2,3 / OO Suitable Living Environment crco741oz Bc: i,z;3 / CT:074006 BG:1,2;3 / CT:074005 BG 1,2,3 / CT:74004: BG:1;2 / CT:074003 BG:1 / CT:074003 BG:1 / CT:074901 BG 1,2,3,4,5 / CT:074602 BG:1,2,3,4,5 / CT:074601 BG:1,2,3,4,5 / CT;089102 n i O u i O E RG:2 CT:075405 BG:1 CT 075301 BG:3 co om c pport n ty : a ` ~ ` Gc ~ 'Speci~c Ob~ectiveis t ~ :.~ `'~~'g_ ~ '~ ~.u Outcorne Categories Improve the quality of affordable rental housing • 1 ^ Availability/Accessibility ^ Aff d bili 2 Improve the quality of owner housing or a ty ^~ Sustainability 3 • 10 Housing Units • Proposed 4,500 Accompl. Type: • N +~ Underway . _ ~ ~ Complete s Accompl. Type: • Accompl. Type: • ++ ~ u y fl. ~O L d u Accompl. Type: • Accompl. Type: • u Q Pro posed Outcome Performance Measure Actual Outcome Bring 12,500 owner &-10,000 Compare # of non-code. complient units rental units up to code 15 Code Enforcement 570.202(c) • Matrix Codes • Matrix Codes • Matrix Codes • Matrix Codes • Matrix Codes • ~ CDBG • Proposed Amt. $1,700,000 Fund Source: • L f0 L i. Q. Project (5) 29A-82 Attachment 3 Grantee Name: Santa Ana CPMP Version 2.0 Project Name: PUh~IC SerVIC25 Description: IRIS Project #: UOG Code: CA63342 SANTA ANA CDBG furids will be used to provide a range of programs aimed at assisting Low- and Moderate-Income persons. Location: Pnoiity~,lye d ,Category .1 Citywide with some programs limited, o Low/Mod Census Tracts Select one' Public Services ~ Block Groups Explanation: Expected Completion Date: Activity will provide quality social services for Low- and Moderate-Income persons. ..6/30%2010 Objective Category Decent Housing Q Suitable Living Environment Economic Opportunity - =-°^ ,~ ; ~ 5~ecif c Objectifies ~ ~~:, F ,. w h`s~~` Outcome Categories 1 Improve the services for low/mod income persons ~ Q Availability/Accessibility ^ 2 _ Affordability ^ Sustainability 3 ~ Ol People ~ Proposed 5,157 Accompl. Type: ~ ~ ~+~+ Underway ~ ~ Complete ~ Accompl. Type: ~ Accompl. Type: ~ V d a 'o ~ d v Accompl. Type: ~ Accompl. Type: ~. U Q Pro posed Outcome Performance Measure Actual Outcome Link individuals to services sought On-site monitoring & measure goal accomplishment 05 Public Services (General) 570.201(e) ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ ~ CDBG ~ Proposed Amt. $1,000,000 Fund Source: ~ L 10 Qif } Id L L a Project (6) CPMP 29A-83 Grantee Name: Santa Ana CPMP Version 2.0 Project Name: Ci of Santa Ana PWA -Adams Park Description: IDIS Project #: UUG Code: CA63342 SANTA ANA CDBG funds to undertake improvements at a neighborhood park. Improvements may include security lighting,. playground maintenance and parking lot improvements, etc. Program qualifies as for Low/Moderate-Area Benefit per 24 CFR 570.208 (a} '(1). Location: ,,, - tPriontyNe~d;Gategory`, Low- &Moderate-Income areas of City (2302 S. Raitt): CT:0741.09 Select One' Public Facilities ~ BG:2 (72.3% UM) Explanation: Expected Completion Date: Activity needed to improve safety and livability of neighborhoods. 6/30/2010 Objective Category Decent Housing . Suitable Living Environment Economic Opportunity ,;. ~ ~:; Q~- `Specific Qbl Gtrves ~~~'- Y 1 z*S', Outcome Categories 1 Improve quality /increase quantity of neighborhood facilities for low-income persons ~ ^ Availability/Accessibility 2 ~ ^ Affordability Q Sustainability 3 ~ it Public Facilities ~ Proposed 1 Accompl. Type: ~ +~ Underway - C N Complete . N Accompl. Type: ~ Accompl. Type: ~ V a~ a ~o ~ ~ u Accompl. Type: ~ Accompl. Type: ~ V a Pro posed Outcome Performance Measure Actual Outcome Increase per capita spending on Compare 05/06 per capital spending on park/recreation facilities park/rec facilities vv/ FY 09/10 amount 03F Parks, Recreational Facilities 570.201(c} ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ L (0 L Q L a Project (7) 29"-~A Attachment 3 Grantee Name: Santa Ana CPMP Version 2.0 Project Name: Cit of',Santa 'Ana PWA -: Street Improvements ' Description: IDIS Project #: UOG Code: CA63342 SANTA ANA CDBG funds to make streetrimprovements in the CDBG eligible areas of the City.: Program qualifies.as for. Low/Moderate-Area'Benefit per 24 CFR 570".208 (a) (1). Location:, ~ __~ r'~ Priority~IVeed~Cat~gor}~,,~E_ %,:M, ~: =~`~' Location:: CT:0748.02 BG 2;3 CT:0748.05 BG:1, 2; CT;0748.06 Select One' ~ Public Facilities ~ BG:1,2 (84.4% L/M) ~ - Explanation: Expected Completion Date• Activity needed to improve safety and livability of neighborhods. Three projects:. 6/30/2010 Center St from McFadden to Monte Vista, Sullivan from 1st to McFadden, and Monte Vi ta f m S lliva t t R itt 0 jective Category ro s u n o a . Decent Housing. Q Suitable Living Environment` Economic Opportunity :,;, , ~,~~ ~ : ~ ~, - r ~ , . `' g ecifc Ob'ectroes - ~° t *r~ '``~'~` ~ Outcome Categories Improve quality /increase quantity of public improvements for lower income persons ~ 1 ^ Availability/Accessibility ^ 2 - Affordability Q Sustainability 3 ~ 01 People ~ Proposed 16,819 Accompl. Type: ~ ~ +' Underway C ~ ~ - Complete ~ Accompl. Type: ~ Accompl. Type: ~ U N fl. ~O L d v Accompl. Type: ~ Accompl. Type: ~ U Q Pro posed Outcome Performance Measure Actual Outcome Eliminate 1 condition that Ensure improvements are constructed contributes to neighborhood blight to an adequate standard to eliminate blighting condition for at least 10 years 03K Street Improvements 570.201(c) ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ ~ CDBG ~ Proposed Amt. $2,917,800 Fund Source: ~ L m ar ~o L 01 L a Project (8) 290 ~~ Attachment 3 CPMP Version 2.0 Grantee Name: Santa p-na Project Name: Fair Housing Services `` Description: IDIS Project #: UOG Code: CA63342 SANTA ANA Program will provide fair housing outreach; educatioh, and mediation services: Furids will also be used to evaluate, investigate, and if necessary, procecute violations of fair housing lave and other. barriers tii fair housing. Location: ~. P~`3vc ity:,Nd CaCeg„orq .„ .. .Citywide Select One' Planning/Administration ~ Explanation: Expected Completion Date' Activity needed to ensure Santa Ana residents have access to fair housing counseling 6/30/2010 and enforcement services, and to eliminate impediments to fair housing. Objective Category Decent Housing Q Suitable Living Environment Q Economic Opportunity .~ _. .,, ~ ~ , ., ..~~ ° .w ~ ~ . ~ - :~ s ,.~ ~ ~ , Speufic l~p1e¢tfes Outcome Categories 1 Improve access to affordable owner housing for minorities ~ ^ Availability/Accessibility ^ Af dabili 2 Improve access to affordable rental housing ~ for ty ^ Sustainability 3 ~ Ol People ~ Proposed 850 Accompl. Type: ~ ~ ~+' C Underway ~ ~ Complete t Accompl. Type: ~ Accompl. Type: ~ ~+ ul U Gl Q ~® aL ~ cy Accompl. Type: ~ Accompl. Type: ~ V Q Pro posed Outcome Performance Measure Actual Outcome Provide fair housing services Number of persons served 21D Fair Housing Activities (subject to 20% Admin cap) 570.20 ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ ~ CDBG ~ Proposed Amt. $ 72,200 Fund Source: ~ L 10 d 10 L d1 L a Project (9) 291-86 Attachment 3 Grantee Name: Santa Ana CPMP Version 2.0. Project Name: HOME Admin 09 ' Description: IDIS Project #: UOG Code: CA63342 SANTA ANA HOME funds to support program oversight and coordination Lo ation ,. , Priori Ne d Cate o ~ ' `~ ' ~~ ' ~ ~~ ' r h! . c ; e . , ~ ,~-, Y 9 20 Civic Center Plaza, Santa Ana CA Select One: _ Planning/Administration ~ Explanation: Expected Completion Date• Activity needed to ensure appropriate oversight and coordination of federal funds 6/30/2010 subject Eo the Con Plan. Objective Category Decent Housing Suitable Living Environment: Economic Opportunity .~ ,. ~ ' *~ ~.,,~ ' '~= Spe~c~if~c Objectives ~ - a- Y z~ ' ~..:'- Outcome Categories. 1 ~ ^ AvailabilityJAccessibility ^ 2 _ Affordability ^ Sustainability 3 ~ Accompl. Type: ~ Proposed NA Accompl. Type: ~ N +' Underway ~ O Complete ~ = . ~ Accom I T e ~ P • YP : Accom I T ~ P • YPe~ *+ vl U Gl Q. ~O L d V Accompl. Type: ~ Accompl. Type: ~ V Q Pro posed Outcome Performance Measure Actual Outcome Maintain prgm admin @ a level to Review HUD monitoring reports.` ensure no HUD findings 21H HOME Admin/Planning Costs of PJ (subject to 5% cap ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ ~ HOME ~ Proposed Amt. $ 236,760 Fund Source: ~ Project (10) 12 Attachment 3 29A-87 CPMP Version 2.0 Grantee Name: Santa Ana Project Name: --- HOME CHDO Pro'eCt - 09 Description: IDIS Project #: UoG Code: CA63342 SANTA ANA HOME funds to undertake acquisition and/or rehabilitation assistance. Project_to be determined; however, project ' partner will be a community housing development coorporation (CHDO). Location: PcivntyrNeed ~~"teg~ry. ~ _ .NZ, "~ 3 . - ~ ~~' ~~~ ~ ~ ~ ~ To be determined Select One: Rental Housing Explanation: Expected Completion Date• Activity will help the City expand the supply of rental housing that is affordable to lower income households. 6/30/2010 Objec4ve Category 0 Decent Housing Suitable Living Environment. Economic Opportunity - ~ ;:Spec fie ObjPCti~~ s;~, ' "~~ ~ '. ,: "%':~ LH *a1" `4 .. Outcome Categories 1 Increase the supply of affordable rental housing ~ ^ Availability/Accessibility rd bility ^~ Aff 2 Improve the quality of affordable rental housing ~ a o ^ Sustainability 3 Improve access to affordable rental housing ~ 10 Housing Units ~ Proposed 5 Accompl. Type: ~ Underway ~ d Complete s Accompl. Type: ~ Accompl. Type: ~ u ~ Gl Q. •O L O, v Accompl. Type: ~ Accompl. Type: ~ V Q Pro osed Outcome- Performance Measure Actual Outcome At least 40% of rehab loan to be Review work write-up and calculate expended on code related items amount for code work 14B Rehab; Multi-Unit Residential 570.202 ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ ~ HOME ~ Proposed Amt. $ 355,142 Fund Source: ~ Project (11) 293 ~~ Attachment 3 Grantee Name: Santa Ana CPMP Version 2.0 Project Name: HOME Multi-Famil `Acquisition or Rehab Description: IDIS Project #: UoG Code: CA63342 SANTA ANA HOME funds to undertake acquisition and/or rehabilitation assistance. Project to be determined; however; project partner may be a community housing development coorporation (CHDO). Location: `'' "` PVrion~y N~}~PC~Ca}Leggryt' ~ ~' , Citywide Select one: Rental Housing ~ Explanation: Expected Completion Date- Activity .will help the City expand the supply of rental housing. that is affordable. to lower income households. 6/30/2010 Objective Category Decent Housing Q Suitable Living Environment Q Economic Opportunity , ;~~~ ~ ~~~;~ 'S ecxc- Ub tiv e ` ' ;'~; 'f ~ ~'~~ ~ r~'~ ' ~ ~.. , p „ l c r~ , es. . ; y .t Outcome Categories 1 Increase the supply of affordable rental housing ~ ^ Availability/Accessibility ^~ Aff d bili 2 Improve the quality of affordable rental housing ~ or a ty ^ Sustainability 3 Improve access to affordable rental housing ~ 10 Housing Units ~ Proposed 10 Accompl. Type: ~ H ++ Underway C ~ ~ Complete = - Accompl. Type: ~ Accompl. Type: ~ V N C7 Q. ~O L d ~ Accompl. Type: ~ Accompl. Type: ~ V Q Pro posed Outcome Performance Measure Actual Outcome At least 40% of rehab loan to be Review work write-up and calculate.' expended on code related items amount for code work 146 Rehab; Multi-Unit Residential 570.202 ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Project (12) 14 Attachment 3 29A-89 Grantee Name: Santa Ana CPMP Version 2.0 ' Project Name: HOME Single Family Housing- Rehab ' Description: IRIS Project #: uOG Code: CA63342 SANTA ANA HOME funds for rehabilitation'of housing- occupied and owned. by lower income households: Funds will be used to correct code deficiencies end deferred maintenance: Location: ~.,__ <'~ ~ - a.$' - Pr~ority~Need Category.°-. = a ~-:' Citywide - Select one: Owner Occupied Housing ~ Explanation: Expected Completion Date• Activity will help the City maintain the stock of owner-occupied housing that is 6/30/2010 affordable to lower income households. Objective Category Decent Housing ~ Suitable Living Environment EconomicOpportunity i; . ~ ~ ;~ ~', ~:~ `specific Objec£ives .~"~ ~' > ..,``~~ ' Outcome Categories Improve the quality of owner housing ~ 1 ^ Availability/Accessibility Q A o ~ ff rdability ^ Susfainability 3 ~ 10 Housing Units ~ Proposed 20 Accompl. Type: ~ ~ +' Underway C d Complete y Accompl. Type: ~ Accompl. Type: ~ U d Q. ~O ~ v Accompl. Type: ~ Accompl. Type: ~ V Q Pro posed Outcome Performance Measure Actual Outcome At least 40% of rehab loan to be Review work write-up and calculate expended on code related items amount for code work 14A Rehab; Single-Unit Residential 570.202 ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Mab-ix Codes ~ Matrix Codes ~ N HOME ~ Proposed Amt. $ 450,000. Fund Source: ~ i Actual Amount ~ Fund Source: ~ Fund Source: ~ ~ Accompl. Type: ~ Accompl. Type: ~ D L' d Accompl. Type: ~ Accompl. Type: ~ Project (13) ^^~5 90 Attachment 3 Grantee Name: Santa Ana CPMP Version 2.0 Project Name: HOPWA`Admin "= 09 Description: IDIS Project #: UoG Code: CA63342 SANTA ANA Federal funds to be used to. coordinate and oversee Housing Opportunities for Persons with AIDS funds that are allocated to the City on behalf of the entire County. Location: - ~" Prior~ty~' eed`Cat o'`= "' ~"`~~~ ~~' Countywide - - - Select One' Flanning(Administration Explanation: Expected Completion Date• Activity needed to ensure appropriate oversight and coordination. of federal funds 6/30/2010 subject to the Con Plan. Objective Category- Q Decent Housing Suitable Living Environment Economic Opportunity rs .,~ ,~,;,, _ ~;, S} ec~f~c~Qble~tives,~;u~ '~,~ ,z¢,: ~. Outcome Categories 1 ~ ^ Availabilitq/Accessibility ^ Aff d bili 2 _ or a ty ^ Sustainability 3 ~ Accompl. Type: ~ Proposed NA Accompl. Type: ~ y +' Underway C ~ ~ Complete y Accompl. Type: ~ Accompl. Type: ~ v - +v a 'o ~ d V Accompl. Type: ~ Accompl. Type: ~ Q Pro osed Outcome Performance Measure Actual Outcome Maintain prgm admin @ a level to Review HUD monitoring reports. ensure no HUD findings 316 Administration -grantee ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ .Matrix Codes ~ ~ HOPWA ~ Proposed Amt. $ 42,060 Fund Source: ~ Project (14) ~ 9~6 ~ ~ Attachment 3 Grantee Name: Santa Ana CPMP Version 2.0 Project Name: HO.PWA Su ortive Services - 09 Description: IRIS Project #: UOG Code: CA63342 SANTA ANA HOPWA funds to provide a variety of services for indvidualswith HIV and AIDS.on a county-wide basis. Services include emergency housing. assistance', transitional housing, detox services, case management. and housing placement: Location: ~~ r ;~~~~ ;~~ , ,s P~ioFr;ty~.Need Category Countywide Select One' Homeless/HN/AIDS ~ Explanation: Expected Completion Date: AcEivity will help the City provide quality services and housing opportunities for 6/30/2010 - individuals with HIV/AIDS. .Objective Category Decent Housing Suitable Living Environment Q Economic Opportunity s, , .~ ~ ~ - ~ - ~..o~,~.;~..~%.` . A'~fS~ecific`Ob~e~tt~ ~5 "'~,~w ,,~. Outcome Categories Increase range of housing options & related services for persons w/ special needs ~ 1 Availability/Accessibility ^ 2 ~ Affordability ^ Sustainability 3 ~ ~ Accompl. Type: ~ Proposed .900 Accompl. Type: ~ ~ +~ C Underway ~ ~ Complete H Accompl. Type: ~ Accompl. Type: ~ V 4l >?. ~® ~ ~ v Accompl. Type: ~ Accompl. Type: ~ V Q Pro posed Outcome Performance Measure Actual Outcome 50% of individuals/families: Verify % of individuals/families that are receiving assistance will be linked. assisted vv/ HOPWA and -are referred to to one or more additional support additional services services and/or appropriate housing 31E Supportive service ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ ~ HOPWA ~ Proposed Amt. $ 859,940 Fund Source: ~ Grantee Name: Santa Ana CPMP Version 2.0 Project Name: HOPWA,- Tenant Based Rental Assistance 09 Description: IRIS Project #: UOG Code: CA63342 SANTA ANA HOPWA funds to support rent subsidy program for individuals/families with HIV/AIDS. Location: .~ _ . . `'' ' <, Priiority:Need Category` ~ ` '`" ,~~~ countywide Select one' Homeless/HIV/AIDS ~ Explanation: Expected Completion Date: Activity will help the City provide quality services and housing opportunities for 6/30/2010 individuals with HIV/AIDS Objective Category Decent Housing Suitable Living Environment _ Economic Opportunity ~. . Specific~Objectives t' , s'~n µF„~~. Outcome Categories 1 Increase range of housing options & related services for persons w/ special needs ~ Q Availability/Accessibility ^ 2 ~: Affordability ^ Sustainability 3 ~ 01 People ~ Proposed 50 Accompt. Type: ~ ~ +~ C Underway ~ ~ Complete s Accompt. Type: ~ Accompt. Type: ~ ++ ; ~ U 41 Q ~O L d v Accompt. Type: ~ Accompt. Type: ~ U Q Pro posed Outcome Performance Measure Actual Outcome 50% of individuals/families Verify % of individuals/families that are receiving assistance will be linked. assisted w/ HOPWA and are referred to to one or more additional support additional services services and/or appropriate housing 31F Tenant.based rental assistance ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ ~ HOPWA ~ Proposed Amt. $ 500,000 Fund Source: ~ L Actual Amount t0 } Fund Source: ~ Fund Source: ~ ~ Accompt. Type: ~ Accompt. Type: ~ C1 O '' a Accompt. Type: ~ Accompt. Type: ~ Project (16) 18 Attachment 3 29A-93 Grantee Name: Santa Ana CPMP Version 2.0 Praject Name: Human Options - ESG09" Description: IDIS Project #: uoG Code: CA63342 SANTA ANA ESG funds to support emergency shelter for victims of domestic violence: A total of $18;000 has been allocated - $5K for essential services and $13K for shelter operations:. Location: ~`. L - P~idnt}tleec#~CaYe~o~~rx~`~ Citywide Select one: Homeless/HN/AIDS ~ Explanation: Expected Completion Date• Activity will assist homeless persons obtain appropriate housing. 6/30/2010 Objective Category Decent Housing Suitable Living Environment Economic Opportunity h `~~ ~ ' °i "? )S eci#'ic dti e tive } ~` _ "- w x ; p ~ ~ r., ; c Outcome Categories. 1 Increase the number of homeless persons moving into permanent housing ~ ^~ Availability/Accessibility ^ 2 Affordability ^ Sustainability 3 ~ 01 People ~ Proposed 21 Accompl. Type: ~ H ++ Underway ~ ~ Complete t Accompl. Type: ~ Accompl. Type: ~ *+ vl v - a~ a '® ~ d V Accompl. Type: ~ Aaompl. Type: ~ v Q Pro posed Outcome Performance Measure Actual Outcome 50% of individals seeking On-site monitoring & measure goal emergency shelter will be accomplishment transition to interim (transitional) 05 Public Services (General) 570.201(e) ~ Matrix Codes ~ 03T Operating Costs of Homeless/AIDS Patients Programs ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes - ~ ~ ESG ~ Proposed Amt. $ 5,000 Fund Source: ~ L Actual Amount ESG ~ Proposed Amt. $ 13,000 Fund Source: ~ Project (17) 299 w~ Attachment 3 Grantee Name: Santa Ana CPMP Version 2.0 Project Name: Interval House - ESG09 Description: IDIS Project #: UOG Code: CA63342 SANTA ANA ESG funds to support emergency shelter operations for victims of domestic violence. Location: ' P~iio~ity' Geed Categpry Citywide- Select One' Homeless/HIV/AIDS ~ ~ Explanation: Expected Completion Date• Activity will assist homeless persons obtain appropriate housing. 6/30/2010 Objective Category Q Decent Housing D Suitable Living Environment Economic Opportunity ~,: {~,~j ~~~ _ ;~ ~ Specific Objectives Outcome Categories Increase the number of homeless persons moving into permanent housing ~ 1 ^ Availability/Accessibility ^ 2 ~ Affordability _ ^ Sustainability 3 ~ 01 People ~ Proposed 81 Accompl. Type: ~ H +' C Underway ~ ~ ~ Complete ~ Accompl. Type: ~ Accompl. Type: ~ U a~ a ~o ~ d v Accompl. Type: ~ Accompl. Type: ~ Q Pro posed Outcome Performance Measure Actual Outcome 50% of individals seeking On-site monitoring & measure goal emergency shelter will be accomplishment transition to interim (transitional) housing 03T Operating Costs of Homeless/AIDS Patients Programs ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ ~ ESG ~ Proposed Amt. $ 20,500 Fund Source: ~ Project (18) 20 Attachment 3 29A-95 Grantee Name: Santa Ana CPMP Version 2.0 Project Name: Laura's' House - ESG09 Description: IRIS Project #: UOG Code: CA63342 SANTA ANA ESG funds to support emergency shelter for victims of domestic violence. Total grant is for $10500 for shelter operations. , Location: Priority ryeec~ (;a e, yr r ~ s, ''~ F 9 .Y Citywide - - SeleCt One' Homeless/HIV/AIDS Explanation: Expected Completion Date• Activity will assist homeless persons obtain appropriate. housing. 6/30/2010 Objective Category Q Decent Housing Q Suitable Living Environment ~ Economic Opportunity ~- ~ - ~ ~ ~ ~~~ ~~.~, ~_ "' SpecFfic ~~c i+~es . ~~ . ~~~ ~;, ~ '~~~ r~, Outcome Categories 1 Increase the number of homeless persons moving into permanent housing ~ Q Availability/Accessibility ^ 2 ~ Affordability ^ Sustainability 3 ~ 01 People ~ Proposed 17 Accompl. Type: ~ N +' Underway - C ~ ~ Complete 41 ~ Accom I T e: ~ P • YP Accom I T ~ P • YPe~ y U a~ a '® ~ d V Accompl. Type: ~ Accompl. Type: ~ V Q Pro posed Outcome Performance Measure - Actual Outcome 50% of individals seeking On-site monitoring & measure goal emergency shelter will be accomplishment transition to interim (transitional) housing 03T Operating Costs of Homeless/AIDS Patients Programs ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Project (19) ~ 9~1 ~ ~ Attachment 3 Grantee Name:. Santa Ana CPMP Version 2.0 Project Name: Legal'Aid = ESG09 - Description: IDIS Project #: - ~ UoG Code: CA63342 SANTA ANA ESG funds to support,legal assistance services for homeless individuals residing in Santa Ana-based homeless shelters. Funds will be used to pay for'attorney/paralegal staffing .(essential services). Location: - Priority Need CategoryY'~~ Citywide Select one' Homeless/HIV/AIDS ~ Explanation: Expected Completion Date• Activity vvill assist homeless persons obtain appropriate housing. 6/30/2010 Objective Category Decent Housing Suitable Living Environment Economic Opportunity ~ ~ r ::. a ; %fi~~,~, ?~ Specific Otijeetrves :,~ ~< ,~ x, a-4 .Outcome Categories 1 Increase the number of homeless persons moving into permanent housing ~- Availability/Accessibility Q 2 ~ Affordability ^ Sustainability 3 ~ 01 People ~ Proposed 55 Accompl. Type: ~ H +' C Underway ~ ~ Complete N Accompl. Type: ~ Accompl. Type: ~ U d Q. •O d v Accompl. Type: ~ Accompl. Type: ~ a Pro posed Outcome Performance Measure Actual Outcome 50% of iridividuals seeking On-site monitoring & measure goal services will be linked to desired accomplishment services. 05 Public Services (General) 570.201(e) ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ N ESG ~ Proposed Amt. $ 9,000 Fund Source: ~ Project (20) 22 Attachment 3 29A-97 Grantee Name: Santa Ana CPMP Version 2.0 Project Name: Mercy .House Center - ESG09 Description: IDIS Project #: uoG Code: CA63342 SANTA ANA homeless persons including the chronically- ESG funds will be used to provide a variety of supportive services for _ homeless. Services include food, clothing; assessment and- referrals. Total ESG grant is $35,000- $10,000-for essential services and $25,000 for. shelter operations: Location: - Priority'Need;Getegory_; Citywide . Select One: Homeless/HN/AIDS Explanation: Expected Completion Date• Activity will assist homeless persons obtain appropriate housing/services. 6/30/2010 Objective. Category Q Decent Housing _ Suitable Living Environment Economic Opportunity. _ ~ , ,, P I a ~ , ,, S ecific Oti'ectives", , • ,., , Outcome Categories 1 Increase the number of homeless persons moving into permanent housing ~ ^~ Availability/Accessibility ^ Aff bili d 2 End chronic homelessness ~ or a ty ^ Sustainability 3 ~ Accompl. Type: ~ Proposed 850 Accompl. Type: ~ ~ ++ Underway ~ 41 Complete ~ Accompl. Type: ~ Accompl. Type: ~ V d ~ ~O ~ gOj Accompl. Type: ~ Accompl. Type: ~ v Q Pro osed Outcome Performance Measure Actual Outcome 50% of all persons seeking On-site monitoring & measure goal services will be linked to 1 or accomplishment more additional support services and/or appropriate housing 05 Public Services (General) 570.201(e) ~ Matrix Codes ~ 03T Operating Costs of Homeless/AIDS Patients Programs ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Grantee Name: 'Santa Ana CPMP Version 2.0 Project Name: Merc House Armo ` -Progrem - ESG09 Description: IRIS Project #: UOG Code: CA63342 SANTA ANA ESG- funding to support seasonal emergency shelter for situational and chronic homeless.:Program u$es local armories during fall/winter months. Total ESG grant is:$22,500 - $10K for essential services and $Y2,500 for shelter operations. Location: Pi•~vr~Ly NmeedaCa,€egory~~°-'~ Citywide Select One: Homeless/HIV/AIDS ~ Explanation: Expected Completion Date• Activity will. assist homeless persons obtain appropriate. housing/services. 6/30/2010 Objective Category Decent Housing Suitable Living Environment Economic Opportunity s~ . ~ f g „ ° .~ °r5~ecific Objectiv s ' ~ ~ M` ` ' _- . ; ~ ~ , R ~~ . e .Outcome Categories 1 End chronic homelessness ~ ^~ Availability/Accessibility ^ 2 _ Affordability , ^ Sustainability 3 ~ 01 People ~ Proposed 745 Accompl. Type: ~ rn +' Underway C ~ ~ Complete s Accompl. Type: ~ Accompl. Type: ~ U Q ~ _ ~O d v Accompl. Type: ~ Accompl. Type: ~ U Q Pro posed Outcome Performance Measure Actual Outcome 50% of individals seeking On-site monitoring & measure goal emergency shelterwil~be accomplishment transition to interim (transitional) . housing 05 Public Services (General) 570.201(e) ~ Matrix Codes ~ 03T Operating Costs of Homeless/AIDS Patients Programs ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Project {22) 29A_ee. Attachment 3 Grantee Name: Santa Ana CPMP Version 2.0 Project Name: Mercy House Transitional Livin `Center - ESG09 ®escription: IUIS Project #: - UoG Code: CA63342 SANTA ANA ESG funds to support transitional housing for homeless women with children and single adult males. A total of $29,000 is ESG has been granted - $11,000 for essential services and. $18,000 for shelter operations. location: ?'~ _3 _z P `orr Need Cat a . _h~t e9~~rY", , - Citywide Select one' Homeless/HIV/AIDS ~ Explanation: Expected Completion Date• Activity will assist homeless persons obtain appropriate housing. 6/30/2010..,. :Objective Category Decent Housing Suitable Living Environment o Economic Opportunity. ~;- ~ ~ ri ~°~. ~- 5' ecific l3b'eckiy_es ... ~ :-tip ~t~ . L~ 3. K.,. Outcome Categories 1 Increase the number of homeless persons moving into permanent housing ~ Q Availability/Accessibility 2 End chronic homelessness ~ ^ Affordability ^ Sustainability 3 ~ Ol People ~ Proposed 22 Accompl. Type: ~ Underway ~ Gl Complete H Accompl. Type: ~ Accompl. Type: ~ V G7 ~. ~® ~ L O, v Accompl. Type: ~ Accompl. Type: ~ U a Pro osed Outcome Performance Measure Actual Outcome 5% of individuals assisted in On-site monitoring & measure goal transitional housing will be placed accomplishment in permanent housing 05 Public Services (General) 570.201(e) ~ Matrix Codes ~ 03T Operating Costs of Homeless/AIDS Patients Programs ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Project (23) 295 ~ 00 Attachment 3 CPMP Version 2.0 Grantee Name: Santa Ana Project lvame: O.C Mental;Health Association - ESG09 Description: IDIS Project #: UOG Code: CA63342 SANTA ANA - ESG funds to support chronic homeless. outreach program. OCMHA will undertake. numerous encounters with chronic. homeless to assess needs with the hope. ofbringing them into a system of care: A total of $27,000. in ESG allocated for essential services. . Location: ,~,. ~ Pi~onty Need„Ca~iegory: ~' ; ~^ Citywide Select One' Homeless/HN/AIDS ~ Explanation: Expected Completion Date' Activity. will assist hornless persons obtain approprate housing and services. 6/30/2010 Objective Category Decent Housing Suitable Living Environment Economic Opportunity ~, ; ~ ~:._ *;~ s - i ..:. < _ ,°. ~~ Specific~Obj;ecELves} L :K.,-r °t Outcome Categories End chronic homelessness ~ 1 Q Availability/Accessibility ^ or 2 - Aff dability ^ Sustainability - 3 ~ 01 People ~ Proposed 550 Accompl. Type: ~ N +' Underway ' C ~ ~ Complete ~ Accompl. Type: ~ Accompl. Type: ~ U d Q ~O. d v Accompl. Type: ~ Accompl. Type: ~ v Q Pro osed Outcome Performance Measure Actual Outcome 50% of all persons seeking On-site monitoring & measure goal services will be linked to 1 or accomplishment more additional support services and/or appropriate housing 05 Public Services (General) 570.201(e) ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ ~ Fund Source: ~ Proposed Amt. $ 27,000 Fund Source: ~ i Actual Amount ~ Fund Source: ~ Proposed Amt. Fund Source: ~ 29A-101 Project (24) 26 Attachment 3 Grantee Name: Santa Ana CPMP Version 2.0 Project Name: Rebuilding Together'. - Description: IDIS Project #: , - UOG Code: CA63342 SANTA ANA CDBG funds to assist community-based nonprofit rehabilitate homes of seniors and individuals with special needs. Program qualifies as for Low/Moderate-Housing per 24 CFR 570.208 (a) (3). Location: . .~-'~ ~~ ~_`.,,,_ .`_ Fr±vrityNeed.Categoiy~. ::yam f`; f" Citywide Select One' Owner Occupied Housing ~ Explanation: Expected Completion Date• Activity will help the City maintain the stock of owner-occupied housing that is 6/30/2010 affordable to lower income households. Objective Category Decent Housing Suitable Living Environment Economic Opportunity ~:x h<<.L + ~~ . specific ti}ectives~ '~ ~ ~ ~'e Outcome Categories 1 Improve the quality of owner housing ~ Availability/Accessibility ^ 2 ~ Affordability Q Sustainability 3 ~ 10 Housing Units ~ Proposed 10 Accompl. Type: ~ N ~+-~ Underway tv Complete ~ Accompl. Type: ~ Accompl. Type: ~ U ~ a '® ~ ~ v Accompl. Type: ~ Accompl. Type: ~ Q Pro posed Outcome Performance Measure Actual Outcome At least 40% of rehab loan to be Review work write-up and calculate expended on code related-items amount for code work 14A Rehab; Single-Unit Residential 570.202 ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ ~ CDBG ~ Proposed Amt. $ 30,000: Fund Source: ~ Project (25} 27 Attachment 3 29A-102 Grantee Name: Santa Ana CPMP VErsion 2.0 Project Name:. SBC Communi Mission = ESG09 Description: IDIS Project #: UOG Code: CA63342 SANTA ANA ESG funds to prevent homelessness. Funds: will be used to pay a portion of-rent to prevent eviction; or utilities to - prevent shut-off. Location: ~ 'r `~~ b ` ~ Pr` on ~ Need'Cete ~ ~ ` - v`.~ s ~ ty 84rys. .•_, Ci ide tyw - Select one' 1 Homeless/HIV/AIDS ~ Explanation: Expected Completion Date• Activity will prevent individuals and families from becoming homeless. 6/30/2010 Ob}ective Category. ~} Decent Housing Q Suitable Living Environment ~EconomicOpportunity ~u' ~ ~ ~ -~- ` :;;S e ificObje ,Y ::? ~ tiv s ~ ~ '-< , ~, • p c c e ~. •~ Outcome Categories Increase the number of homeless persons moving into permanent housing ~ 1 Availability/Accessibility ^ Affordabili 2 _ ty ^ Sustainability 3 ~ H 01 People ~ Proposed 300_- Accompl. Type: ~ +' . C Underway ~ O Complete y Accompl. Type: ~ Accompl. Type: ~ V - a~ a •o E L d v Accompl. Type: ~ Accompl. Type: ~ U a Pro posed Outcome Performance Measure Actual Outcome 50% of assisted individual or On=site monitoring &"measure goal households will retain their accomplishment housing or utilities for @ least 6 months after assistance is - rovided 05Q Subsistence Payments 570.204 ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ N ESG ~ Proposed Amt. $ 5,000 Fund Source: ~ Project (26) 28 CPMP 29A-103 Grantee Name: Santa Ana CPMP Version 2.0 Project Name: SMEDA Homelessness Prevention - ESGt39 :' Description: IRIS. Project #: ~ UOG Code: CA63342 SANTA ANA ESG funds.: to prevent homelessness. Funds wilF be used to pay a portion. of rent to preveht eviction, or utilities to prevent shut=off. Total grant is for $26,000;. $3;000 for essential services. and $23.,000 for prevention. ... Location: ~', :~.~ '. = :~ . <-`:.. ~ erTo~ity~,Need,Gategbr}r-r, . - };~'. , Citywide Select One' Homeless/HIV/AIDS ~ ~~ Explanation: Expected Completion Date• Activity will prevent individuals and families from becoming homeless. 6/30/2010.... Objective Category Decent Housing Suitable Living Environment Ewnomic Opportunity ~ ,. ~;"•° 5 ,ecific Ob ect>ivlES '_i ~e ~ ~~,? :` r Outcome Categories 1 Increase the number of homeless persons moving into permanent housing ~ ^~ Availability/Accessibility ^ 2 ~ Affordability ^ Sustainability 3 ~ Ol People ~ Proposed 232 Accompl. Type: ~ +' Underway C ~ ~ Complete r Accompl. Type: ~. Accompl. Type:. ~ ++ y v - G~ C. ~O L d v Accompl. Type: ~ Accompl. Type: ~ v a Pro posed Outcome Performance Measure Actual Outcome 50% of assisted individual or On-site monitoring & measure-goal households will retain their accomplishment housing or utilities for. @ least 6 months after assistance is rovided 05 Public Services (General) 570.201(e) ~ Matrix Codes ~ 05Q Subsistence Payments 570.204 ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Project (27) 299 ~ 04 Attachment 3 Grantee Name: Santa Ana CPMP Version 2.0 Project Name: The Villa: Center ' ESG09` Description: IDIS Project #: uoG Code: CA63342 SANTA ANA ESG funds to support transitional housing program for chronically homeless adults. ESG funds vrill be used for shelter operations. Location: r - ' ~"~' '~~~~` ;=a ;~ ~ #i_x Prlor~N~_e_d~.Ca~~9o!rY -~..~.~ Citywide Select one' ~ homeless/HIV/AIDS ~ Explanation: Expected Completion Date• Activity will.assistfiomeless persons obtain appropriate housing and services. 6/30/2010 Objective Category Q Decent Housing Suitable Living Environment Economic Opportunity ~; ~ . -~~ _..'_, ,~ `_~ i,~~C~S ecific'db~ ectiv "' ~~ ~k '~ ' ~;." ~~»~ ~[~~, .I ~~, s ;~ . Outcome Categories 1 Increase the number of homeless persons moving into permanent housing ~ Availability/Accessibility ^ Affo d bilit 2 _ r a y ^ Sustainability 3 ~ N Ol People ~ Proposed 20 Accompl. Type: ~ _ ~ Underway ~ ~ Complete s y Accompl. Type: ~ Accompl. Type: ~ ~ • U d Q. •O Q v Accompl. Type: ~ Accompl. Type: ~ V a Pro posed Outcome Performance Measure Actual Outcome 5% of individuals assisted in On-site monitoring & measure goal transitional housing will be placed accomplishment in permanent housing 03T Operating Costs of Homeless/AIDS Patients Programs ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ ~ ESG ~ Proposed Amt. $ 11,000 Fund Source: ~ Project (28) 30 Attachment 3 29A-105 Grantee Name: Santa Ana CPMP Version 2.0 Project Name: Thomas House = ESG09 Description: IDIS Project #: UoG Code: CA63342 SANTA ANA ESG funds to support transitional housing program for homeless families. Clients are required. to help themselves- by working or attending an educational facility, to attend life-skills classes: held at the shelter, and to save a percentage. of income for permanent housing.. ESG' funds will be used for shelter operations (utilities, food & insurance). Location: ~' ~' L-~' ~~' Pr-io~ityiVeed Categ~ary;~ ,+, t' :'~.~~' .. _ Citywide Select One' Homeless/HIV/AIDS ~ Explanation: Expected Completion Dater Activity will assist homeless persons obtain appropriate housing and services: 6%30/2010 Objective Category Decent Housing Suitable Living Environment Economic Opportunity ', ;,,,,~,~„'s'. - -,Specific. Obyectw,es, ~ '` ~. ~'' Outcome Categories Increase the number of homeless persons moving into permanent housing ~ 1 Availability/Accessibility o 0 2 ~ Aff rdability ^ sustainability 3 ~ 01 People ~ Proposed 24 Accompl. Type: ~ y +' C Underway ~ ~ Complete ~ .= Accom I T e ~ P • YP ~ Accom I T e ~ P • Yp ~ v- ca a '® E d v Accompl. Type: ~ Accompl. Type: ~ V Q Pro posed Outcome Performance Measure Actual Outcome 5% of individuals assisted in On-site monitoring & measure goal transitional housing will be placed accomplishment in permanent housing 03T Operating Costs of Homeless/AIDS Patients Programs ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ ~ ESG ~ Proposed Amt. $ 15,500 Fund Source: ~ Project (29) 291-1 06 Attachment 3 Grantee Name: Santa Ana CPMP Version 2.0 Project Name: Wise Place - ESG09 Description: IDIS Project #: UOG Code: CA63342 SANTA ANA Transitional housing and supportive services for homeless vvomen. Total ESG grant is for:$32500 for shelter operations. Location: ~.;, Prion~y~Need.Categor}d~~~~'~ ~~` #~;~_~ ~',~ Citywide Select One: ~ Homeless/HIV/AIDS ~ Explanation: Expected Completion Date: Activity will assist homeless persons obtain appropriate housing and services. 6/30/Z010 Objective Category Q Decent Housing Suitable living Environment Economic Opportunity ~,:~;~: = .~~- ~s `' , ; ~ : ;, e ; 4 r' ~ S c fi~Qb~ tt : °+ ~ ` , . .. ~.:~ ~~ p ~ e e ;ly ~ ,s; .; . .,.~,, x ,.;i .~.1 ~ Outcome Categories Increase the number of homeless persons moving into permanent housing ~ 1 . Q Availability/Accessibility ^ Af rd bili 2 _ fo a ty ^ Sustainability 3 ~ ~ 01 People ~ Proposed 25 Accompl. Type: ~ +' C Underway ~ O Complete s Accompl. Type: ~ Accom I. T ~ P YPe: ~ N V GJ Q ~G L d v Accompl. Type: ~ Accompl. Type: ~ v Q Pro posed Outcome Performance Measure Actual Outcome 5% of individuals assisted in On-site. monitoring & measure goal transitional housing will be placed accomplishment in permanent housing 03T Operating Costs of Homeless/AIDS Patients Programs ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ ~ _ESG ~ Proposed Amt. $ 32,500 Fund Source: ~ Project (30) 32 Attachment 3 29A-107 CPMP Version 2.0 Grantee Name: Santa Ana Project Name: Women's Transitional. Living Center - ESG09;.;. Description: IRIS Project #: UOG Code: CA63342 SANTA ANA ESG funds to. support emergency, shelter program for victims of domestic violence. ESG funds will be used to support shelter operations ($23,500) and essential services ($15,000). Location: z:? ~:~, ~ ~ .~ , - xn ,,, ~''. .t~Priv}-~t~r (Y~eed,~Category ; `~~ Citywide Select One' Homeless/HIV/AIDS ~ Explanation: Expected Completion Date• Activity will assist homeless persons obtain-appropriate housing and services. 6/30/ZO10 Objective Category Decent Housing Q Suitable Living Environment Q Economic Opportunity r`.,°~.1 r; rs i '.Yf ~> ~''~"~ ;Specific Qb}ectrves T-` ~ ~ `~:' ~,: Outcome Categories 1 Increase the number of homeless persons moving into permanent housing ~ D Availability/Accessibility ^ Aff dabilit 2 End chronic homelessness ~ or y ^ Susteinability 3 ~ 01 People ~ Proposed 229. Accompl. Type: ~ +~ Underway C ~ Complete s Accompl. Type: ~ Accompl. Type: ~ ~ in U - Cl Q. ~O ~ v Accompl. Type: ~ Accompl. Type: ~ V Q Pro posed Outcome Performance Measure Actual Outcome 50% of individals seeking ' ' Ori-site monitoring & measure goal emergency shelter will be - accomplishment transition to interim (transitional) housing - 03T Operating Costs of Homeless/AIDS Patients Programs ~ Matrix Codes ~ 05 Public Services (General) 570.201(e) ~ Matrix Codes ~ Matrix Codes ~ Matrix Codes ~ ~ ESG ~ Proposed Amt. $ 23,500 Fund Source: ~ L Actual Amount d ESG ~ Proposed Amt. $ 15,000 Fund Source: ~ y Project (31) 33 Attachment 3 29A-108 Grantee Name: Santa Ana CPMP Version 2.0 Project Name: ESG Admin - ESG09 - Description: IRIS Project #: UoG Code: CA63342 SANTA ANA . ESG program oversight`and: coordination. Activities include reviewing quarterly. reports, processing payment requests, on-site monitoring and other direct program oversight costs. Location: ::~ * ~ Prior ty~iVecsL'.Category;„ Citywide Select One' Planning/Administration Explanation: Expected Completion Date• Activity needed to ensure appropriate oversight'and coordination of federal funds 6/30/2010 subject to the Con Plan. .Objective Category O Decent Housing O Suitable Living Environment O Economic Opportunity ~ ,~. ;r 1 ~ ~~ ~~, ~~ Yom,-~ ,~; S e~i#ic,OUjeCtives Outcome Categories 1 End chronic homelessness • ^ Availability/Accessibility bili ^ Affo d 2 Increase the number of homeless persons moving into permanent housing • ty r a ^ Sustainability 3 • Accompl. Type: • Proposed NA : Accompl. Type: • H +~ Underway C ~ d Complete ~ Accompl. Type: • Accompl. Type: • . V - Q ~ •O d ~ Accompl. Type: • Accompl. Type: • Q Pro osed Outcome Performance Measure Actual Outcome Maintain prgm admin @ a level to Revievv HUD monitoring reports. ensure no HUD findings 21A General Program Administration 570.206 • Matrix Codes Matrix Codes • Matrix Codes • Matrix Codes • Matrix Codes • m ESG • Proposed Amt. $ 4,972 Fund Source: • Project (32) 34 Attachment 3 29A-109 29A-110 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 4, 2009 TITLE: QUITCLAIM OF SANITARY SEWER EASEMENT AT 301 MAIN PLACE DRIVE ' / - CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 15i Reading ^ Ordinance on 2nd Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute a quitclaim deed relinquishing the City's reservation of easement for sanitary sewer purposes at 301 Main Place Drive to the Community Redevelopment Agency. DISCUSSION In 1985, the City granted a parking easement to Santa Ana Investors (SAI) over land adjacent to SATs property and near Santiago Creek and the Broadway Bridge over the I-5 Freeway. The parking easement deed included a blanket-in-nature reservation to own, operate and maintain a sewer pipe. The SAI property was acquired by Caltrans as part of the I-5 improvements in the 1990'x. The remainder of the SAI property was then deeded to the Community Redevelopment Agency (CRA) and is currently being used by the Discovery Science Center as a parking lot. In 2006, the City conveyed fee title to the land subject to the sewer easement reservation to the Community Redevelopment Agency, which then merged the parcel with the former SAI property. The blanket-in-nature sewer easement reservation will be replaced by a. more specifically described sewer easement, which will be consistent. with the newly realigned sewer pipe location. Staff is recommending the City quitclaim its interest in the easement to CRA (Exhibit 1). ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed request is not considered to be a project. No further action is required. 30A-1 Quitclaim of Sanitary Sewer Reservation of Easement at 301 Main Place Drive May 4, 2009 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. /"-~'o~ James G. Ross Executive Director Public Works Agency 30A-2 30A-4 MEMORANDUM To: From: Subject: Assistant City Manager Executive Director/ Plamung & Building Agency Date: April 14, 2009 CONDITIONAL USE PERMIT NO. 2009-06 FOR AN ALCOHOL BEVERAGE CONTROL LICENSE LOCATED AT 3600 WEST MCFADDEN AVENUE On April 13, 2009, the Planning Commission confirmed the Zoning Administrator's action approving Conditional Use Permit No. 2009-06 as conditioned; and confirmed the Zoning Administrator's authorization to issue a letter of Public Convenience and Necessity for the approval of a Type 20 Alcohol Beverage Control license in order to sell beer and wine for off-premise consumption at the Wal-Mart Store at 3600 West McFadden Avenue. Please note the vote on the motion to approve Conditional Use Permit No. 2009-06 was as follows: AYES: Leo, Mill, Turner, Yrarrazaval (4) OPPOSED: None (0) ABSENT: Alderete, Betancourt, Gartner (3) ABSTAII~TED: None (0) Should the City Council decide to reconsider this action, they may set the item for public hearing within 21 days of the Planning Commission's decision. ~ ; Jay M. Trevino JMT:rb mr~ABC\04-13-09 CUP 2009-06 3600 W. McFadden Ave. cc: City Council City Manager 39A-1 39A-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 4, 2009 TITLE: RESOLUTION OF INTENTION TO MODIFY THE DOWNTOWN MANAGEMENT DISTRICT PLAN / l` CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1 n Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER Adopt a Resolution of Intention to modify the Management District Plan for the Downtown Santa Ana Community Management District. DISCUSSION On December 15, 2008, the City Council adopted a resolution establishing the Downtown Santa Ana Community Management District (CMD) and the levy of an assessment of the property owners within the District to fund various activities in the Downtown. The CMD plan provided that the initial tax assessment was to be levied in FY 2008-09, and the operating term of the CMD was January 1, 2009 to December 31, 2013. Downtown, Inc. is the newly created non-profit organization that will oversee the expenditure of the assessments collected during the five year term of the CMD. The Board of Downtown, Inc. recently took an action to defer the assessment levy until FY 2009-10, with the first installment being due in October 2009. The Board felt that the new assessment may place an undue hardship on the property owners in the CMD due to current challenging economic conditions. This change in assessment levy necessitates a modification to the CMD plan approved by the City Council. Further, the operating term of the CMD must also be modified to now reflect January 1, 2010 to December 31, 2014. Prior to final consideration by the City Council, a public hearing must also be conducted which will be scheduled for a subsequent meeting after proper publication. The property owners were notified of this pending action before the City Council, and the appropriate public notice of the meeting was published in the newspaper as required by Section 13-112 of the Santa Ana Municipal Code. 55A-1 Resolution of Intention to Modify Downtown Mgmt District Plan May 4, 2009 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. Cynthia J. Nelson Deputy City Manager for Development Services Community Development Agency CJN/kg 050409 ResoIntentMOdifyDT MD Plan 55A-2 JWF (04/22/09) RESOLUTION NO. 2009-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA STATING ITS INTENTION TO MODIFY THE MANAGEMENT DISTRICT PLAN FOR THE DOWNTOWN SANTA ANA COMMUNITY MANAGEMENT DISTRICT AND SETTING A TIME AND PLACE FOR PUBLIC HEARING THEREON. 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. Pursuant to Article XX of Chapter 13 of the Santa Ana Municipal Code (the "Law"), the City Council established the Downtown Santa Ana Community Management District (CMD). B. The Management District Plan for the CMD called for the assessment to be levied commencing with Fiscal Year 2008-2009 and for the CMD to be operative from January 1, 2009 to December 31, 2013. C. Economic considerations have dictated that both the initial assessment and operative term be delayed one year. D. The City proposes to have the initial assessment by levied for Fiscal Year 2009-2010 and that the CMD be operative from January 1, 2010 through December 31, 2014. E. Section 13-112 permits the Management District Plan for the CMD be modified by notice of a resolution of intention being sent to all assessees and published. F. Notice of this Resolution of Intention has been mailed and published are required by the Law. Section 2. Pursuant to Sections 13-112 of the Law, the City Council declares its intention to modify the Management District Plan to levy the assessment commencing with Fiscal Year 2009-2010 and to provide for the CMD to be operative for an initial five years from January 1, 2010 through December 31, 2014. Resolution No. 2009-XXX 55A-3 Page 1 of 4 Section 3. NOTICE IS HEREBY GIVEN that the City Council shall conduct a public hearing on the modification of the Management District Plan on May 18, 2009 at 6:00 p.m., or as soon thereafter as the matter may be heard, in the Police Community Room Chambers located at 60 Civic Center Plaza, Santa Ana, California 92701. Section 4. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this 4th day of May, 2009. Miguel A. Pulido Mayor APPROVED AS TO FORM: By: Joseph W. Fletcher, City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2009-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. 2009-XXX Page 2 of 2 55A-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 4, 2009 TITLE: PUBLIC HEARING - AMEND DEVELOPMENT AGREEMENT NO. 2005-02 AND CONDITIONAL USE PERMIT NOS. 2005-10 AND 2005-15 TO ALLOW THE RENTAL OF UNITS AT THE SKYLINE TOWERS AND MONTAGE PROJECTS LOCATED AT MACAIZTHUR PLACE SOUTH - NDC SKYLINE ASSOCIATES, LLC AND INTEGRAL COMMUNITIES, APPLICANTS ~(. CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 15` Reading ^ Ordinance on 2~`' Reading ^ Implementing Resolution ^ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Adopt an ordinance approving the second amendment to Development Agreement No. 2005-02 with respect to Nexus/NDC Skyline Towers. 2. Adopt a resolution approving the amendment to Conditional Use Permit No. 2005-10 as conditioned. 3. Deny the application of Integral Communities I, Inc. to amend Development Agreement No. 2005-02. 4. Adopt a resolution denying the amendment to Conditional Use Permit No. 2005-15. PLANNING COMMISSION ACTION On March 23, 2009, the Planning Commission recommended that the City Council: 1. Adopt an ordinance approving the second amendment to Development Agreement No. 2005-02 with respect to Nexus/NDC Skyline Towers. 2. Adopt a resolution approving the amendment to Conditional Use Permit No. 2005-10 as conditioned. By a vote of 7:0. 75A-1 Amend DA No. 05-02 and CUP Nos. 05-10 & 05-15 May 4, 2009 Page 2 3. Deny application of Integral Communities, I, Inc. to amend Development Agreement No. 2005-02. 4. Adopt a resolution denying the amendment to Conditional Use Permit No. 2005-15. By a vote of 4:3 (Gartner, Mill, Turner opposed). NDC Skyline Association, LLC and Integral Communities are proposing to amend provisions of the MacArthur Place South development agreement and two conditional use permits to allow the rental of units at the Skyline Towers at 9 and 15 MacArthur Place and the Montage condominium project at 100-130 East MacArthur Boulevard in the Specific Development No. 76 (SD- 76) zoning district (Exhibit A) The Planning Commission, after extensive discussions on the issues, recommended that the City Council approve Nexus' request to allow some or all of the units within the Skyline Towers project to be for rent. In addition, the Commission expressed concerns with the long-term management of the property and recommended that Section 4.2 of the development agreement be modified to require the submittal of background information on the property management company. Finally, the Commission modified Planning Division Condition No. 26 to clarify that the submittal of an operation plan would only be applicable to a rental project. In reviewing the request by Integral to allow some or all units to be for rent at the Montage project, the Planning Commission expressed concerns with Integral's lack of a development track record in the City, concerns with the potential quality of the Montage since the project has yet to be constructed, and potential issues with the future management of a rental project. At the conclusion of their discussions, the Commission recommended that the City Council deny Integral's request to allow rental units at the Montage project. FISCAL IMPACT There is no fiscal impact associated with this action. a M. Trevino Executive Director Planning and Building Agency VF:rb of/repor[s/Nexus/Amendda05-02cup05-10&15Skylinerental.~ 5A- w REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: MARCH 23, 2009 TITLE: PUBLIC HEARING - FILED BY NDC SKYLINE ASSOCIATES, LLC AND INTEGRAL COMMUNITIES TO AMEND DEVELOPMENT AGREEMENT NO. 2005-02 AND CONDITIONAL USE PERMIT NOS. 2005-10 AND 2005-15 TO ALLOW THE RENTAL OF UNITS AT THE SKYLINE TOWERS AND MONTAGE PROJECTS LOCATED AT MACARTHUR PLACE SOUTH Prepared by Vince Fregoso and Ann Ni Executive Director RECOMMENDED ACTION Recommend that the City Council: PLANNING COMMISSION SECRETARY APPROVED ^ As Recommended ^ As Amended ^ Set Public Hearing For DENIED ^ Applicant's Request ^ Staff Recommendation CONTINUED TO Planning M ager 1. Adopt an ordinance approving the second amendment to Development Agreement No. 2005-02. 2. Adopt a resolution approving the amendment to Conditional Use Permit No. 2005-10 as conditioned. 3. Adopt a resolution approving the amendment to Conditional Use Permit No. 2005-15 as conditioned. DISCUSSION Request of Applicant NDC Skyline Associates, LLC, a subsidiary of the Nexus Development Corporation (Nexus), and Integral Communities, are proposing to amend provisions of the MacArthur Place South development agreement and two conditional use permits in order to allow the rental of some or all units at the recently completed Skyline Towers at 9 and 15 MacArthur Place and the pending Montage mid-rise condominium project to be located at 100-130 East MacArthur Boulevard. Property Description MacArthur Place South is a 9.8-acre development that is generally situated between MacArthur Boulevard, Main Street and Sandpointe Avenue. MacArthur Place South consists of three separate parcels and is currently entitled for the development of three 25-story high-rise 75A-3 Amend DA No. 05-02 and CUP Nos. 05-10 & 05-15 March 23, 2009 Page 2 towers, a six-story mid-rise residential/office building, a four to six- story mid-rise condominium development, and 14,000 square feet of retail and restaurant uses. Two high-rise towers, the 349-unit Skyline Towers development at 9 and 15 MacArthur Place, were completed in October 2008. At final build out, a total of 791 for sale condominium units are entitled to be constructed at the MacArthur Place South project. The overall MacArthur Place South project site is zoned Specific Development No. 76 (SD-76) and has a General Plan land use designation of District Center (DC) Surrounding land uses include the MacArthur Place mixed-use development to the north, the Newport-Costa Mesa (SR-55) Freeway to the east, office and industrial development to the south and the Sandpointe residential neighborhood to the west (Exhibits 1 and 2). Analysis of the Issues In 2005, the City approved several entitlements, including a development agreement and two conditional use permits, for The Grand Plan I and II, LLC, subsidiaries of the Nexus Development Corporation, and Integral Communities for the MacArthur Place South development. The development agreement established development intensity, permitted uses and development standards for the term of the agreement. Further, the approved development agreement required certain improvements and public benefits such as in-lieu fees for parkland dedication, payment of an inclusionary housing fee, and the execution of an off-site improvement agreement with the Sandpointe Neighborhood Association (Exhibit 3). Also included in the entitlements was a requirement that all units within the projects be for-sale units. Over the last few years, a significant shift in the local and national economy has occurred. This shift has severely impacted the real estate and development market. As evidence of the severe nature of the economic downturn in real estate development, of the 14 large projects that have been submitted to the City for review in the past three years (Brookhollow Office project, City Place retail/residential project, Sky Loft Tower, Cordoba courtyard housing, First and Cabrillo condominiums, Montage condominiums, Nexus Skyline Towers, Nexus Phase II, One Broadway Plaza office tower, Promenade Pointe condominiums, Sixth and Parkcenter development, Town and Country Manor, Village Green and the West End Lofts), only the City Place and Skyline Towers projects have begun or completed construction. These same trends are evident in communities throughout the region. 7 5A-4 Amend DA No. 05-02 and CUP Nos. 05-10 & 05-15 March 23, 2009 Page 3 The modifications to Development Agreement No. 2005-02 and Conditional Use Permit No. 2005-10 will give Nexus the ability to rent some or all units within the 349-unit Skyline Towers project, which was completed in October of 2008. Further, the modifications to the development agreement as well as Conditional Use Permit No. 2005-15 will give Integral the ability to secure financing and begin construction on the 276-unit Montage mid-rise development that will be located at the southwest corner of Main Street and MacArthur Boulevard (Exhibit 4). Given that the towers have been constructed with the original expectation that the residential units would be immediately offered for sale as luxury condominiums, the various design elements and amenities (enhanced interior and exterior finishes, unit fixtures, public and private spaces) for the Skyline Towers project are of a quality that exceeds that provided for any comparable project, rental or for-sale. In addition, because the units are completed but vacant, it allows for the towers to be occupied despite the recent downturn in the housing and financing markets. Further, it minimizes the potential for the towers to remain vacant for an extended period of time and provides readily available housing in the community. Nexus still remains committed to the eventual sale of units within the Skyline Towers and will be actively involved in the sale or rental of the units. Integral is also committed to developing the project as entitled, with the design elements, finishes and amenities for the Montage project to be of the highest quality. Integral is also committed to the eventual sale of units within the Montage project and will also be involved in the sale or rental of the units. The documents allowing the sale of units, including the subdivision map and covenants, conditions and restrictions (CC&Rs), have been recorded for the Skyline project, which allows Nexus the ability to continue to sell units now and in the future as the housing and financial markets shift. Thus this action may be a bridge to the ultimate owner occupancy of the project. The same documents have also been recorded for the Montage project, which will also allow Integral the ability to sell units as the project is constructed. The downturn in multi-family residential development has impacted projects throughout the county. Other adjacent communities such as Anaheim, Costa Mesa and Irvine have entitled similar mid and high-rise projects that have either been placed on hold or are recently completed. Table 1, shown on the following page, provides an update of select projects in these jurisdictions as well as identifies if the projects can be converted from condominiums to apartments. 75A-5 Amend DA No. 05-02 and CUP Nos. 05-10 & 05-15 March 23, 2009 Page 4 Table 1 List of Similar Projects in Adjacent Jurisdictions Jurisdiction Project Name Units Status Apartments/Condo Anaheim Stadium Lofts 390 Completed Approved as apartments/converted to condos 1818 265 Completed Approved as condos/converted to apartments Anavia 250 Completed Approved as condos/converted to apartments Avalon Anaheim 251 Completed Approved as Stadium condos/converted to apartments Costa Mesa North Costa 1,269 Entitled Condos (must amend Mesa High-rise entitlements to be residential apartments) Enclave 890 Completed Apartments Lakes at South 770 Completed Apartments Coast Irvine Marquee at 232 Completed Condominiums Park Place Lofts at Von 115 Under Approved as Karman construction condos/may be converted to apartments Nexus has established a strong track record of success in the City. Further, Nexus has complied with all requirements and conditions of the project and has constructed a project that exceeds what is typically required for a multi-family residential project. Given Nexus' involvement in the rental of the project, it is expected that the rental component of the Skyline Towers will also be successful. It is also expected that Integral will continue to be actively involved in the project and will maintain the units at the highest levels. Additional conditions of approval have been added to ensure the projects remain of highest quality. Therefore, staff recommends that the Planning Commission recommend that the City Council approve the Amendment to Development Agreement No. 2005-02 and the Amendments to Conditional Use Permit Nos. 2005-10 and 2005-15 as conditioned (Exhibits 5 through 8 ) . 75A-6 Amend DA No. 05-02 and CUP Nos. 05-10 & 05-15 March 23, 2009 Page 5 CEQA Compliance The allowance of rental units within the projects could result in an increase in vehicle trips for the project. However, in analyzing the proposed project, it has been determined that no significant trip generation changes will result. Urban Crossroads, a traffic engineering firm, utilized the Orange County Transportation Analysis Model (OCTAM), to review potential impacts from the project. Using the traffic analysis model, which calculates the long-range analysis for the project, it was determined that no new impacts are expected since the number of overall units, the number of persons in the households and the income levels for the project will remain the same. Further, no new traffic impacts are expected since the overall form and intent of the buildings will not change, with the floor plans and related amenities remaining the same for either a for-sale or rental project. Finally, the use of the units as rental units will be an interim use of the site, with units available for purchase in addition to rental. Therefore, in accordance with the California Environmental Quality Act, the proposed project has been determined to be adequately evaluated in previously prepared Environmental Impact Report No. 2004-02. ~' _..._ ~" ~ ~"_' a, Vince Freg so, AI P Principal "er VF:jm vf/reports/Nexus/Amendda05-02cup05-10&15Skylinerenta1.032309.pc ~,~ ~~~ Ann Ni Associate Planner 75A-7 \ ^\ I --~~ 'I-I --II I I \\\ \ i I -11 RiL - ~I I I i~~~\l/ ~\ M I If-__ ~~/ I ii ~I :~\ I ~ I `---- . li M1 I I u it R1 ~. I `_ ~ I--- i i II CR M1 ~ M1 M7 M2 ---I ___ \\ ~I '-`I Ri II Ily II ARRY I~__II II II--\II II II If----- ~I -- IJ II 11 ~L_='I--- ~ I' `~ - _-IIJ I-'I I~ 11 II - -T Ij ' ~I I i F ~r ~ ~ aLroN av. - 'Y+RVEraV " - O R1 NARV ~,~ h P c OLAV. ~ ~ ~ CR M1 ~ Ml 5 Ml Ri R1 s ~ I~-+v~.e~ sIERRaoR Ri a COLUMBINE AV I V. N,9INEAV.~- - -- F SD-43 ~ R1 N ~ ~ SD-43 SD-43 Rl ~ R1 ~ Ri Rl z eucARrNUR RucE / R1 y R1 ~ C4 ~ ~ v F ~ FIR&i aMERICPN WAY Ri o / SD-43 ~ /'~ ~+ ~+ ALRINE C5 b ~V 1 ~7~~7 R1 R1 MACARTHUR BL. -- -- - -- R1-PRD fl1-PRD R1-PRD ~, ,,, ~ C5 i ;-" SD-76 R7- _~ R7- R7-PRD - ~ I` P D RD I ~Q f O N AV b O ` R1~ ~ 1-i. L ti. R1- R1 w-. ~, a ~, SD-76 PRD PRD ~~ _-` _ ~?FP_Y. MU AV yRt- D ~ MURPHY AV ~ aA,y o- ~~~` SD-76 PRD y~ ¢ c' ~ R7- PRD as AV. A' I TE V ~ fl1-PRD R7-0RD SD-76 _ KEL AV KE Y. R1 R1 g Ri \ / R1 ~ 0 ~ R1 R1 F R1 ~ R1 ¢ C i f y o f T u s t i n Rt R7 R1 ~ ""~ M1 _ s, sT R1 Ri STEYENS '`~' css -~ S NFL WER AV. -- Q' ~2 ~~~ QQ yh C i f y o 1 C a s t a M e s a 1 Al GENERAL AGRICULTURAL CR COMMERCIAL RESIDENTIAL R1 SINGLE FAMILY RESIDENTIAL -B PARKING MODIFICATION GC GOVERNMENT CENTER R2 TWO FAMILY RESIDENCE C-SM COMMERCIAL SOUTH MAIN M7 LIGHT INDUSTRIAL R3 MULTIPLE FAMILY RESIDENCE C1 COMMUNITY COMMERCIAL M2 HEAW INDUSTRIAL R4 SUBURBAN APARTMENTS C7-MD COMM. COMMERCIAL/MUSEUM DISTRICT MO MILITARY OPERATIONS RE RESIDENTIAL ESTATE C2 GENERAL COMMERCIAL O OPEN SPACE SD SPECIFIC DEVELOPMENT C3 CENTRAL BUSINESS P PROFESSIONAL SP SPECIFIC PLAN C3-A CENTRAL BUSINESS-ARTIST VILLAGE PCD PLANNED COMMUNITY DEVELOPMENT C4 PLANNED SHOPPING CENTER PRD PLANNED RESIDENTIAL DEVELOPMENT CS ARTERIAL COMMERCIAL AMENDMENT TO CUP 05-10, CUP 05-15 /~ & DA 05-2 ~ NDC SKYLINE LLC - - =SOOFEET 1"=t000FEET INTEGRAL COMMUNITIES P L A N N I N G A N D B U I L D I N G A G E N C Y VICINITY MAP 7~`~~' SERVICE STATION SERVICE W ~ STATION W W ~ H N ~ J ~Q ~~ ¢z 4w ,O ~~ >W ~~ SI GLE AM. R IDE IAL MURPHY AV. '~ W ~ W Q F ti ~ 2 Z W W p O U) ~ ~ W D W J W Q ~ ~ Z_ Q MULTI-FAMILY RESIDENTIAL H O T E L ~V A C A N T MACARTHUR BOULEVARD RETAIL B LOW R18E COND0.4 RESTAURANTS FOOD H AZ4 cowalsE W~ CONDOS 3@ O ~w 2j Y ~' ~U RR h W INEMA Q TOWER J a q 9 uKE ToxeR NORTH 2 v ~ LAKE 2 SaN o~[ u~souTTOMEx R OA 201 SANDPOINTE Q ~~ AVE. ~ Y O F F I C E R e a OFFICE O F F I C E PARKfNG I#0T& O F F I C E w U W D LL ~ Q~/ ~~ G~ O~ J~ / AMENDMENT TO CUP 05-10, CUP 05-15 ~- & DA 05-2 ~ NDC SKYLINE LLC ~ INTEGRAL COMMUNITIES P L A N N I N G A N D B U I L D I N G A G E N C Y LAND USE MAP ~IT~ A-loos-190 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza M-30 P.O. Box 1988 Santa Ana, California 92702 ~o~ ~dN 4 Recorded in Official Records, Orange County Tom Daly, Clerk-Recorder lllllllllllllllllllgllllllllllllllllllllllflllllllllllllllllllllll~lllll NO FEE 2005000565108 03:12pm 07{21105 116 67 A12 70 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 FREE RECORDING GOVERNMENT CODE § 6103 !` ~ ~~. DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA, And THE GRAND PLAN 1, LLC and THE GRAND PLAN 2, LLC Dated: August 4, 2005 DOCSOC/1110339v11/24579-0001 EXHIBIT 3 75A-10 Table of Contents Page 1. RECITALS ...............................................................................................................................1 1.1 Purpose .........................................................................................................................1 1.2 Code Authorization .....................................................................................................1 1.3 Owner ...........................................................................................................................1 1.4 Planning Commission -Council Hearings ................................................................1 1.5 Council Findings ..........................................................................................................2 1.6 City Ordinance .............................................................................................................2 2. DEFINITIONS .........................................................................................................................2 3. EXHIBITS ................................................................................................................................7 4. GEN ERAL PROVISIONS ......................................................................................................7 4.1 Duration of Agreement ...............................................................................................7 4.2 Assignment ...................................................................................................................7 4.3 Permitted Assignments ...............................................................................................8 4.4 Amendment or Cancellation of Agreement ..............................................................8 4.5 Hold Harmless .............................................................................................................9 4.6 Binding Effect of Agreement ......................................................................................9 4.7 Relationship of the Parties ..........................................................................................9 4.8 Notices ...........................................................................................................................9 5. DEVELOPMENT OF THE PROPERTY ........................................................................... 10 5.1 Owner Obligations ..................................................................................................... 10 5.1.1 Cooperative Agreement ................................................................................ 10 5.1.2 Public Improvements .................................................................................... 10 5.1.3 Phasing ........................................................................................................... 11 5.1.4 FAA Approval ............................................................................................... 11 5.1.5 Avigation Easement ...................................................................................... 11 5.1.6 Limit on Fast Food and Take Out Restaurants ......................................... 11 5.1.7 Development, Construction and Completion of Public Art ...................... ll 5.1.8 Inclusionary Housing Fee ............................................................................. 11 5.1.9 In-Lieu Park Development Fee .................................................................... 11 5.1.10 Covenants, Conditions, and Restrictions .................................................... 12 5.1.11 Parking Structure Easement ........................................................................ 12 5.1.12 Lake Improvements ...................................................................................... 13 5.1.13 Use of "City of Santa Ana" ........................................................................ 13 5.1.14 Compliance With Governmental Requirements ........................................ 13 5.1.15 Obligation to Submit Working Drawings and Commence Construction .................................................................................................. 13 5.2 City Obligations ......................................................................................................... 13 5.2.1 Vested Rights to Develop .............................................................................. 13 5.2.2 Non-application of Changes in Applicable Rules ....................................... 13 5.2.3 Special Tazes and Assessments .................................................................... 14 5.2.4 Agreed Changes and Other Reserved Powers ............................................ 14 5.2.5 Subsequent Development Approvals ........................................................... 14 5.2.6 Moratoria ....................................................................................................... 14 DOCSOC/ l 110339v 11 /24579-0001 75A-11 Table of Contents (continued) Pa>;e 5.2.7 Timing of Development ................................................................................14 5.2.8 Development Impact Fees ............................................................................14 5.3 Cooperative Agreement ............................................................................................14 6. ANNUAL REVIEW ...............................................................................................................14 6.1 City and Owner Responsibilities ..............................................................................14 6.2 Review Letter .............................................................................................................15 6.3 Failure of Periodic Review ........................................................................................15 7. DEFAULT .............................................................................................................................. 15 7.1 Events of Default by Owner ...................................................................................... 15 7.1.2 Events of Default by City ............................................................................. 15 7.2 Procedure upon Breach ............................................................................................ 16 7.3 Termination ................................................................................................................ 16 7.5 Institution of Legal Action ........................................................................................16 7.6 Multiple Owners ........................................................................................................16 7.7 Alternative Dispute Resolution ................................................................................17 7.8 Interim Relief .............................................................................................................18 7.9 Entitlements Survive Termination ...........................................................................18 7.10 Miscellaneous .............................................................................................................18 8. MORTGAGEE PROTECTIONS .........................................................................................18 8.1 Right to Owner/Notice/Multiple Mortgagees ..........................................................18 8.2 Notice of Breach to Mortgagee or Deed of Trust Holders; Right to Cure ...........18 8.3 Mortgagee Not Obligated Under the Agreement ....................................................19 8.4 No Liability ................................................................................................................19 8.5 No Amendment or Termination ...............................................................................19 8.6 Condemnation or Insurance Proceeds .....................................................................19 8.7 Title by Foreclosure ...................................................................................................19 8.8 Delegation to Mortgagee ...........................................................................................19 8.9 No Obligation to Cure ...............................................................................................20 8.10 Separate Agreement ..................................................................................................20 8.11 Estoppel Certificate ...................................................................................................20 8.12 Conflicts ......................................................................................................................20 9. MISCELLANEOUS PROVISIONS ..................................................................................... 20 9.1 Rules of Construction ................................................................................................ 20 9.2 Entire Agreement, Waivers and Amendments ....................................................... 20 9.3 Project as a Private Undertaking ............................................................................. 21 9.4 Incorporation of Recitals .......................................................................................... 21 9.5 Captions ...................................................................................................................... 21 9.6 Consent ....................................................................................................................... 21 9.7 Covenant of Cooperation .......................................................................................... 21 9.8 Time of Essence .......................................................................................................... 21 9.9 Conflicts of Law ......................................................................................................... 21 9.10 Enforced Delay; Extension of Time of Performance .............................................. 21 9.11 Recording ................................................................................................................... 22 DOCSOC/ 1110339v 1 1 /24579-000 1 75A-12 Table of Contents (continued) Page 9.12 Subdivision of Project ...............................................................................................22 9.13 Severability .................................................................................................................22 9.14 Waiver ........................................................................................................................22 9.15 No Personal Liability .................................................................................................22 9.16 Conditions of Discretionary Approvals ...................................................................22 9.17 Precedence ..................................................................................................................22 EXHIBITS EXHIBIT A PROPERTY DESCRIPTION EXHIBIT B PUBLIC ART PLAN EXHIBIT C COOPERATIVE AGREEMENT FOR OFF-SITE IMPROVEMENTS EXHIBIT D PUBLIC IMPROVEMENTS EXHIBIT E AVIGATION EASEMENT EXHIBIT F LAKE IMPROVEMENTS ~~~ DOCSOC/ 1110339v l 1 /24579-0001 75A-13 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA, THE GRAND PLAN 1, LLC AND THE GRAND PLAN 2, LLC This DEVELOPMENT AGREEMENT ("Agreement") is entered into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California (referred to herein as "City"), THE GRAND PLAN 1, LLC, a California limited liability company ("GP1") and THE GRAND PLAN 2, LLC, a California limited liability company ("GP2"). GPl and GP2 are collectively referred to herein, along with their permitted successors and assigns, as "Owner". RECITALS. The Agreement is entered into with reference to the following facts: 1.1 Purpose. (1) The purpose of this Agreement is to facilitate the development of approximately 9.79 acres of real property, located at the southeast corner of MacArthur Boulevard and Main Street (the "Property"} as a mixed use project with for-sale residential condominiums and office/commerciaUretail uses more particularly described in the definition of "Project" in Section 2.43. (2) The Property is described in Exhibit A and consists of an approximately 2.04 acre parcel currently owned by GPl ("GPl Parcel"), and an approximately 6.68 acre parcel currently owned by GP2 ("GP2 Parcel") and an approximately .78 acre parcel which is the subject of a contract to purchase by Owner (the "Fried Parcel"). The GPI Parcel and GP2 Parcel are referred to in Exhibit A as the "Owner Parcel." 1.2 Code Authorization. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted the Development Agreement Act which authorizes any city to enter into binding development agreements establishing certain development rights in real property with persons having legal or equitable interests in such property. To ensure that the City remains responsive and accountable to its residents while pursuing the benefits of development agreements contemplated by the Legislature, the City: (i) accepts restraints on its police powers contained in this Agreement consistent with existing law, only to the extent and for the duration required to achieve the mutual objectives of the Parties; and (ii) to offset such restraints, seeks extraordinary and significant public infra structure facilities and other supplemental benefits, as set forth in Section 5.1, in addition to those available through the existing regulatory process. 1.3 Owner. Owner represents and warrants that it owns the Owner Parcel and is under contract to purchase the Fried Parcel. The Property is currently a mix of vacant and occupied uses. 1.4 Planning Commission -Council Hearings. On May 23, 2005, the Planning Commission of the City ("Planning Commission"), after giving notice pursuant to Government Code Sections 65090 and 65091, held a public hearing to consider the Owner's application for this Agreement. The Planning Commission recommended to the City Council of City that it execute this DOCSOC/1110339x1 ]/24579-0001 75A-14 Agreement. On June 20, 2005, the City Council of the City of Santa Ana ("Council"), after providing notice as required by law, held a public hearing to consider the Owner's application for this Agreement. 1.5 Council Findings. The Council finds that this Agreement is consistent with the General Plan, applicable Specific Plan(s) as well as all other applicable ordinances, plans, policies and regulations of the City. 1.6 City Ordinance. On July 5, 2005, the Council adopted Ordinance No. NS-2691 approving this Agreement. The ordinance becomes effective thirty (30) days thereafter (the "Effective Date"). 2. DEFINITIONS. In the Agreement, unless the context otherwise requires: 2.1 "Affiliate" means any entity of which not less than fifty percent (50%) is owned by (i) Owner and/or its managing member and/or Nexus, in the case of Owner or (ii) Integral or the principal shareholders of Integral, in the case of Integral. 2.2 "Agreement" means this Development Agreement, including all exhibits attached hereto and all amendments and modifications thereto. 2.3 "Annual Review" means the annual review process as described in Section 6 of this Agreement. 2.4 "Applicable Rules" means all rules, regulations, ordinances and official plans and policies of the City in force as of the Effective Date as included within the SAMC, this Agreement and the Entitlements. 2.5 "Applicable Processing Fees and Charges" means all processing fees and charges required by the City uniformly in connection with all new construction, including, but not limited to, fees for land use applications, project permits, building applications, building permits, grading permits, encroachment permits, tract or parcel maps, lot line adjustments, air right lots, street vacations, certificates of occupancy and other similar permits. Applicable Processing Fees and Charges shall not include Development Impact Fees or any exaction, impact fee, sharing fee or other fee or charge that is in the nature of a Development Impact Fee. 2.6 "Avigation Easement" means the Avigation Easement attached hereto as Exhibit E and incorporated herein by reference. 2.7 "Breach" is defined in Section 7.2. 2.8 "Cinema Tower" is defined Section 2.43. 2.9 "City Agency" means each and every agency, department, board, commission, authority, employee, and/or official acting under the authority of the City, including without limitation the City Council and the Planning Commission. 2.10 "City Attorney" means the City Attorney of the City. 2 DOCSOC/ 1110339v 11 /24579-0001 75A-15 2.11 "City Council" means the City Council of the City which is the legislative body of the City pursuant to Section 65867 of the California Government Code. 2.12 "City Manager" means the chief administrative officer of the City. 2.13 "Condo-Office Project" is defined in Section 2.44. 2.14 "Commencement of Construction" means the point in time when concrete is being poured for foundations for a particular Element pursuant to a validly issued permit. 2.15 "Cooperative Agreement" means the Cooperative Agreement for Offsite Improvements attached hereto as Exhibit C and incorporated herein by reference, which Cooperative Agreement and the obligations hereunder with respect thereto, shall survive termination of this Agreement. 2.16 "Default" is defined in Section 7.2. 2.17 "Development Agreement Act" means Article 2.5 of Chapter 4 of Division I of Title 7 (Sections 65864 through 65869.5} of the California Government Code. 2.18 "Development Impact Fees" means impact fees, linkage fees, exactions, or fair share charges or other similar impact fees or charges (whether collected as a condition to issuance of demolition, grading and/or building permits, or otherwise) imposed by the City on and in connection with new development pursuant to the Applicable Rules. If at any time following the Effective Date it becomes legal for any of the foregoing fees or charges to be collected with property taxes, then any such amounts collectible in such manner shall constitute Development Impact Fees hereunder. Development Impact Fees do not include (a) Applicable Processing Fees and Charges, (b) impact fees, linkage fees, exactions, assessments or fair share charges or other similar fees or charges imposed by other governmental entities and which the City is required to collect or assess pursuant to applicable law (e.g., school district impact fees pursuant to Government Code Section 65995), or (c) increases in Development Impact Fees under the Applicable Rules, occurring after the Effective Date but only if and to the extent any such increase does not exceed the amount of such Development Impact Fee as of the Effective Date increased at a rate not to exceed the rate of increase established by the "Construction Costs Index- Los Angeles" published by Engineering News-Record or substitute index mutually agreed upon by the parties should that index be discontinued, from the Effective Date to the date such Development Impact Fee is paid. 2.19 "Effective Date" means August 4, 2005, the date upon which the ordinance approving this Agreement becomes effective. 2.20 "Element" is defined in 2.43. 2.21 "Entitlements" mean the City approvals for the Project granted pursuant to the Applicable Rules as set forth in detail in the Final Environmental Impact Report for Environmental Review No. 2004-02; Tentative Tract Map Nos. 2005-02, 2005-03, 2005-04 (County Map Nos. 16621, 16622 and 16626); Variance Nos. 2005-05, 2005-07, 2005-10, and 2005-12; Zoning Ordinance Amendment No. 2005-01 (creating Specific Development No. 76 aka SD-76); Conditional Use Permit Nos. 2005-10, 2005-11, 2005-12, 2005-13 and 2005-15; and the "MacArthur Place Master Plan" dated April 11, 2005, as each are conditioned in City Council Resolution 3 DOCSOC/] ] 10339x11/24579-0001 75A-16 No. 2005-064. The parties understand and acknowledge that the implementation of the Entitlements will require Subsequent Development Approvals, the approval, conditional approval or rejection of which shall be in accordance with the Applicable Rules. The word "Entitlements" shall include an interior design standard for all Residential Units of 42 dBA CNEL for purposes of attenuating noise, to be met with all of the unit's windows and doors closed. For each Element that incorporates Residential Units, a qualified acoustical consultant shall conduct an analysis demonstrating compliance with said interior noise design standard to be submitted to the City's Building and Planning Safety Agency for review and approval prior to the issuance of Utility Release(s). 2.22 "Final Design Documents" means the final design documents for the Public Art consistent with the Public Art Plans. 2.23 "Fried Portion" is defined in Section 2.43. 2.24 "Integral" means Integral Communities I, a Delaware Corporation. 2.25 "General Plan" means the General Plan of the City. 2.26 "Inclusionary Housing Fee" is defined in Section 5.1.8. 2.27 "In-Lieu Park Fee" is defined in Section 5.1.9. 2.28 "Litigation" shall mean any lawsuit or cross-action, including the legal action and/or alternative dispute resolutions described in Section 7, challenging the validity of this transaction or any Element thereof or the rights of either party hereunder and/or the rights of either party to engage in the acts and transactions contemplated by this Agreement. 2.29 "Mezzanine Lender" means a lender who provides funds for the construction of the Project, or parts thereof, and takes a security interest in an asset other than the Property or Project such as the ownership interest of the Owner in the Property or Project. 2.30 "Mortgage" means any mortgage, deed of trust, pledge, encumbrance, sale leaseback, or other security interest with respect to the Property and/or Project and/or the interests of the Owner in the Property and or Project and/or this Agreement, granted to a lender not affiliated with Owner, made in good faith and for fair value, encumbering all or any part of the Property and/or Project or Owner's interest in the Property and/or Project and/or this Agreement, given by Owner for the purpose of obtaining construction financing of the Project, or any portion thereof. 2.31 "Mortgage Parcel" is defined in Section 8.1. 2.32 "Mortgagee(s)" means (i) any institutional lender that is a mortgagee or beneficiary under a deed of trust, (ii} a Mezzanine lender and/or (iii} any person or entity acquiring fee title under a first or second mortgage who has delivered a Mortgagee Notice to the City or any transferee of the above. 2.33 "Mortgagee Notice" is defined in Section 8.2. 2.34 "Nexus" means Nexus Development Corporation/Central Division, Inc., a California Corporation. 4 DOCSOC/ l 110339v 11 /24579-0001 75A-17 2.35 "Notice" and "Notice Period".are defined in Section 7.2. 2.36 "Owner" means GP1, GP2 and/or permitted assignees or transferees each with respect to the part of the Property owned by it. 2.37 "Owners' Association(s)" means the association of owners of the Residential Units ("Homeowners' Association(s)) and/or associations formed by the owners of the retail portions and/or office portions of the Project formed for the purpose of governing and controlling the common areas associated with each Element and the Project, as a whole. 2.38 "Parties" means collectively Owner and the City. 2.39 "Party" means any one of Owner or the City. 2.40 "Plaintiff 'means any party seeking relief or compensation through Litigation whether as plaintiff, petitioner, cross-complainant or otherwise. 2.41 "Planning Commission" means the Planning Commission of the City and the planning agency of the City pursuant to Section 65867 of the California Government Code. 2.42 "Periodic Review" is defined in Section 6.1. 2.43 "Project" is the development of the Property pursuant to the Entitlements, with the following: (1) Three (3) twenty-five (25) Story Towers consisting of two (2) towers with three hundred fifty (350) for sale residential condominium units (each a "Lake Tower" or together the "Lake Towers") and One (1) tower with one hundred fifty (150) for-sale residential condominium units (the "Cinema Tower"); {2) A six (6) story tower consisting of fifteen (15) for-sale residential condominium units on four (4) floors and approximately ten thousand (10,000) square feet of office on two (2) floors (the "Condo/Office Project"); (3) A five (5) or six (6) story building containing two hundred seventy- six (276) for-sale residential condominium units (the "Integral Project"); and (4) Approximately thirteen thousand eight hundred seventy-one (13,871) square feet of commercial space consisting of approximately eight thousand five hundred eighty (8,580) square feet of restaurant ("Restaurant Portion") and approximately five thousand two hundred ninety (5,290) square feet of retail (the "Fried Portion"). The Restaurant Portion and Fried Portion are collectively referred to herein as the "Retail Project". Each of the Lake Towers, the Cinema Tower, the Condo/Office Project, Integral Project and the Retail Project are each an "Element." 5 DOCSOC/ 111033 9v 11/24579-0001 75A-18 2.44 "Property" is legally described in Exhibit A. 2.45 "Public Art" is defined in Section 5.1.7. 2.46 "Public Art Fee" is defined in Section 5.1.7. 2.47 "Public Art Plan" is set forth in Exhibit B attached hereto and incorporated herein by reference. 2.48 "Public Improvements" are described in Exhibit D attached hereto and incorporated herein by reference. 2.49 "Reserved Powers" means the rights and authority excepted from this Agreement's restrictions on the City's police powers and which are instead reserved to the City. The Reserved Powers include the power to enact and implement rules, regulations, ordinances and policies after the Effective Date that are not in conflict with the Applicable Rules or that may be in conflict with the Applicable Rules, but: (a) prevent or remedy conditions which the City has found to be injurious or detrimental to the public health and/or safety; (b} are Uniform Codes; (c) are required to comply with mandates under state and federal laws, rules and regulations (whether enacted previous or subsequent to the Effective Date) or to comply with a court order or judgment of a state or federal court; (d) relate to Applicable Processing Fees or Charges imposed and/or increased after the Effective Date; (e) or relate to increases in Development Impact Fees occurring after the Effective Date but only if and to the extent described in Section 2.17(c), or (f) are consented to by Owner. Project. 2.50 "Residential Unit(s)" means each of the for-sale residential units within the 2.51 "Retail Project" is defined in Section 2.43. 2.52 "Restaurant Portion" is defined in Section 2.43. 2.53 "SANG" means the Santa Ana Municipal Code. 2.54 "Signs" means the gateway entry signs described in Section 5.1.7. 2.55 "Subsequent Development Approvals" means those certain actions taken by any City Agency after the Effective Date, in connection with the implementation of the Entitlements or any approved modification of the Entitlements, or any requested minor modifications of the Entitlements. 2.56 "Term" means the applicable period of time during which this Agreement shall be in effect and shall bind the City and Owner, as described in Section 4.1. 2.57 "Uniform Codes" means those building, electrical, mechanical, fire and other similar regulations of a City-wide scope which are based on recommendations of a multi-state professional organization and become applicable throughout the City, such as, but not limited to, the California Building Code, the California Electrical Code, the California Mechanical Code, or the California Fire Code (including those amendments to the promulgated Uniform Codes which reflect 6 DOCSOC/] 110339vi 1/24579-0001 75A-19 local modification to unplement the published recommendations of the multi-state organization and which are applicable City-wide) 2.58 "Utility Release(s)" means the formal approval of the City Building Department, following its inspection, that Residential Unit(s) may be released for initial connection to the electrical power system, water service system, gas service system, and sanitary sewer system. Utility Release(s) do not include temporary utility service provided to any structure during construction. 2.59 "Work(s) of Public Art" is defined in Section 5.1.7. 3. EXHIBITS. The following documents referred to in the Agreement are attached to this Agreement and are identified as follows: Exhibit Designate Description A Property Legal Description B Public Art Plan C Cooperative Agreement for Off-Site Improvements D Public Improvements E Avigation Easement F Lake Improvements 4. GENERAL PROVISIONS. Referred to in Section(s) 1.1.1(2), 2.44 2.46, 5.1.7 2.15, 5.1.1 2.47, 5.1.2 2.6, 5.1.5 5.1.12 4.I Duration of Agreement. The term of this Agreement shall be for ten (10) years; provided, however that the Owner may request one two-year extension from the Executive Director of the Planning and Building Safety Agency, which request shall not be unreasonably denied and provided further that this Agreement shall automatically terminate upon the latter to occur of (i) completion of construction of the entire Project or (ii) the granting of Certificates of Occupancy (or similar permission to occupy) for the final Element of the Project and sale of all Residential units. 4.2 Assignment. Except as provided in Section 4.3 and prior to completion of the Project or any Element thereof, Owner (and/or Integral with respect to the Integral Project, if owner assigns the Integral Project to Integral) shall not have the right to transfer or assign this Agreement with respect to all or any portion of the Property to any person, entity (public or private), partnership, joint venture, firm or corporation unless the written consent of the City is first obtained, acting in its reasonable discretion. In exercising its reasonable discretion, the City shall limit its review to the development experience and financial capability of the proposed assignee or transferee and shall approve any such assignment or transfer if the proposed assignee or transferee has financial capability and development experience with respect to the Project equal to or greater than the managing member of Owner (or Integral in the case of the Integral Project after assignment of the Integral Project). Any transfer or assignment of rights under (i) Section 4.3, or (ii) requiring City Council consent under this Section 4.2 shall include an assignment and assumption agreement confirming that the duties obligations and liabilities arising from this Agreement with respect to all or any portion of the Property shall be assumed by the transferee. To the extent permitted by law, the rights of the Owner hereunder shall not be subject to assignment by attachment, execution, or 7 DOCSOC/1110339v 11 /24579-0001 75A-20 proceedings under any provisions of the Bankruptcy Act, and such assignment or transfer shall be, to the extent permitted by law wholly void and of no force and effect unless such assignment or transfer has been consented to by the City Council. During the term of this Agreement, any approved assignee or transferee of the rights under this Agreement shall observe and perform all of the duties and obligations of Owner contained in this Agreement as such duties and obligations pertain to the portion of the Property transferred or assigned. Any and all approved successors and assignees of Owner shall have all of the same rights, benefits, duties, obligations, and liabilities of Owner under this Agreement. If the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for development by them in accordance with the provisions of this Agreement. Following a permitted assignment herewith the assignor shall have no further rights or obligations with respect to the Project or Element assigned, as the case may be. 4.3 Permitted Assignments. The prohibition against transfer of this Agreement with respect to all or any portion of the Property as described in Section 4.2 above shall not apply to, and the City hereby consents to, any transfer of this Agreement with respect to all or any portion of the Property to: a. Any business entities such as limited partnerships, limited liability companies, joint ventures or other similar entities formed for the purpose of performing Owner's obligations under this Agreement, provided Owner, Nexus and/or Curtis R. Olson retains operational and managerial control of any such entity. b. Nexus and/or Curtis R Olson or any Affiliate. c. One or more Mortgagees. d. Integral or any Affiliate thereof with respect to the Integral Project or any single purpose entity created by Integral, or any Affiliate thereof, formed for the purpose of constructing the Integral Project. e. DF#1 LLC, David R. Fried, and/or A&D Properties, and/or any company or corporation more than fifty percent (50%) owned by DF#1 LLC, David R. Fried and/or A&D Properties. f. Buyer's of Residential Units. g. Owners' Association(s) with respect to common areas. h. Tenants, ground lessees and/or purchasers of the retail and/or office spaces. 4.4 Amendment or Cancellation of Agreement. This Agreement may be amended from time to time or cancelled by the mutual consent of the parties, but only in the same manner as its adoption by an ordinance as set forth in Government Code Section 65868. The term "Agreement" or "Development Agreement" as used herein shall include any amendment properly approved and executed. DOCSOCl1 l 10339v 11/24579-0001 75A-21 4.5 Hold Harmless. Owner agrees to and shall hold City, its officers, agents, employees, consultants, special counsel, and representatives harmless from liability for damages, restitution, judicial or (to the extent legally possible) equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from construction activities with respect to the Project by the Owner or their contractors, subcontractors, agents, employees, or other persons acting on their behalf; the Owner further agrees to provide a defense on behalf of the City, including fees and costs for special counsel to be selected by the City and approved by the Owner, regarding any Litigation. Notwithstanding the above, in the event of any Litigation the parties hereby agree to affirmatively cooperate in defending said action. 4.6 Binding Effect of Agreement. The burdens of the Agreement bind, and the benefits of the Agreement inure, to the parties' successors in interest. 4.7 Relationship of the Parties. The contractual relationship between City and Owner arising out of the Agreement is one of independent contractor and not agency. This Agreement does not create any third party beneficiary rights. 4.8 Notices. Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: If to City, to: City Manager City of Santa Ana 20 Civic Center Plaza M-31 P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6954 and City Attorney City of Santa Ana 20 Civic Center Plaza M-29 P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 If to Owner, to: Cory W. Alder President, Nexus Companies 1 MacArthur Plaza, Suite 300 Santa Ana, California 92707 telefacsimile (714) 546-5660 9 DOCSOC/1110339v] 1/24579-0001 75A-22 and Matt Kaufinan Senior Vice President, Development and Operations Nexus Companies 1 MacArthur Plaza, Suite 300 Santa Ana, California 92707 telefacsimile (714) 546-5660 and Thomas P. Clark, Jr., Esq. Stradling Yocca Carlson & Rauth 660 Newport Center Drive, Suite 1600 Newport Beach, California 92660 telefacsimile (949) 725-4100 and R. Michael Joyce, Esq. Allen Matins beck Gamble & Mallory LLP 1900 Main Street, 5th Floor Irvine, California 92614-7321 telefacsimile (949) 553-8354 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County, or city holidays shall be excluded. 5. DEVELOPMENT OF THE PROPERTY. 5.1 Owner Obligations. In consideration for the City entering into this Agreement and performing its obligations hereunder and in order to effectuate the premises, purposes and intentions set forth in this Agreement and the Development Agreement Act, Owner hereby agrees to the following obligations. 5.1.1 Cooperative Agreement. The Owner and the City, together with other parties, have concurrently executed the Cooperative Agreement. Owner agrees to comply in all respects with its obligations under said Cooperative Agreement. 5.1.2 Public Improvements. Owner shall construct the Public Improvements prior to the issuance of a Certificate of Occupancy for the first Element unless otherwise approved by the Director of Public Works. 10 DOCSOC/1110339v I I /24579-0001 75A-23 5.1.3 Phasing. The Owner acknowledges and agrees that the Commencement of Construction of the Integral Project cannot commence until the Commencement of Construction has occurred on either of the Lake Towers or the Cinema Tower. 5.1.4 FAA Approval. Owner shall obtain and maintain, during the term of this Agreement, any and all necessary approvals from the FAA for the Project. Should such approvals lapse, and not be reinstated or reapproved prior to the issuance of a building permit for either of the Lake Towers and/or Cinema Tower, the City shall have the right to delay the issuance of building permits for either of the Lake Towers and/or Cinema Tower until such approvals are reinstated or reapproved. 5.1.5 Avigation Easement. The Owner shall, prior to issuance of the ftrst building permit for the Project, execute the Avigation Easement in favor of the City. Owner and City may make non-substantive alterations in the Avigation Easement prior to its execution, to the extent such changes are approved by Owner and City (as to content by the City Manager, and as to form by the City Attorney). 5.1.6 Limit on Fast Food and Take Out Restaurants. At no time during the Term shall the Project include retail space which is devoted to "fast food" and "take out" restaurants. For purposes of this Agreement, a restaurant shall not be deemed to be a "fast food" or "take out" restaurant if it provides sit-down dining areas and primary table service for ordering and delivering meals and beverages, and take out service ancillary to such services. 5.1.7 Development, Construction and Completion of Public Art. Owner shall include within the Project, (i) two (2) gateway entry signs ("Signs"), and (ii) a single or grouped permanent work(s) of public art ("Work(s) of Public Art") consistent with the Public Art Plan ( ollectively referred to herein as the "Public Art") at a cost not to exceed Five Hundred Thousand Dollars ($500,000) ("Public Art Fee"). 5.1.8 Inclusionary Housing Fee. Owner shall pay to the City the sum of Three Thousand Dollars ($3,000) for each Residential Unit contained in each Element ("Inclusionary Housing Fee"). The Inclusionary Housing Fee shall be paid with respect to each Element containing Residential Units at such time as 75% of the Residential Units within such Element have received Utility Releases. The Inclusionary Housing Fee shall be used by the City for planning (including but not limited to preparation of one or more elements of its general plan or for zoning amendments), conceptual design, final design, bid preparation, award of bid, property appraisal, property acquisition, relocation, lost goodwill, and/or construction of new or substantially rehabilitated existing affordable housing in the City. 5.1.9 In-Lieu Park Development Fee. The Owner shall pay an in-lieu park development fee in the amount of Two Million Six Hundred Thousand Dollars ($2,600,000) with respect to the Residential Units within the Project ("In-Lieu Park Development Fee") payable for each Element in which Residential Units are located at such time as 75% of the Residential Units within such Element have received Utility Releases, based on a fraction the numerator of which is the total number of Residential Units in an Element and the denominator of which is the total number of Residential Units in the Project. The City shall use not more than twenty five percent (25%) of the In-lieu Park Development Fee for the acquisition of the land for parks and the construction of capital 11 DOC SOC/ 1 110339v 11 /24579-0001 75A-24 improvements and deferred maintenance at existing pazks at any location within the City and not less than seventy five percent (75%) of the In Lieu Park Development Fee shall be utilized by the City in the Quadrant of the City (as set forth in the City's Park A & D Fee Program) in which the Project is located. If a special tax district, benefit assessment district or other obligation is created for park purposes, inclusionary housing purposes and/or to fulfill any obligation under the Cooperative Agreement such district or other obligation shall not include the Property. 5.1.10 Covenants, Conditions, and Restrictions. Covenants, Conditions, and Restrictions (CC&R's) must be provided and approved by the Planning and Building Agency's Executive Director for the Project prior to the issuance of the first building permit. Such CC&R's must contain at a minimum, the following: (1) To the extent permitted by law, no more than four residents shall occupy a Residential Unit with less than three (3) bedrooms and no more than five (5) residents shall occupy a Residential Unit with three (3) bedrooms. (2) No home occupancy shall be permitted in a unit, except in accordance with Section 41-192 et seq. of the Santa Ana Municipal Code. (3) Assignment of repair of perimeter walls and common azeas, including landscaping, will be specified in the CC&R's in the event of damage. (4) Patios and balconies shall not be utilized for the storage of household items, except (A) furniture designed for outdoor use, (B) barbecues, and (C) plants including plant racks and stands. (5) Disclosure and release: CC&R's shall provide notice to prospective owners of the urban character of the City and this area, including but not limited to the permitted uses of the property and buildings in the immediate area of the development (e.g., MacArthur Place, Griffin Towers, John Wayne (SNA) Airport, and surrounding property zoned and/or devoted to high density residential and commercial use), and shall provide a release of claims against the City by the buyer of each Residential Unit which may arise from or relate to the disclosed matters. (6) Terms and Content: i. CC&R's are to be in effect for an initial period of ninety-nine years and then automatically expanded for successive one hundred year periods unless terminated by the joint consent of the City and not less than seventy five percent of those entitled to vote. ii. Any proposed material modifications to the CC&R's which effect the City's interests will require approval by the Executive Director of Planning and Building Safety Agency. 5.1.11 Parking Structure Easement. Owner shall assign any and all rights it has to use the "Teacher's" parking structure located on Assessor's Parcel Number 411-081-22, together with any transfer or assignment of the Restaurant Portion. 12 DOCSOC/ 1110339v 11 /24579-0001 75A-25 5.1.12 Lake Improvements. Owner shall use commercially reasonable efforts to obtain approval of the Hutton Centre Owners' Association to install the lake improvements specified in Exhibit F to this Agreement. 5.1.13 Use of "City of Santa Ana." All advertising, stationary and other identification of the Project controlled by Owner shall identify it as being located in the "City of Santa Ana" or "Santa Ana." The postal address of the project shall at all times be denominated as "Santa Ana, California." 5.1.14 Compliance With Governmental Requirements. Owner shall carry out the design and construction of the Project in substantial conformity with the .Applicable Rules and all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, or any other political subdivision in which the Property is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City, the Owner or the Property, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, and all applicable disabled and handicapped access requirements, including, without the limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code §4450 et seq., and the Unruh Civil Rights Act, Civil Code § 51 et seq. ("Governmental Requirements"}. 5.1.15 Obligation to Submit Working Drawings and Commence Construction. Owner shall submit building permit applications for the first Element of the Project to the City's Building Department on or before the third (3`~} anniversary date of the Effective Date and Commencement of Construction of the fast phase Element shall occur on or before the sixth (6`'') anniversary date of the Effective Date. 5.2 City Obligations. In consideration for Owner entering into this Agreement and performing its obligations hereunder and in order to effectuate the purposes and intentions set forth in this Agreement and the Development Agreement Act, the City hereby agrees during the Term as follows: 5.2.1 Vested Rights to Develop. Owner is hereby granted the vested right to develop the Project subject to the terms and conditions of the Applicable Rules and the Reserved Powers. 5.2.2 Non-application of Changes in Applicable Rules. Any change in, or addition to, the Applicable Rules, including, without limitation, any change in the General Plan, zoning ordinance, subdivision ordinance, or building regulation adopted or becoming effective after the Effective Date, including, without limitation, any such change by means of ordinance, initiative, referendum, resolution, motion, policy, order or moratorium, initiated or instituted for any reason whatsoever, however denominated, and adopted by the City Council, Planning Commission or any City Agency, or by the electorate, as the case may be, which would, absent this Agreement, otherwise be applicable to the Project and which would conflict with the Applicable Rules, shall not be applied to the Project unless such changes represent an exercise of the City's Reserved Powers or are otherwise expressly allowed by this Agreement. In the event that state or federal laws or regulations enacted after this Agreement has been entered into, prevent or preclude compliance with one or more provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. 13 DOCSOC/1110339v 11 /24579-0001 75A-26 5.2.3 Special Taws and Assessments. Owner shall have the right, to the extent permitted by law to protest, oppose and vote against any and all special taxes, assessments, levies, charges and/or fees imposed with respect to any assessment districts, Mello-Roos or community facilities districts, maintenance districts or other similar districts. 5.2.4 Agreed Changes and Other Reserved Powers. This Agreement shall not preclude application to the Project of rules, regulations, ordinances and officially adopted plans and policies in conflict with the Applicable Rules where such additional rules, regulations, ordinances and officially adopted plans and policies (a) are mutually agreed to in writing by Owner and the City in accordance with the requirements of Section 6.7 of this Agreement or (b) result from the Reserved Powers. 5.2.5 Subsequent Development Approvals. The City shall require Owner to obtain only those Subsequent Development Approvals that are required by the Applicable Rules or the Reserved Powers. City hereby agrees that it shall .condition any Subsequent Development Approvals based only on the Applicable Rules and/or Reserved Powers. 5.2.6 Moratoria. In the event an ordinance, resolution or other measure is enacted, whether by action of the City, by initiative, or otherwise, which relates to the rate, amount, timing, sequencing, or phasing of the development or construction of the Project on all or any part of the Property, City agrees that, unless required by applicable state law, such ordinance, resolution or other measure shall not apply to the Project, Property or this Agreement, unless such changes are adopted pursuant to the City's exercise of its Reserved Powers or other applicable provision, of this Agreement. 5.2.7 Timing of Development. The parties acknowledge that Owner cannot at this time predict when or if the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Owner such as market orientation and demand, interest rates, absorption, completion and other similar factors. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the parties' intent to cure that deficiency by acknowledging and providing that except as provided in Section 5.1.3, and subject to Section 5.1.15, Owner shall have the right to develop the Property at such rate and at such time as Owner deems appropriate within the exercise of its subjective business judgment. 5.2.8 Development Impact Fees. Except as to increases permitted under Section 2.17(c), Development Impact Fees imposed by the City with respect to the Project shall be only those Development Impact Fees in force and effect as of the Effective Date. 5.3 Cooperative Agreement. The City shall comply in all respects with its obligations under the Cooperative Agreement. 6. ANNUAL REVIEW. 6.1 City and Owner Responsibilities. City shall, at least every twelve (12) months during the term of this Agreement, review the extent of good faith substantial compliance by Owner with the terms of this Agreement ("Periodic Review"). Pursuant to Government Code 14 DOCSOC/11 ]0339x11/24579-0001 75A-27 Section 65865.1, as amended, Owner shall have the duty to demonstrate by substantial evidence its good faith compliance with the terms of the Agreement at the Periodic Review. 6.2 Review Letter. If Owner is found to be in compliance with the Agreement after annual review, City shall, upon written request by Owner, issue a Review Letter to Owner (the "Letter") stating that based upon information known or made known to the City Council, the City Planning Commission and/or the City Planning Director, the Agreement remains in effect and Owner is not in default. Owner may record the Letter in the Official Records of the County of Orange. 6.3 Failure of Periodic Review. City's failure to review at least annually Owner's compliance with the terms and conditions of this Agreement shall not constitute or be asserted by any party as a breach of the Agreement by Owner or City. DEFAULT. 7.1 Events of Default by Owner. Owner is in Default under this Agreement upon the happening of one or more of the following events or conditions following notice and a failure to cure as set forth in Section 7.2: (1) If a written warranty, representation, or statement made or furnished by Owner to the City in conjunction with the Project is false or proves to have been false in any material respect when it was made; (2) A finding and determination made by the City following a Periodic Review under the procedure provided for in Government Code Section 65865.1 that upon the basis of substantial evidence the Property Owner has not complied in good faith with one or more of the terms or conditions of this Agreement; (3) Failure to substantially comply with Governmental Requirements; hereof. (4) The failure of Owner to comply with the requirements of Section 5.1 (5) Any other event, condition, act or omission of Owner which materially interferes with the intent and objectives of this Agreement. 7.1.2 Events of Default by City. City is in Default under this Agreement upon the happening of one or more of the following events or conditions following notice and a failure to cure as set forth in Section 7.2: (1) If a written warranty, representation, or statement made or furnished by City to the Owner in conjunction with the Project is false or proves to have been false in any material respect when it was made; hereof. (2) Failure of the City to comply with the provisions of Section 5.2. (3) Any other event, condition, act or omission of City Agency which materially interferes with the intent and objective of this Agreement, including, without limitation, the construction of the Project. 15 DOCSOC/ 1 110339v 11/24579-0001 75A-28 7.2 Procedure upon Breach. Upon the occurrence of any of the events described in Sections 7.1 and/or 7.1.2,and prior to termination (a "Breach"), the non-defaulting party shall give the defaulting party written notice specifying the nature of the alleged Breach and, when appropriate, the manner in which said Breach may be satisfactorily cured ("Notice"). If the defaulting party fails to cure within thirty (30) days after receipt of Notice ("Notice Period"), or in a case where a Breach cannot be reasonably cured within such Notice Period, fails to commence such cure within the Notice Period andlor, thereafter, fails to diligently pursue such cure to completion then the defaulting, party is in "Default". Failure or delay in giving Notice shall not constitute a waiver of any Breach, nor shall it change the time of Default. 7.3 Termination. This Agreement may be terminated by either party in the event of Default by the other. Owner's obligation to pay the fees set forth in Sections 5.17, 5.18 and 5.19 of this Agreement shall survive termination, if termination is due to Owner's Default. 7.4 Damages and Remedies. (1) In no event shall either party be entitled to any damages against the other upon termination of this Agreement in the absence of a Default. (2) The Owner shall not be liable for any general, special or compensatory damages to City or the Owner's Default hereunder; provided however Owner shall be responsible for any Default under Sections 5.1.7, 5.1.8 and/or 5.1.9 but only to the extent of the fees set forth therein, without penalty, but including interest from the date such fees were due until paid at the same rate of interest imposed by the Orange County Superior Court as post judgment interest. (3) The City shall not be liable for any general, special or compensatory damages to Owner or to any successor or assignee or transferee of Owner for the City's Default hereunder. (4) In the event of the failure of the obligation described in Section 5.1.15, the City's sole remedy shall be termination. 7.5 Institution of Legal Action. In addition to any other rights or remedies, and except as provided in Section 7.4, either party may institute legal action to cure, correct, or remedy any Default, terminate or confirm or reject the propriety of a termination, specifically enforce any covenants or agreements set forth in the Agreement, or enjoin any threatened or attempted violation of the Agreement; or to obtain any remedies consistent with the purpose and term of the Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California, Southern Division. 7.6 Multiple Owners. Because the Project may be developed by Owner or by one or more assignees of Owner, the Parties acknowledge and agree that the provisions of this Section 7 relating to any Default by Owner with respect to its obligations, and the City's enforcement rights with respect thereto, including any rights of termination and the limited rights to seek damages, shall relate only to the portion of the Property actually owned by the specific Owner whose act or omission constituted such Default. Other portions of the Property owned by a different non- defaulting Owner (provided such non-defaulting Owner is not in Default hereunder with respect to its Property) and/or any other permitted assignee provided such permitted assignee(s) are not in Default hereunder with respect to its/their Property shall not be affected nor shall the rights of such non- 16 DOC SOC/ 1110339v 1 1 /245 79-000 1 75A-29 defaulting Owner or other assignee(s) hereunder be impaired by any such Default relating to the portion of the Property not owned by it. 7.7 Alternative Dispute Resolution. Owner may elect in its sole and absolute discretion, to have any legal disputes described herein determined by arbitration in Santa Ana, California, before a sole arbitrator in accordance with the laws of the State of California. The arbitration shall be administered by JAMS pursuant to its Streamline Arbitration Rules and Procedures. Judgment on the "award", as defined in Code of Civil Procedure Section 1283.4, may be entered in any court having jurisdiction. Each party shall bear its own costs. ARBITRATION NOTICE: BY INITIALING IN THE SPACE BELOW EACH PARTY IS AGREEING TO HAVE ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF OR RELATING TO THIS AGREEMENT DECIDED BY A NEUTRAL BINDING ARBITRATION, AND EACH PARTY IS GIVING UP ANY RIGHTS EACH SUCH PARTY MIGHT POSSESS TO HAVE THOSE MATTERS LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW EACH PARTY IS GIVING UP ITS JUDICIAL RIGHT TO DISCOVERY AND APPEAL. IF EITHER PARTY REFUSES TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, SUCH PARTY MAY BE COMPELLED TO ARBITRATE UNDER FEDERAL OR STATE LAW. THE PARTIES AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. EACH PARTY HAS READ AND UNDERSTANDS THE FOREGOING AND AGREES TO SUBMISSION OF ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF OR RELATING TO THIS AGREEMENT TO NEUTRAL BINDING ARBITRATION IN ACCORDANCE WITH THIS AG . EMENT. >~ Owner City The "award" shall be made by the arbitrator within sixty {60) days after the matter has been submitted to arbitration. Prior to the appointment of the arbitrator and within ten (10) days of the date of commencement of the arbitration the parties shall submit the dispute to JAMS for mediation. The parties will cooperate with JAMS and with one another in selecting a mediator from JAMS panel of neutrals, and then promptly scheduling the mediation proceedings. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. If the dispute is not resolved within thirty (30) days from the date of the submission of the dispute to mediation (or such later date as the parties may mutually agree in writing) the administration of the arbitration shall proceed forthwith while the mediation may continue, if the parties so agree. Unless otherwise agreed by the parties, the mediator shall be disqualified from serving as arbitrator in the case. Pendency of the mediation shall not preclude a party from seeking provisional remedies in aid of the arbitration from a court of appropriate 17 DOCSOC/ 1110339v 11 /24579-0001 75A-30 jurisdiction, and the parties agree not defend against any application for provision relief on the ground that a mediation is pending. 7.8 Interim Relief. In the event that Project, or any part, is delayed as a result of any action under Section 7.5 and/or Section 7.7, Owner's obligation to pay fees under Sections 5.1.7, 5.1.8 and/or 5.1.9 shall be suspended until such action is resolved in favor of continuing the Project. 7.9 Entitlements Survive Termination. The parties acknowledge that the Entitlements survive termination of this Agreement unless and until the City takes action, within its police power authority to modify and/or revoke all or any portion of such Entitlements, or unless and until termination of the Entitlements occurs automatically, if ever. Accordingly, if this Agreement is terminated and, provided that the Entitlements are not modified or revoked in accordance with the City police power, the City shall not collect and/or impose the fees set forth in Sections 5.1.7, 5.1.8 and/or 5.1.9 in connection with development pursuant to the Entitlements. 7.10 Miscellaneous. (1) City does not waive any claim of defect in performance by Owner, if on Periodic Review the City does not propose to modify or terminate this Agreement. (2) Non-performance shall not be excused because of a failure of a third person. (3) Adoption of a law or other governmental activity making performance by either party unprofitable or more difficult or more expensive does not excuse the performance of the obligation by the other party. 8. MORTGAGEE PROTECTIONS 8.1 Right to Owner/Notice/Multiple Mortgagees. Owner shall have the absolute right to encumber Owner's right, title and interest in, to and under this Agreement and the Property pursuant to one or more Mortgages. Because certain portions of the Project may be developed by one or more assignees, the Parties acknowledge and agree that different Mortgages may encumber the Property and that there may be a separate Mortgage in effect with respect to separate parcels within the Property. It is the intention of the Parties that the rights and protections granted in this Section 8 to each Mortgagee shall only apply to the parcels upon which such Mortgagee's Mortgage is a lien (each a "Mortgage Parcel"), and to the rights, privileges and obligations under this Agreement relating to such Mortgage Parcel. 8.2 Notice of Breach to Mortgagee or Deed of Trust Holders; Right to Cure. With respect to any mortgage or deed of trust granted by Owner as provided herein, whenever the City delivers any Notice or demand to Owner with respect to any Breach by Owner under this Agreement and if Owner fails to cure the Breach within the time set forth herein, the City shall deliver to each Mortgagee a copy of such notice or demand accompanied by a writing to the affect that Owner has failed to cure a Breach ("Mortgagee Notice"); provided that Owner or Mortgagee has provided City with addresses for such purpose. Each such Mortgagee shall (insofar as the rights granted by the City are concerned) have the right, at its option, within thirty (30) days after the receipt of the Mortgagee Notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such Breach and to add the cost thereof to the DOCSOC/1110339v 11 /24579-0001 18 75A-31 mortgage debt and the lien of its mortgage; provided, however if the Mortgagee is legally prevented from curing such Breach because of a bankruptcy by the Owner then the thirty (30) day period shall be tolled until such bankruptcy is confirmed or rejected. Nothing contained in this Agreement shall be deemed to permit or authorize such Mortgagee to take advantage of Owner's rights hereunder, or any portion thereof, without first having expressly assumed Owner's obligations to the City by written agreement reasonably satisfactory to the City. It is understood that a Mortgagee shall be deemed to have satisfied the thirty (30) day time limit set forth above for commencing to cure or remedy a Owner default which requires title and/or possession of the Site (or portion thereof) if and to the extent any such Mortgagee has within such thirty (30) day period commenced proceedings to obtain title and/or possession and thereafter the Mortgagee diligently pursues such proceedings to completion and cures or remedies the Breach, provided that, in such event, all noncurable Defaults shall be waived. 8.3 Mortgagee Not Obligated Under the Agreement. Unless a Mortgagee expressly assumes Owner's Obligations to the City in accordance with 8.2 above, no Mortgagee shall in any way be obligated by the provisions of this Agreement, nor shall any covenant or any other provision in this Agreement be construed so to obligate such Mortgagee. Nothing in this Agreement shall be deemed to construe, permit or authorize any such Mortgagee to devote the Mortgage Parcel to any uses or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. 8.4 No Liability. No Mortgagee shall have any personal liability beyond its interest in the Mortgage Parcel acquired by it through enforcement of its Mortgage for the performance or payment of any covenant, liability, warranty or obligation hereunder, and the City agrees that it shall look solely to the interests of such Mortgagee in such Mortgage Parcel for payment or discharge of any such covenant, liability, warranty or obligation. 8.5 No Amendment or Termination. This Agreement shall not, without the prior written consent of all Mortgagees holding Mortgages on each portion of the Property to be affected thereby, be amended so as to (a) terminate this Agreement prior to the expiration of the Term hereof (except as provided in Section 8.4 above with respect to such Property); or (b) change any provision of this Agreement which, by its terms is specifically for the benefit of Mortgagees or specifically confers rights on Mortgagees. No amendment to this Agreement affecting the Property or any part thereof, made without the consent of any Mortgagee holding a Mortgage on such Property, or any part thereof, shall be binding upon such Mortgagee or its successors in interest should it become a party hereto. 8.6 Condemnation or Insurance Proceeds. Nothing in this Agreement shall impair the rights of any Mortgagee, pursuant to its Mortgage, to receive insurance and/or condemnation proceeds which are otherwise payable to Owner granting such Mortgage. 8.7 Title by Foreclosure. Except as otherwise set forth herein, all of the provisions contained in this Agreement applicable to any of the Mortgage Parcel shall be binding on and for the benefit of any person who acquires title to the property, or any part thereof, by foreclosure under a Mortgage or transfer by deed in lieu. 8.8 Delegation to Mortgagee. Owner may delegate and/or assign irrevocably to any Mortgagee the non-exclusive authority to exercise any or all of Owner's obligations and/or rights hereunder with respect to the Mortgage Parcel, but no such delegation shall be binding upon the City 19 DOCSOC/ 1110339v 11124579-0001 75A-32 unless and until either Owner or such Mortgagee shall give to the City a true and correct copy of a written instrument effecting such delegation. Such delegation of authority may be effected by the terms of the Mortgage itself, in which case service upon the other Party of an executed counterpart or conformed copy of said Mortgage, together with written notice specifying the provisions therein which delegates such authority to said Mortgagee, shall be sufficient to give such other Party notice of such delegation. No such delegation or assignment shall relieve the Owner of that Mortgage Parcel of any of its obligations hereunder with respect to such Mortgage Parcel. 8.9 No Obligation to Cure. Nothing herein contained shall require any Mortgagee to cure any default of Owner referred to above. 8.10 Separate Agreement. The City shall, upon request, execute, acknowledge and deliver to each Mortgagee requesting same, an agreement prepared at the sole cost and expense of Owner, in form satisfactory to such Mortgagee and the City, between the City and the Mortgagees, agreeing to all of the provisions hereof, provided Owner pays for all legal and other consulting costs incurred by City in reviewing same. 8.11 Estoppel Certificate. Within thirty (30) days after written request therefore, the City shall execute and deliver to any proposed Mortgagee in connection with its new Mortgage and to such Mortgagee thereafter from time to time an estoppel certificate in form and substance satisfactory to Owner and such Mortgagee ("Estoppel Certificate"). The City hereby agrees to reasonably cooperate in including in any such Estoppel Certificate from time to time any provision which may reasonably be requested by any proposed Mortgagee for the purpose of implementing the Mortgagee protection provisions contained in this Section 8 and allowing such Mortgagee reasonable means to protect or preserve the lien and security interest of its Mortgage hereunder, clarifying the non-applicability of the provisions of this Agreement to such Mortgagee as it relates to parcels other than the Mortgage Parcel, and/or such other terms and provisions as are customarily required by Mortgagees (taking into account the customary requirements of their participants, syndication partners or ratings agencies) in connection with any such financing; provided, however, that no such Estoppel Certificate shall in any way materially adversely affect any rights of the City or increase any obligations of City under this Agreement. 8.12 Conflicts. If there is any conflict between this Section 8 and any other provision contained in this Agreement, this Section 8 shall control 9. MISCELLANEOUS PROVISIONS. 9.1 Rules of Construction. The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory; "may" is permissive. If there is more than one signer of this Agreement, their obligations are joint and several. 9.2 Entire Agreement, Waivers and Amendments. This Agreement constitutes the entire understanding and Agreement of the parties with respect to the matters set forth in this Agreement. This Agreement supersedes all negotiation or previous Agreements between the parties respecting this Agreement. All waivers of the provision of this Agreement must be in writing and signed by the appropriate authorities of City or of Owner. All amendments to this Agreement must be in writing signed by the appropriate authorities of City and Owner, in a form suitable for recording in the Official Records of Orange County, California. Within ten (10) days following the effective date of this Agreement, a copy of this Agreement shall be recorded in the Official Records 20 DOCSOC/1110339v] 1/24579-0001 75A-33 of Orange County, California. Upon the completion of performance of this Agreement with respect to the completion of construction of each Element or its revocation or termination, an appropriate Certificate of Completion acknowledging such occurrence signed by the appropriate agents of Owner and City shall be recorded in the Official Records of Orange County, California. 9.3 Project as a Private Undertaking. It is specifically understood by the parties that: (a) the Project is a private development for purposes of Government Code Section 65864 et seq.; (b) City has no interest in or responsibilities for or duty to third parties concerning any improvements to the Property or in connection with the Project; and (c) Owner shall have the full power and exclusive control of the Property subject to the obligations of Owner set forth in this Agreement. 9.4 Incorporation of Recitals. The Recitals set forth in Section 1 of this Agreement are part of this Agreement. 9.5 Captions. The captions of this Agreement are for convenience and reference only, and shall not define, explain, modify, construe, limit, amplify, or aid in the interpretation, construction, or meaning of any of the provisions of this Agreement. 9.6 Consent. Unless another standard is specifically given, where the consent or approval of a party is required in or necessary under this Agreement, the consent or approval shall not be unreasonably withheld. 9.7 Covenant of Cooperation. The parties shall cooperate with, deal with each other in good faith, and assist each other in the performance of the provisions of this Agreement. 9.8 Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 9.9 Conflicts of Law. In the event that state or federal laws or regulations enacted after this Agreement has been entered into or the action or inaction of any other affected governmental jurisdiction prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps, or permits approved by the Ciry, the parties shall provide the other party with written notice of such state or federal restriction, provide a copy of such regulation or policy, and a statement of conflict with the provisions of this Agreement. The parties shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Thereafter, regardless of whether the parties reach an Agreement on the effect of such federal or state law or regulation upon the Agreement, the matter shall be scheduled for hearing before the Council. Public notice of such hearing shall be given pursuant to Government Code Section 65854.5. The City Council, at such hearing, shall determine the exact modification or suspension which shall be necessitated by such federal or state law or regulation pursuant to Government Code Section 65869.5. At the hearing Owner shall have the right to offer oral and written testimony. 9.10 Enforced Delay; Extension of Time of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in Default, and all performance and other dates specified in this Agreement shall be extended, where delays or Defaults are due to Litigation; inability to secure necessary labor materials or tools; or inability to secure debt and/or equity financing on commercially reasonable terms or withdrawal 21 DOCSOC/1110339v 11 /24579-000 ] 75A-34 of such financing not caused by any act or omission of Owner; war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; acts of terrorism; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; building moratoria; unusually severe weather; acts or omissions of the other party; acts or failures to act of any other public or governmental agency or entity (other than the acts or failures to act of the City which shall not excuse performance by the City); or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period reasonably attributable to the enforced delay and shall commence to run from the time of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of the Parties. 9.11 Recording. The City Clerk shall cause a copy of this Agreement to be recorded with the Office of the County Recorder of Orange County, California, within ten (10) days following the Effective Date of this Agreement. 9.12 Subdivision of Project. The City agrees that, pursuant to the Applicable Rules, Owner may modify the boundaries of existing lots of the Property within the Property by means of lot line adjustments. This Section 9.12 shall survive termination of this Agreement. 9.13 Severability. If any provisions, conditions, or covenants of this Agreement, or the application thereof to any circumstances of either Party, shall be held invalid or unenforceable, the remainder of this Agreement or the application of such provision, condition, or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. 9.14 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought and such waiver refers expressly to this Section. No waiver of any right or remedy in respect of any occurrence or event shall be deemed a waiver of any right or remedy in respect of any other occurrence or event. 9.15 No Personal Liability. No board member, councihnember, official or employee of the City shall be personally liable to Owner nor shall any individual, principal, partner, member or shareholder of Owner be personally liable to City in the event of any default or breach. 9.16 Conditions of Discretionary Approvals. Entitlements shall be governed by the terms of the approvals of such Entitlements and, in no event, shall such Entitlements be affected by the termination, rescission, revocation, Default or expiration of this Agreement. 9.17 Precedence. In the event of a conflict between the terms of this Agreement and the terms of the Entitlements, the terms of this Agreement shall prevail. 22 DOC SOC/ 1 110339v 11 /24579-0001 75A-35 IN WITNESS WHEREOF, this Agreement has been executed by the City of Santa Ana and by Property Owner. Dated this ~ day o , 200 B~ ATTEST: PATRiC/A E H~ALY CLERK 0'F 1'r.~ COUNC/L DOCSOC/ 1110339v 11 /24579-0001 THE CITY OF A AN By DAVID N. REAM City Manager THE GRAND PLAN I, LLC A California L' ited Liability Company By 'M~ ~fl .~-.~-- Name (u.Wi S tZ • G l5o v~ Its ~ P_vln ~~ THE GRAND PLAN 2, LLC A California "Lim/i~ted Liability Company By ~~v ~ Name Its MtVr-Ixa/ 23 75A-36 Approved as to Form: CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Orange } SS. On July 21, 2005, before me, Claudia M. Fernandez-Shaw, Notary Public, Name and Title of Officer (e.g., "Jane Doe, Notary Public") personally appeared David N. Ream .,,t CLAt1DIA M. FERt~u~n~:~~~-' Commission ~ 1336874 j'+~' Notary P~blia - Ca"~'on~(a Orange County I MYComm. Fires Jan 25,2006 U personally known to me ^ proved to me on the basis of satisfactory evidence to be the person( whose name(~s~~s are subscribed to the within instrument and acknowledged to me that-l~shefthey executed the same in l~is~herftlfeir authorized capacity(ies); and that by --~her~their- signature(~-on the instrument the persop(s~ or the entity upon behalf of which the persot~ acted, executed the instrument. ~ S my hand and official seal. Place Notary Seal Above OPTIONAL Though the information below is not required by law, it mayprove valuable to persons relying on the document And could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner -- ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Top STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE ) On this day of 200_, before me, a Notary Public in and for said state, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the City Manager of THE CITY OF SANTA ANA, the charter city that executed the within instnunent, known to me to be the person who executed the within instrument on behalf of the municipal corporation therein named, and acknowledged to me that such municipal corporation executed the within instrument pursuant to its bylaws or a resolution of its City Council. WITNESS my hand and ofFcial seal. STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE ) NOTARY PUBLIC On this ~ day of ~ un L 200 `.~ before me, h1tr~1Cu~ !; • l4f u firxtn, a Notary Public in and for said state, personally appeared C~,• i ~ ~ s (L. o l syv. ,personally known to me (or proved to me on the basis of satisfactory evidence) to be the x'1'1 a n'!~e/" of Tlit. ~i'Gn d /~/Ct ~'I /, L~L.C.', the e~ i ~~ that executed the within instrument, known to me to be the person who executed a within instrument on behalf of the municipal corporation therein named, and acknowledged to me that such municipal corporation executed the within instrument pursuant to its bylaws or a resolution of its Board. WITNESS my hand and official seal. MATTt1EW 8. KAU cow. s t~ss7o NorNer nNUC. cK~~ owwce counn comm. Exp. ,lU1.Y 22 Zoos STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE ) ~' %~~~~ NOTARY PUBLIC on this ~3 0 ~h day of J v r~ -~ 200. before me, ~'1k.41-ticw R . ~iq a a Notary Public in and for said state, personally appeared ~~~+5 OISo--~ ,personally known to me or proved to me on the basis of satisfa tpry evidence) to be the -G/!'1 ~/ of ~~ G~Gn~ /d/G~/7 2, Gam', the 8/1 i that executed the within instrument, known to me to be the person who DOCSOC/1110339v 11 /24579-0001 24 75A-38 executed the within instrument on behalf of the municipal corporation therein named, and acknowledged to me that such municipal corporation executed the within instrument pursuant to its bylaws or a resolution of its Board. WITNESS my hand and official seal. MATTHEW B. KALIF caw. ~ silo «arMrnNUC• cKx~oiwx aw-~ couemr Comm. Exp. ,IDLY 22 2008 DOCSOC/ 111033 9v 11/24579-0001 25 ~ :'/.~~ NOTARY PUB IC 75A-39 EXHIBIT A PROPERTY DESCRIPTION OWNER PARCEL PARCELS 1, 2, 3 & 5 OF PARCEL MAP NO. 89-439, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON THE MAP FILED IN BOOK 262, PAGES 7 THROUGH 10 INCLUSIVE, OF PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY THAT PORTION OF FRACTIONAL SECTION 31, IN TOWNSHIP 5 SOUTH, RANGE 9 WEST, BEING A PORTION OF THE LAND ALLOTTED TO JAMES MC FADDEN, IN THE FINAL DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA, RECORDED IN CASE NO. 1192, ENTERED SEPTEMBER 12, 1868 IN BOOK B, PAGE 410 OF JUDGEMENTS OF 17TH JUDICIAL DISTRICT COURT OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN THE CENTER LINE OF MAIN STREET, 66.00 FEET WIDE, SAID CENTER LINE BEING THE WESTERLY LINE OF SAID SECTION 31, SAID POINT BEING DISTANT THEREON NORTH 1 DEG. 28' 19" EAST, 2891.68 FEET FROM THE INTERSECTION OF SAID CENTER LINE WITH THE CENTER LINE OF NEWPORT AVENUE, 60.00 FEET WIDE, AS SHOWN ON A MAP FILED IN BOOK 10, PAGE 7, RECORD OF SURVEYS IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY; THENCE ALONG COURSES 1, 2 AND 3 DESCRIBED IN A FINAL ORDER OF CONDEMNATION, A COPY OF WHICH WAS RECORDED APRIL 9, 1964 IN BOOK 6998, PAGE 401, OFFICIAL RECORDS OF SAID ORANGE COUNTY, THE FOLLOWING COURSES AND DISTANCES; SOUTH 88 DEG. 31' 41" EAST 50.00 FEET; NORTH 46 DEG. 28' 17" EAST, 35.36 FEET; SOUTH 88 DEG. 31` 41" EAST, 127.00 FEET TO THE INTERSECTION WITH A LINE THAT IS PARALLEL WITH AND 202.00 FEET EASTERLY, MEASURED AT RIGHT ANGLES FROM SAID CENTER LINE OF MAIN STREET; THENCE SOUTH 1 DEG. 28' 19" WEST, ALONG SAID PARALLEL LINE 160.00 FEET; THENCE NORTH 88 DEG. 31' 41" WEST, AT RIGHT ANGLES TO SAID CENTER LINE, 202.00 FEET TO SAID CENTER LINE; THENCE NORTH 1 DEG. 28' 19" EAST, ALONG SAID CENTER LINE, 135.00 FEET, MORE OR LESS, TO THE POINT OF BEGINNING. PARCEL 1 AS SHOWN ON EXHIBIT "B" OF THAT CERTAIN LOT LINE ADJUSTMENT NO. 01-08, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED AUGUST 15, 2001 AS INSTRUMENT NO. 20010566652, OF OFFICIAL RECORDS. FRIED PARCEL PARCEL 2 AS SHOWN ON EXHIBIT "B" OF THAT CERTAIN LOT LINE ADJUSTMENT NO. 01-08, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED AUGUST 15, 2001 AS INSTRUMENT NO. 20010566652, OF OFFICIAL RECORDS. A-1 DOCSOC/1110339v 11 /24579-0001 75A-40 EXHIBIT B PUBLIC ART PLAN The Work(s) of Public Art shall be designed, constructed and installed by the Owner; provided however, that the Signs shall be designed by the City at its sole expense. 2. A Final Design Plan consistent herewith, which proposes specific Work(s) of Public Art for specific locations and/or applications, shall be submitted to the City's Planning Commission within thirty sixty five (365) days from the issuance of the first building permit for the Project. Owner shall install the Public Art not later than the issuance by the City of the first certificate of occupancy for any Element. 3. The Public Art should invite participation and interaction, inspire, add local meaning, interpret the community by revealing its culture or history, and/or capture or reinforce the unique character of the new place. 4. The Public Art should be constructed using durable materials and fmishes including but not limited to stone or metal. 5. The Work(s) of Public Art should be comprised of a single or grouped permanent work(s) at a prime location visable to the public and sited to complement features such as plaza or architectural components so that the Public Art is an integral part of the development site. 6. No Public Art shall include advertising of any type, including but not limited to products, services or businesses. All Public Art shall be properly maintained at all times, be free of any graffiti and shall not incorporate any flashing or distracting form of illumination. $. The Owner may assign ownership, maintenance and/or repair responsibilities of the Public Work(s) of Art to one or more Owners' Association(s). The City shall be solely responsible for maintaining the Signs. 9. All Public Art shall remain on the Property and may not be removed without the approval of the Planning Commission. 10. Expenses not included in the Public Art Fee. i. Expenses to locate the artists} (e.g., airfare for artist interviews, etc.) ii. Architect and Landscape Architect fees incurred in connection with the Public Work(s) of Art. iii. Landscaping around Public Work(s) of Art that is not included as part of the artist's sculpture furnishings, including, but not limited to, functional structures, prefabricated water or electrical features not created by the artist, and ornamental enhancements. iv. Utility fees associated with activating electronic or water generated artwork. B-1 DOCSOC/ 1110339v 11 /24579-0001 7 5A-41 v. Lighting elements not integral to the illumination of the Public Work(s) of Art. vi. Publicity, public relations, photographs, educational materials, business letterhead or logos bearing artwork image. vii. Dedication ceremonies, including sculpture unveilings or grand openings. 11. All molds, dies, or other patterns used in constructing the ~e-(~3 signs, together with all plans, shall be property of the City. B-2 DOCSOC/ 1 110339v 11/24579-0001 75A-42 A-2005-169 COOPERATIVE AGREEMENT FOR OFF-SITE IMPROVEMENTS THIS Agreement is entered into this ~ day of rig , 2005, by and between the SANDPOINTE NEIGHBORHOOD ASSOCIATION, INC., a California, non-profit public benefit and federal 501(c)(3) corporation ("Sandpointe"), the NEXUS DEVELOPMENT CORPORATION/CENTRAL DIVISION, INC. a California corporation and The Grand Plan 2, LLC, a California Limited Liability Company (collectively referred to herein as "Nexus"), COASTAL RIM PROPERTIES, INC., a California corporation ("Geneva Commons"), the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body corporate and politic (the "Agency"), and the CITY OF SANTA ANA, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California (the "City"). WITNESSETH A. Nexus has proposed constructing at Hutton Center a five level residential condominium project, two 23-residential level condominium high-rise and one 24-residential level condominium (for a total not to exceed 835 condominium units), together with ancillary retail not to exceed 14,000 square feet (the "Nexus Project"). ` B. Geneva Commons has proposed constructing at the northeast corner of MacArthur Boulevard and Imperial Promenade an approximately 278-unit condominium project consisting of an 18-residential level high rise project and aneight-story building, together with ancillary retail (the "Geneva Commons Project'. C. Sandpointe is anon-profit corporation that serves as a conduit between the Sandpointe Neighborhood ("Neighborhood") and outside community and political interests. Sandpointe Neighborhood is a residential neighborhood of single family and some multi-family homes in the southeast portion of Santa Ana. The Sandpointe Neighborhood consists of approximately 800 residences. Sandpointe does not have the authority to bind any individual resident of the Sandpointe Neighborhood. D. The Agency is a community redevelopment agency, as that teen is defined in California Health & Safety Code § 33100. In 1982, the Agency created the South Main Redevelopment Project Area ("Project Area"), and Nexus and Geneva Commons are located within the Project Area. E. Sandpointe has identified certain physical improvements needed in the area of the Neighborhood that aze necessitated by or would in some way offset the impact of the two development projects. Nexus and Geneva Commons desire to contribute towards the cost and/or construction of those improvements to the Sandpointe neighborhood in addition to and to ~~HfBIT ~ 75A-43 supplement the mitigation measures and conditions of approval imposed by the City of their respective developments. Those improvements aze set forth in Exhibit A, attached hereto and made apart hereof by this reference ("Improvements"}. F. The Agency is willing to assist in the funding of the improvements but only from a portion of the tax increment actually generated by the Nexus and Geneva Commons Projects and to fund specified improvements that would reduce blight and benefit the Project Area. G. The City's participation in this Agreement is limited to coordination of funding and/or construction of certain, herein specified publicly owned improvements. H. Nexus has agreed to construct some of the improvements, and pay for the construction of others, as more fully set forth below ("Nexus Improvements"). I. Geneva Commons has agreed to pay for a portion of the Nexus Improvements. NOW, THEREFORE, the parties hereto do mutually agree as follows: SCOPE OF WORK A. Nexus shall construct and/or fund the improvements identified as "Nexus Improvements" in Exhibit A hereto according to the schedule set forth in Exhibit B to this Agreement, attached hereto and incorporated herein by this reference. Nexus shall be entitled to full use of the funds deposited in the Nexus Escrow to undertake the Nexus Improvements. B. In consideration for Nexus' agreement to construct and/or fund the Nexus Improvement, Geneva Commons agrees to contribute a sum equal to its pro-rata shaze of residential units between itself and Nexus (which is currently twenty-five percent (25%) pursuant to those numbers set forth in sections A and B of the Recitals above) of the cost of the Nexus Improvements, towards the cost thereof payable at the time called for below. Notwithstanding the foregoing, if Nexus has not executed this Agreement prior to the date this Agreement becomes binding on Geneva Commons (which the parties agree shall conclusively deemed to be the first day upon which this Agreement has been executed by Geneva Commons, the City, the Agency and Sandpointe), then Geneva Commons pro-rata share contribution to the Nexus Escrow shall be conclusively fixed at twenty-five (25%) regardless of the actual number of residential units approved far it and Nexus. C. If the entire Nexus and Geneva Commons Projects are constructed, Agency shall cause the construction of the improvements identified as "Publicly-Owned Improvements" in Exhibit A hereto according to the schedule set forth in Exhibit C to this Agreement, attached hereto and incorporated herein by this reference. The parties acknowledge and agree that the total cost of the publicly owned improvements, including studies, design and overhead ,shall not exceed Five Million Dollars ($5,000,000.00). 2 7 5A-44 2. COMPENSATION AND METHOD OF PAYMENT A. Nexus shall, within sixty (60) days of execution of this Agreement, open an escrow account at First American Title Insurance Company, 2 First American Way, Santa Ana, California, or an equivalent escrow company approved in advance by Geneva Commons and Sandpointe, for deposit of funds to be used to pay for the Nexus Improvements (referred to herein as the "Nexus Escrow"). B. Sandpointe shall deposit $1,000.00 into the Nexus Escrow on the Escrow Submission Date no later than the date the of the first payment made pursuant to paragraph 2.D. of this Agreement. C. Prior to the deadline specified in paragraph 2.D. of this Agreement, Nexus and Geneva Commons shall meet and confer in good faith to agree upon the estimated cost of the Nexus Improvements. If, at any time, either Geneva Commons or Nexus determines that such agreement is not possible, then the objecting party shall submit its dispute in writing, together with any evidence upon which it relies to the Executive Director of the City's Public Works Agency and the other party . Within fifteen (15) days of its receipt of said notice, the non-objecting party shall then have fifteen (15) days to submit any response it has to the City and the objecting party. The Executive Director of the City's Public Works Agency or designee shall then, within thirty (30) days of receipt of the response, if any, or the expiration of said deadline, inform both Geneva Commons and Nexus in writing of the final determination of the estimated total cost, which all parties agree shall be conclusive and binding upon both Nexus and Geneva Commons. Thereafter, Nexus and Geneva Commons shall deposit their respective shares of the estimated cost of the Nexus Improvements as set forth in paragraph l .B. of this Agreement, less $1,000.00, into the Nexus Escrow no Iater than the date specified in paragraph 2.D. of this Agreement. D. Nexus shall pay into the Nexus Escrow no later than (i) the date the first building permit is issued by the City for the Nexus Project, or (ii) a date ninety (90) days after the issuance of entitlements to Nexus, provided no litigation or referendum petition challenging Nexus has been filed and served on the City, whichever comes later. Geneva Commons shall pay into the Nexus Escrow no later than (i) the date the first building permit is issued by the City for the Geneva Commons Project, or (ii) a date ninety (90} days after the issuance of entitlements to Geneva Commons, provided no litigation or referendum petition challenging Geneva Commons has been filed and served on the City, whichever comes later. 75A-45 E. The Agency shall pay the City its cost incurred by the City for the Publicly-Owned Improvements set forth in Exhibit A to this Agreement; provided, however that total commitment by the City and Agency toward the Publicly-Owned Improvements shall not exceed FIVE MILLION DOLLARS ($5,000,000.00). If the items set forth asPublicly-Owned Improvements in Exhibit A are found to cost more than this sum, then the Agency shall, in the exercise of its sole and absolute discretion, limit or eliminate Publicly-Owned Improvements set forth in Exhibit A; provided, however, that the Agency shall proceed with the Publicly-Owned Improvements in the order as set forth in said Exhibit. 3. NEXUS CONSTRUCTION DRAWINGS AND RELATED DOCUMENTS A. Nexus shall prepare and submit construction drawings and related documents for items listed on Exhibit A to the City for review (including, but not limited to, architectural review) and written approval as and at the times established in the Schedule of Performance set forth in Exhibit B to this Agreement. T'he construction drawings and related documents shall be submitted in two stages: (i) the Preliminary Site Plans and (ii} Final Site Plans. B. During the preparation of all drawings and plans, City staff and Nexus shall hold regulaz progress meetings to coordinate the preparation of, submission to, and review of construction plans and related documents by the City. The City staff and Nexus shall communicate and consult informally as frequently as is necessary to insure that the formal submittal of any documents to the City can receive prompt and speedy consideration. C. Any revision or correction of plans required by the City shall be deemed approved by the Agency, Geneva Commons and Sandpointe. D. Neither the City, the Agency, Sandpointe or Geneva Commons shall have any ownership interest in, or any right to use, the Preliminary Site Plans or the Final Site Plans submitted by Nexus, nor shall the City, the Agency, Sandpointe or Geneva Commons authorize the right to use any such plans or drawings to any person or entity. 4. APPROVAL OF NEXUS PLANS, DRAWIl~IGS AND RELATED DOCUMENTS A. The City shall have the right of reasonable review (including, but not limited to, architectural review) of all plans, drawings and related documents including any proposed changes therein. The City shall approve or disapprove such plans, drawings, and related (and any proposed changes therein) within the times established in the Schedule of Performance set forth in Exhibit B hereto. Such approval shall not be unreasonably withheld. B. Any disapproval shall state in writing the reasons for disapproval. The City shall have the right to disapprove, in its reasonable discretion, any of the Final Plans if the Final Plans do not conform to the Approved Plans, the approved Preliminary Plans or do not conform to Exhibit A to this Agreement, or are incomplete. 4 75A-46 C. The City shall state in writing the reasons for disapproval of the Final Plans within sixty (60) days of receipt of copies of such Final Plans. Failure to respond within this sixty (60) day period shall not be grounds for resubmittal. D. Nexus, upon receipt of a notice of disapproval, shall revise such portions of the plans, drawings or related documents in a manner that reasonably satisfies the reasons for disapproval and shall resubmit such revised portions to the City as soon as possible after receipt of the notice of disapproval. Plans, drawings, and related documents receiving City approval shall not be subsequently disapproved. Nexus shall ensure that all of its plans, drawings and related documents comply with all Governmental Requirements. 5. COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF NEXUS IlVIPROVEMENTS a. Nexus shall construct and/or fund, utilizing the Nexus Escrow, the improvements in conformance with Exhibit A to this Agreement and the approved Final Plans. To the extent that the cost of the Nexus Improvements, constructed in conformance with Exhibit A to this Agreement and the approved Final Plans, exceeds the funds in the Nexus Escrow, Nexus and Geneva Commons shall be solely responsible for said costs, with each responsible for any additional cost to the same percentage as is set forth in paragraph 1.B. of this Agreement. Nexus shall complete or fund, as the case may be, the construction of the improvements in conformance with the schedule set forth in Exhibit B to this Agreement_ b. The parties acknowledge and agree that the Block Wall identified as Item No. 1 on Exhibit A will be constructed on the properties of dozens of individual homeowners in the Sandpointe neighborhood, none of whom are parties to this Agreement. The parties agree to use their best efforts to obtain permission of each of these individual properly owners to construct this Block Wall and to permit the City to permanently maintain the climbing ivy along the exterior of the wall. However, it is the parties understanding and intent that should any property owner refuse to agree to permit the construction and/or exterior ivy maintenance ("hold outs', that the Block Wall will be constructed regardless of any hold-outs, and that plexus shall construct the Block Wall in such fashion as to join the Block Wall to existing wall segments owned by hold outs and milLmi~e any negative aesthetic impact caused by such hold outs. Nexus agrees to hold Sandpointe and its officers, directors, employees and agents harmless from any claim by any and all property owners including such hold outs arising out of the construction of the Block Wall in which Sandpointe, or its officers, directors, employees or agents are named. Nexus shall be permitted to select counsel to defend Sandpointe at the expense of Nexus. In the event of a potential conflict of interest between Sandpointe and Nexus, Sandpointe shall have the right to select independent counsel. All fees and costs of independent counsel selected by Sandpointe for defense of any claim arising out of or relating to any claims described herein shall be paid by Nexus on behalf of Sandpointe. 75A-47 6. AGENCY NOTICE TO PROCEED FOR DESIGN AND CONSTRUCTION OF PUBLICLY OWNED IMPROVEMENTS Upon the issuance of a certificate of occupancy pursuant to the California Building Code for (i) all residential units in a minimum of two of the three high-rise towers in the Nexus Project, and (ii) all residential units in the Geneva Commons Project, the Agency shall give the City a notice to proceed to design and construct the Publicly-Owned Improvements as set forth in Exhibit A. If only a portion of the residential units have been constructed within five (5) years of the date of the Commencement Date, then the Agency shall only give the City a notice to proceed with a partial list of items as set forth in Exhibit C to this Agreement. The Agency's obligation to pay for the Publicly-Owned improvements, and the City's obligation to complete these Publicly-Owned Improvements, or any part thereof, shall be limited by the Agency's ability to fund said work from the project-specific tax increment generated by the Nexus Project; provided, however, that City and Agency shall construct item no. l .a. on the list of Publicly-Owned Improvements in Exhibit A to this Agreement regardless of the proj ect-specific tax increment received by the Agency. 7. COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF PUBLICLY OWNED IlVIPROVEMENTS a. City shall construct the Publicly-Owned Improvements in conformance with the schedule set forth in Exhibit C to this Agreement and the approved Final Plans; provided, however, that the Agency and City shall have no obligation once the cost of the Publicly-Owned Improvements exceeds Five Million Dollars ($5,000,000.00). If the cost of the Publicly-Owned Improvements, including all design, administrative and construction costs exceed $5,000,000.00, then the City shall construct only that portion of the Publicly Owned Improvements as specified in Exhibit C in the exercise of the Agency's sole and absolute discretion. b. City shall, at the conclusion of the plant establishment phase specified in Exhibit B, additionally maintain the climbing vines and irrigation constructed by Nexus along the outside of the block wall, referenced in item no. 1 on Exhibit A hereto, but the City's obligation to maintain the climbing vines shall only apply to those property owners who execute a facade easement with the City in a form approved by the City Attorney pernutting the City to maintain said climbing vines and indemnifying the City from any liability caused by said climbing vines and/or irrigation. Sandpointe shall be responsible for obtaining signatures from these individual homeowners. 8. LIABILITY AND INDEMNIFICATION DURING CONSTRUCTION; BODILY INJURY AND PROPERTY DAMAGE INSURANCE A. From and after the Effective Date, Nexus and Geneva Commons agree to and shall indemnify and hold Agency, City and Sandpointe, and their respective officers, directors, agents and employees harmless from and against all damages to property or injuries to or death of any person or persons, including employees or agents of Agency or City, and shall defend, indemnify and save F 75A-48 Agency, City and Sandpointe, and their officers, agents, and employees, from any and all claims, demands, suits, actions, or proceedings of any kind or nature, including, but not by way of limitation, workers' compensation claims of or by anyone whomsoever, in any way resulting from the negligent or wrongful acts or omissions of Nexus or Geneva Commons or their respective employees, agents or subcontractors. For itself and no other, Sandpointe agrees to hold harmless Agency, City and their respective officers, directors, agents and employees from and against all damages to properly or injuries to or death of any person or persons, in any way resulting from the negligent or wrongful acts or omissions of Nexus or Geneva Commons, or their respective employees, agents or subcontractors. This Agreement shall not be interpreted or construed to obligate Sandpointe, its officers, directors or agents, or the Neighborhood to defend, indemnify or to answer in any way for the Agency the City or their respective officers, directors, agents or employees for such claims. B. Prior to the commencement of construction, Nexus or any other party working within the real property of the City or Agency, shall obtain at its sole cost and file with the City and Agency, and maintain for the period covered by this Agreement, a policy or policies of liability insurance or a certificate of such insurance, consistent with this Agreement, naming Agency, the City and Sandpointe, their officers, directors, agents, and employees, as insured or additional insured, which provides coverage not less than that provided in the form of a comprehensive general liability insurance policy against liability for any and all claims and suits for damages or injuries to persons or property resulting from or arising out of operations of Nexus, its officers, directors, agents, or employees. Said policy or policies of insurance shall provide coverage for both bodily injury and property damage in not less than One Million Dollars ($1,000,000) combined single limit, or its equivalent. Said policy or policies shall also contain a provision that no termination, cancellation, or change of coverage of insured shall be effective until after thirty (30} days notice thereof has been given in writing to City and Agency. Nexus shall give to Agency and City prompt and timely notice of claim made or suit instituted arising out of Nexus operations hereunder. Nexus may procure and maintain, at its own cost and expense, any additional kinds and amounts of insurance, which in its own judgment maybe necessary for its proper protection in the prosecution of the work. All insurance policies shall be written by responsible and solvent insurance companies and shall include an additional insured endorsement in substantially the form of Exhibit D, attached hereto and incorporated herein by this reference 9. COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Nexus shall carry out the design, construction, and operation of the Nexus Improvements in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, or any other political subdivision in which the Property is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City or Nexus, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, applicable prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, mechanical and electrical codes, and all other provisions of the City and its Municipal Code, and all applicable disabled and handicapped 75A-49 access requirements, including, without the limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code §4450 et seq., and the Unruh Civil Rights Act, Civil Code § 51 et seq. ("Governmental Requirements"). 10. DEFAULTS AND REMEDIES If any party defaults in performance of its obligations, covenants or agreements hereunder, the defaulting party shall be entitled to cure the default in accordance with this section. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. The defaulting party must, within thirty (30) days, following service of said notice, commence to cure, correct or remedy such failure or delay and shall complete such cure, correction, or remedy with reasonable diligence. 11. INSTITUTION OF LEGAL ACTIONS Subject to the provisions of Section 13 hereof, in addition to-any other rights or remedies, either party may institute legal action to cure, correct or remedy any default to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. 12. APPLICABLE LAW This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. All 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. I3. RIGHTS AND REMEDIES ARE CUMULATIVE Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 75A-50 14. DAMAGES In the event that the Agency or City is liable for damages to Nexus, Sandpointe and/or Geneva Commons, such liability shall not exceed costs incurred by Nexus, Sandpointe and/or Geneva Commons in the performance of this Agreement and shall not extend to compensation for Ions of future income, profits or assets. 15. NOTICES, DEMAND AND COMMUNICATIONS Formal notices, demands and communications between the parties shall be sufficiently given if dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the Agency and the Developer as designated below. Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this section. City: City of Santa Ana Planning and Building Agency 20 Civic Center Plaza, M-20 Santa Ana, CA 92702 Attn: Steve Hazding, Executive Director Phone: (714) 667-2700 Fax: (714) 973-1461 with copy to: City Attorney 20 Civic Center Plaza, M-29 Santa Ana, California 92702 Agency: Community Development Agency City of Santa Ana. 20 Civic Center Plaza, M-25 Santa Ana, CA 92702 Attn: Patricia C. Whitaker, Executive Director Phone: (714) 647-5360 Fax: (714) 647-6549 with copy to: Agency General Counsel Community Redevelopment Agency of the City of Santa Ana 20 Civic Center Plaza., M-29 Santa Ana, California 92702 75A-51 Sandpointe: Sandpointe Neighborhood Association, Inc. P.O. Box 27122 Santa Ana, California 92799 Attention: Bob Black Nexus: Nexus Development Corporation/Central Division, Inc. The Grand Plan 2 1 MacArthur Place, Suite 300 Santa Ana, California 92707 Attention: Cory W. AIder Geneva Commons: Coastal Rim Properties, Inc. 139 East Alton Avenue Santa Ana, California 92707 Attention: Franco Mola A party may change its address by giving notice in writing to the other parties. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above.l£ sent by facsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays hall be excluded. 10 75A-52 16. EFFECTIVE DATE AND TERM OF AGREEMENT This Agreement shall take effect from and after the date of adoption and approval by the City and the Agency pursuant to official action of the governing bodies thereof and shall be effective until completion and acceptance of the Nexus Improvements and Publicly-Owned Improvements. If Geneva Commons is approved by the City and Nexus is not, then Geneva Commons shall take over Nexus' obligations to construct a portion of the Nexus Improvements under this Agreement, but shall be required to (i) meet and confer with the Agency and Sandpointe, and using the order of the Nexus Improvements specified in Exhibit A as a guide, designate which of the Nexus Improvements shall be constructed using Geneva Commons twenty-five percent (25%) share of the estimated cost of the total Nexus Improvements, and (ii) the parkies agree and acknowledge that all references herein to Nexus shall be deemed to be references to Geneva Commons. If Nexus is approved and Geneva Commons is not, then Nexus, the Agency and Sandpointe shall meet and confer in good faith, and using the order of the Nexus Improvements specified in Exhibit A as a guide, designate which of the Nexus Improvements shall be constructed using Nexus seventy-five percent (75%) share of the estimated cost of the total Nexus Improvements. 17. COMMENCEMENT DATE For purposes of this Agreement the term "Commencement Date" shall refer to the period after issuance of City entitlements and shall be deemed to be a date ninety (90) days after the issuance of entitlements to Nexus and Geneva Commons (whichever comes later). The Commencement Date shall be tolled should a valid referendum petition be presented challenging either project, or timely litigation be filed and served challenging any of the entitlements, including approval pursuant to the California Environmental Quality Act. 18. INTEGRATION This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreement between the parties with respect to all or any the matters addressed herein. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the parties, and all amendments hereto must be in writing and signed by the appropriate authorities of the parties. 19. ASSIGNMENT Nexus and Geneva Commons shall have the right to transfer or assign this Agreement, in whole, to any person, entity (public or private), partnership, joint venture, firm or corporation who is the owner of the real property referenced in the Recital hereto at any time during the term of this Agreement; provided, however, the rights of Nexus or Geneva Commons under this Agreement may not be transferred or assigned unless the written consent of the City Council is first obtained and any transfer or assignment of the rights under this Agreement shall include in writing the assumption of the duties, obligations, and liabilities arising from this Agreement if 11 75A-53 the City grants written consent to transfer the rights. Nor shall the rights of Nexus or Geneva Commons hereunder be subject to assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act, and any such assignment or transfer shall be wholly void and of no force and effect unless such written consent thereto be obtained from the City Council. Such transfer or assignment shall not relieve Nexus or Geneva Commons of any duty, obligation or liability to City without the consent of the City. During the term of this Agreement, any approved assignee or transferee of the rights under this Agreement shall observe and perform all of the duties and obligations of Nexus or Geneva Commons contained in this Agreement as such duties and obligations pertain to the Nexus or Geneva Commons. Any and all approved successors and assignees of Nexus or Geneva Commons shall have all of the same rights, benefits, duties, obligations, and liabilities of Nexus or Geneva Commons under this Agreement. If the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for development by them. Upon assignment or transfer of the rights of Nexus or Geneva Commons under this Agreement, the obligations of the assignor and the transferee or assignee shall be joint and several. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. SANDPOINTE NEIGHBORHOOD, ASSOCIATION, INC. By Name Its r~lA~2/I~AN NEXUS DEVELOPMENT CORPORATION/ CENTRAL DIVISION, INC. By _ Name Its l2 75A-54 the City grants written consent to transfer the rights. Nor shall the rights of Nexus or Geneva Commons hereunder be subject to assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act, and any such assignment or transfer shall be wholly void and of no force and effect unless such written consent thereto be obtained from the City Council. Such transfer or assignment shall not relieve Nexus or Geneva Commons of any duty, obligation or liability to City without the consent of the City. During the term of this Agreement, any approved assignee or transferee of the rights under this Agreement shall observe and perform all of the duties and obligations of Nexus or Geneva Commons contained in this Agreement as such duties and obligations pertain to the Nexus or Geneva Commons. Any and all approved successors and assignees of Nexus or Geneva Commons shall have all of the same rights, benefits, duties, obligations, and liabilities of Nexus or Geneva Commons under this Agreement. If the Property is subdivided, any subdivided parcel maybe sold, mortgaged, hypothecated, assigned, or transferred to persons for development by them. Upon assignment or transfer of the rights of Nexus or Geneva Commons under this Agreement, the obligations of the assignor and the transferee or assignee shall be joint and several. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. SANDPOINTE NEIGHBORHOOD, ASSOCIATION, INC. By _ Name Its NEXUS DEVELOPMENT CORPORATION/ CENTRAL DIVISION, INC. By • !2 O ~.~----- Name Its 12 75A-55 THE GRAND PLAN 2, LLC By Curtis R. Olson Managing Partner COASTAL RIM PROPERTIES, INC. By . Name Its ATTEST: THE CITY OF SANTA ANA 1 ~~ `~ ~ By Patricia E. Healy David N. Re Clerk of the Council City Manager APPROVED AS TO ttorney t3 75A-56 THE GRAND PLAN 2, LLC ATTEST: ~,~~- _ ~ p 2r"t,~- Patricia E. Healy Clerk of the Council Curtis R. Olson Managing Partner COASTAL RIM PROPERTIES, INC. By - Name Its THE CITY OF SANTA ANA By -~---. David N. Ream City Manager t~ 75A-57 APPROVED AS TO FORM: ATTEST: COMMUNITY REDEVELOPMENT AGENCY OF THE C OF SANTA ANA c_ Pa 'cia C. Whitaker ~~_ ~ By ~atricia E. Healy Secretary of Agency Executive Director 14 75A-58 APPROVED AS TO FORM: EXHIBIT A OFF-SITE IMPROVEMENTS Block Wall a. Main Street between Murphy & Sunflower, and house located at 101 W. Murphy b. North side of Sunflower between Main & alley adjacent to four plexes, excluding sections of wall at comer of Main & Sunflower at rear of commercial building c. Plaster and paint with one color selected by Association d. $3,000 per house payment for repair/replacement of landscaping associated with wall improvements upon execution of Nexus right-of--entry for construction and exterior-wall maintenance easement. This payment shall be made by Nexus at the time the individual property owner executes the construction easement in favor of Nexus and permanent maintenance easement (for the climbing vines) in favor of the City. For any "hold outs" (as defined in paragraph 6.b. of this Agreement, Nexus shall make the $3,000 payment to Sandpointe intrust for each hold out. e. Remove and replace 16 sections of white concrete block wall in immediate area of MacArthur Boulevard and Flower Street, and paint with one color selected by Association. f. Remove and replace 4 sections of white concrete block wall along West Alton Avenue and paint with one color selected by Association. g. Nexus shall install climbing vines, species identified by the City, along the outer edge of the wall, install irrigation to feed said climbing vines which shall be connected and metered by Nexus at the nearest City water supply, and shall reconstruct the sidewalk to the City's specifications after installation of the irrigation lines and block wall. h. Wall replacement specifications shall be established pursuant to paragraph 4 of this Agreement. i. Nexus shall maintain, and replace as necessary, the climbing vines during a ninety (90) day plant establishment phase following item no. l.g. 2. Window Replacements a. Nexus shall provide $3,500 construction allowance per house for sound proof window replacements for up to 49 residential units located along Main Street and Sunflower Avenue behind the existing concrete wall to be replaced. The 49 residential units are identified in Exhibit A-1 to this Agreement. b. Nexus shall assist Sandpointe in obtaining/preparing necessary construction bids, documents and permits. c. Allowance will be paid by Nexus to Sandpointe for any applicable home upon receipt of bona fide construction or material invoices. d. Allowance shall expire 12 months following the completion of the concrete wall 15 75A-59 replacement improvements. e. Window specifications shall be established pursuant to paragraph 4 of this Agreement. 3. Taft Elementary Loading Zone a. Nexus shall construct all improvements necessary to effectuate Definitive Easement Agreement between Santa Ana Unified School District, Nexus and South Coast Church. b . Improvements to loading zone shall include driveway approaches, traffic lanes on site, striping, church building renovations, portable classroom relocations, computer lab on school and church properties, etc. as provided for in plans included as part of Definitive Easement Agreement. 4. Pay City $200,000 for City to implement a Neighborhood Traffic Management Plan {"NTMP") to mitigate changes in traffic patterns or increased cut through traffic resulting from the Nexus and Geneva Commons Projects in the Sandpointe Neighborhood. NTMP costs shall include traffic studies, staff time to process neighborhood traffic plan, and the construction of appropriate traffic calming devices, including but not limited to semi-diverters, diagonal diverters, and street closures. The implementation of the NTMP shall be pursuant to procedures adopted by the City Council. 5. Nexus shall pay the City the full cost (see Exhibit B) for the installation of a Traffic Signal at the intersection of MacArthur Boulevard and Birch Street. 1 Utility Undergrounding a. Main Street -MacArthur to Sunflower b. MacArthur -Main to Flower c. Sunflower -Main to Flower (north side of street) tF 75A-60 EXHIBIT A-1 List of 49 Residential Units List of Eligible Homa9 for Window Replacements Along Main and Sunflower Single Family 1~omes: 1. 10T W. Murphy (sides to Main) 2. 3701 S. Alder (backs to Main) 3. 3705 S. Aldo (backs m Main) 4. 3709 5. Alder {bacb to Main) 5. 3713 S. Alder (backs to Main) 6. 3717 S. Alder (badca to Main) 7. 3721 S. Aldo {becko to Main) 8. 3725 S, Alder (back+ to Main) 9. 3729 $. Alder (backs to Main) t 0. 3801 S. Aida (backs to Main) 1 t. 3805 S. Rider (backs to Main i 2. 3809 S. Alder {backs to Main) i 3. 3813 S. Alder (backs to Main) 14. 3817 S. Aidcr (backs to Main) 15. 3821 S. Alder (backs to Main) 16_ 3825 S. Alder (licks to Aidcr) 17. 3829 5. Alder (lucks to Main) 18_ 3901 S. Aldo (backs to Main) 19. 3905 S. Alder (backs to Main) 2R. 3909 S. Alder (backs to Main) Zt. i02 W. Slovens (backs to Main ahd MlniMarket) 22. 106 W_ Steven (back+ to Main and Mini Market) 23. 110 W, Stevens (baeio to Main and Mini Marled) 24, i ]4 W, Stevens (backs to Sunflower and Mini Market) 25. 11$ W, Stevens (bscb to Sunflower) 26. 122 W. Stevens (Mcks to Sunflower) 27. 202 W. Stevens {backs to Sunflower) 28. 206 W. Steverrs (brdcs to Sta-flower) 29. 210 W. Stevens (barb to Sunflower) 30. 214 W. Stevars (backs to Suuflower) 31. 3926 S.Timba (sides to Sunflower) 32. 302 W. Stevens {backs to Sunflower) 33. 306 W. Stevens (backs to Sunflower) 34. 310 W. Stevens (backs to Sonflawrar) 35. 314 W. Stevens (backs to Sunflower) 36. 318 S. 5revens (bads to Suoflower) 37. 3922 3..Birdt (b6~k3 to Sunflawcr) Fonrpkxe~ 38. 3925 S. Rosa 39. 401 W. Sunflower 40. 405 W. Sunflower 41. d09 W. Sunflower 42. SOl W. sunflower 43. sos w. sunf[ower 44, s09 w. Sunflower 45. 513 W, Sunflower Main Attraction Condnminiarns 46. 3620 A S. Main x7.3632 A S. Main 48.3632 B S. Main 49.3632 C S. Main (sides to Sunflower) (fronts Sunflower) (Fronts Sunflower) (fivers Sunflower) (imw sunflower) (frontc Sunflower) (fronts Sunflower) (fronts Sunflower) (sides to Mein) (Eronb Main) (}fonts Main) (fronts Moin) 17 75A-61 EXHIBIT B SCHEDULE OF NEXUS IMPROVEMENTS 1. Construction of Item No. 1 to Exhibit A shall conform to the following schedule: a. Preliminary Site Plans -Due within thirty (30) days of the Commencement Date. c. Final Plans -Due within sixty (60) days of City approval of Preliminary Site Plans, together with proposed Right-Of--Entry and Maintenance Easement for review of City and Sandpointe. d. Building Permits, Construction Right-Of--Entry (in favor of Nexus), and Permanent Maintenance Easement for Exterior of Wall (in favor of City) - Application, right of entries and easements shall be submitted no late than sixty (60) days after City approval of Final Plans. e. Construction Commencement -Within thirty (30) days after approval of Building Permits. f. Construction Complete -Within one hundred twenty (120) days of commencement of construction. g. Ninety (90) day plant establishment phase after completion of construction of climbing vines and irrigation. 2. Construction of Item No. 2 to Exhibit A shall conform to the following schedule: a. Final building permit plans shall be submitted by individual Sandpointe homeowners to City no later than construction complete date for item no. 1, above. b. Construction shall be complete pursuant within one hundred twenty (120) days of issuance of City Building Permit. 3. Construction of Item No. 3 to Exhibit A shall conform to the following schedule: a. Nexus shall submit executed Defuutive Easement Agreement to all parties no later than one hundred eighty (180) days of the Commencement Date. If Nexus fails to meet this deadline, which may be extended in writing by Nexus and Sandpointe, then Nexus shall deposit $1.2 million from the Nexus Escrow into a separate escrow with terms providing for its withdrawal by Sandpointe, which are mutually agreeable to all parties, for use by Sandpointe on other projects to benefit the Sandpointe neighborhood. b. Nexus shall complete this item not later than eighteen (18) months from the 1R 75A-62 Commencement Date. 4. Nexus shall pay City for item no. 4 to Exhibit A not later than approval of the first final map for the Nexus Project. The City shall follow the Neighborhood Traffic Management Plan Policy adopted by the City Council. 5. Construction of Item No. 5 to Exhibit A shall conform to the following schedule: a. The City shall provide Nexus with a preliminary estimate of this cost within thirty (30) days of the Commencement Date. This preliminary estimate shall be updated, if necessary, upon the City's receipt of Nexus application to final any portion of its tentative tract map. Said estimate shall be conclusive. b. Nexus shall pay the City the estimated cost of this item not later than approval of the first final map for the Nexus Project. c. The City shall complete construction of this item prior to the first certificate of occupancy for the Nexus Project. Any deadline pursuant to this Exhibit C may be extended by mutual written agreement of Nexus and the City Manager or designee. 19 75A-63 EXHIBIT C SCHEDULE FOR PUBLICLY-OWNED IMPROVEMENTS City shall complete item no. l .a. on Exhibit A ofPublicly-Owned Improvements not later than June 2005. 2. City shall complete item no. l .b. on Exhibit A of Publicly-Owned Improvements not later than five (5) years after the Agency provides City with the then estimated cost of the project. 3. City shall complete item no. l.c. on Exhibit A ofPublicly-Owned Improvements not Iater than five (5) years after the Agency provides City with the then estimated cost of the project. Notwithstanding this schedule, City shall make a reasonable good faith effort to effectuate the completion of these Publicly-Owned Improvements (which, under current law. must be designed and constructed by Southern California Edison and not the City} prior to the dates specified above. 2~ 75A-64 EXHIBIT D PUBLIC IMPROVEMENTSI Improvement Location Street Reconstruction Hutton Centre Drive between Sandpointe Avenue and MacArthur Blvd. Sandpointe Avenue between Main Street & Hutton Centre Drive Hutton Centre Loop Road between Hutton Centre Drive to the most easterly driveway on the north side Eastbound MacArthur Blvd. lanes between Main Street and Hutton Centre Drive Construct eastbound right-turn lane MacArthur Blvd. east of Main Street Provide second northbound right-turn lane Hutton Centre Drive between MacArthur Blvd. and Hutton Centre Loop Road New traffic signal Hutton Centre Drive and Hutton Centre Loop Road Raised median Hutton Centre Drive from MacArthur Blvd. to 280 feet south of Hutton Centre Loop Road Raised median Hutton Centre Loop Road to most easterly driveway on north side Colored crosswalk Hutton Centre Loop Road east of Hutton Centre Drive and sidewalk on north side to most westerly driveway Street widening to provide fourth eastbound lane MacArthur Blvd. between Hutton Centre Drive and SR55 southbound on-ramp Traffic signal modification to provide second MacArthur Blvd. at Hutton Centre Drive northbound right-turn lane Raised median Main Street between Sandpointe Avenue and MacArthur Blvd. Owner shall be obligated to pay prevailing wages in connection with the construction of the Public Improvements in accordance with the requirements set forth in Attachment No. 1, attached hereto and incorporated herein by reference. D-1 DOCSOC/ 1110339v 1 1 /245 79-000 1 75A-65 ATTACHMENT NO. 1 TO EXHIBIT D PREVAILING WAGE REQUIREMENT A. Owner agrees to pay all workers employed in connection with the work to be performed pursuant to the Agreement, not less than the prevailing rates of wages, as provided in the statutes applicable to public works contracts of the City of Santa Ana ("Agency"}, including without limitation Sections 1770-1780 of the California Labor Code. B. Owner shall maintain accurate records showing the name, occupation and actual per diem, regular, overtime and holiday wages paid to each worker and fringe benefits (as appropriate) paid to or on behalf of each worker employed in connection with the work to be performed pursuant to the Agreement, the hours worked by such workers and amounts withheld pursuant to law. Such records shall be open to inspection by City staff at reasonable hours. C. Owner shall cooperate with City staff or its consultants in carrying out any investigation of any claim made by a worker employed by Owner that less than prevailing wages were paid for work performed pursuant to the Agreement. Owner shall promptly pay any amount determined by City to be the difference between the applicable prevailing wage for the number of hours worked by the claimant and the amount actually paid to the claimant. D. Owner agrees that, if requested by City, funds due to employee under the Agreement may be withheld pending the completion of any investigation pursuant to Section C hereof to ensure that the amount of any restitution, which may be required, is available. E. Owner agrees that, if City determines that Owner has violated any provision of this attachment/exhibit, funds otherwise due to Owner pursuant to the Agreement may be withheld, or Owner may be required to post a bond or provide a Letter of Credit or other security, in an amount sufficient to ensure that workers employed in connection with the Agreement will receive the prevailing wages for the work to be performed, as determined to be appropriate by City staff or consultants. F. In the event that Owner subcontracts with an independent contractor for all or any part of the work to be performed pursuant to the Agreement, and such subcontractor employs workers to perform such work: Owner shall assure that such subcontract includes and incorporates this attachment/exhibit and requires such subcontractor to comply with and be bound by the provisions hereof as the "Owner" with regard to the workers so employed. 2. In the event any such subcontractor is being investigated by City staff or consultants pursuant to Section C hereof Owner shall, at the request of City, withhold funds from such subcontractor prior to the completion of such investigation, to ensure that the amount of any restitution which may be required is available. Attachment No. 1-1 to Exhibit D DOCSOC/ 1 110339v 1 1 /245 79-000 1 75A-66 3. In the event that the City staff determines that any such subcontractor has violated the provisions of this attachment/exhibit, Owner agrees to cooperate with City in withholding funds from such subcontractor or requiring such subcontractor to post security, in accordance with Section E hereinabove. G. In the event of a dispute between Owner and City staff with respect to a City staff determination, Owner shall have the opportunity to bring the dispute before City Board for review. The City Council may take such action, as it deems appropriate, including: Affirming the City staff determination. 2. Referring the matter back to City staff for further investigation. Reversing or modifying the City staff determination. 4. Directing the City staff to appoint an independent hearing examiner for further investigation. Such other action as the Board may deem appropriate under the circumstances. H. The parties to the Agreement stipulate and agree that the City is a third party beneficiary of the provisions of this attachment/exhibit and may enforce the same as such through any appropriate remedies in law or equity. I. The provisions of this attachment/exhibit shall be interpreted and applied in accordance with that certain "Policy on Payment of Prevailing Wages by Private ReOwners or Owner- Participants", adopted by the Community Redevelopment Agency of the City of Santa Ana on May 20, 1986, subject to any and all amendments thereto to the date of the Agreement, a public record on file in the offices of the Agency. Owner shall no later than the 15th day of each month during construction of the Project submit to the City aself--audit report declaring under penalty of perjury and demonstrating that during the prior month it has complied with the provisions of this attachment/exhibit and California prevailing wage law. The self-audit report or statement not be binding nor conclusive, nor shall the filing or failure to file such report or statement preclude the City from conducting an audit. K. Owner shall keep and preserve for a period of not less than four (4) years all records as may be necessary to determine whether it has paid prevailing wage as required by this attachment/exhibit, which records shall be made available to the City or its consultants and agents at all reasonable times for purposes of conducting an audit. Owner shall permit an examination of such books and records at a location within the City. In the event such books and records cannot be made available within the City, the operator shall reimburse the City for the cost of all transportation, lodging, meals, portal-to-portal travel time and other incidental costs reasonably incurred by the City in conducting the audit. Appropriately identified confidential or proprietary information furnished to the city as part of an audit shall remain confidential, except in case of civil action or criminal prosecution. Attachment No. 1-2 to Exhibit D DOC SOC/ 111033 9v 11 /24579-0001 75A-67 L. Should any City conducted audit conclude that Owner has failed to pay prevailing wage in at least five percent (5%) of the audited transactions (with a single pay day of a single wage earner constituting one transaction), then Owner shall reimburse City for all actual costs of the audit within thirty (30) days of receipt by Owner of the City's invoice. Attachment No. 1-3 to Exhibit D DOCSOC/1110339x11 /24579-0001 75A-68 EXHIBIT E AVIGATION EASEMENT RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Santa Ana Clerk of the Council of the City of Santa Ana 20 Civic Center Plaza, M-30 P.O. Box 1988 Santa Ana, California 92702 EXEMPT FROM FILING FEES, CAL. GOVT CODE & 6103 (Space Above Line for Recorder's Use) GRANT OF AVIGATION EASEMENT (John Wayne Airport) ASSESSOR PARCEL # RECITALS: 1. The Grand Plan 1, LLC, a California limited liability company and The Grand Plan 2, LLC, a California limited liability company (collectively, the "Grantor"), is the owner of the fee simple estate in and to that certain real property situated in the County of Orange, State of California, commonly described as 1, 9 and 10 Hutton Centre and 101 E. Sandpointe Avenue, Santa Ana, California and more particularly described in Attachment No. 1, attached hereto and incorporated by this reference ("Subject Property"); 2. It is the desire of Grantor, for itself, its heirs, administrators, executors, successors, assigns, tenants, guests, and other persons in or using the Subject Property with the implied or express consent of Grantor, to grant to the City of Santa Ana, a political subdivision of the State of California (the "City"), an air and avigation easement, also known as a perpetual air, flight or noise easement, on, upon, over, across, above, or in the vicinity of the Subject Property, and to all of the Airspace (as hereinafter defined) above the Subject Property, whereby Grantor relinquishes certain rights relative to the Subject Property, as described in this Grant of Avigation Easement (this "Avigation Easement"); 3. The purpose of this Avigation Easement, and its acceptance by the City, includes granting the City an Avigation Easement permitting the unencumbered and unrestricted flight of aircraft to or from John Wayne Airport ("JWA"), owned and operated by the County of Orange, without liability to the City, to the aircraft operator, or to any other person lawfully operating aircraft to or from JWA in the navigable airspace of the United States (as defined at 49 U.S.C.S. §40102(a)(30)), and as that section of the United States Code (and the referenced regulations} existed on the effective date of this Avigation Easement, and in accordance with relevant regulations of the United States of America and the State of California, pursuant to the authority granted to the County Grant of Avigation Easement E-1 DOCSOC/1110339v 11 /24579-0001 75A-69 by the people and the State of California. As agreed upon by the parties, this Avigation Easement is calculated by reference to the Airport Environs Land Use Plan ("AELUP") for JWA Years 1990/2005 "Project Case" noise contours (as depicted in Appendix D of the AELUP for JWA dated December 19, 2002) plus 1.5 decibels ("dB") Community Noise Equivalent Level ("CNEL"); NOW, THEREFORE, for valuable consideration, receipt of which is hereby acknowledged: WARRANTIES AND COVENANTS: Grantor warrants and covenants to the City that as of the date hereof: Grantor holds the entire fee simple interest in the Subject Property; Grantor shall not convey its interest in the Subject Property, or execute, deliver, or permit hereafter recordation of any interest in the Subject Property, or any lien or encumbrance against the Subject Property (or any interest therein), until the earlier of the following events: (i) this Avigation Easement has been properly executed by Grantor, accepted by the City, and recorded by the Orange County Recorder; or (ii) thirty (30) days have elapsed after Grantor have delivered this Avigation Easement to the City, properly and fully executed and notarized. If the person executing this Avigation Easement is other than the Grantor, the person executing this Avigation Easement has represented to the City, in documentation separate from this grant, that he/she has been duly and lawfully authorized by Grantor to execute this Avigation Easement on behalf of Grantor. GRANT OF AVIGATION EASEMENT Grantor, individually and for its heirs, administrators, executors, tenants, guests, agents, successors, assigns, and other persons in or using the property with the implied or express consent of Grantor, hereby grants, conveys and assigns to the City and its successors, and assigns, a perpetual non-exclusive and assignable Avigation Easement and the right to enter or penetrate into or transmit through the Airspace above, on or in the vicinity of the Subject Property for the unobstructed use, passage or operation of all types of aircraft and the right to create or generate all things and consequences to the Subject Property that may be, or may be alleged to be, incident to or resulting from the use and enjoyment of said Airspace and any and all related aircraft and airport operations, including, but not limited to, those impacts and effects described in Section 5. This Avigation Easement shall be for air navigation, airport operations, aircraft sound and noise, aircraft avigation and flight in, to, over and through the Airspace above the Subject Property, as well as the imposition in, on, over, upon or in the vicinity of the Subject Property of noise, sound, vibration, fumes, fuel particles, dust, discomfort or other environmental effects incident to such aircraft operations and any and all resulting annoyance, inconvenience, or other interference with the use and enjoyment of the Subject Property and any consequent reduction in market value, all due to the operation of aircraft to and/or from JWA, including landing at, taking off from, taxiing, maintenance, or other aircraft or related facility operations at or on JWA. This Avigation Easement is for the use of such airspace by any aircraft, present or future, in whatever form or type, during operations at, on, to, or from JWA, including any future change to or increase in JWA's boundaries and/or in the volume or pattern of aircraft traffic or aircraft noise, by Grant of Avigation Easement E-2 DOCSOC/1110339x11 /24579-0001 75A-70 all existing or future types of aircraft, up to and including the AELUP for JWA Years 1990/2005 "Project Case" noise contours (as depicted in the AELUP for JWA, Appendix D) plus 1.5 dB CNEL, including the imposition on the surface of the Subject Property and on any and all structures on the Subject Property of such noise, vibration, fumes, fuel particles, dust, discomfort or other environmental effects incident to such aircraft operations and any and all resulting annoyance, nuisance, inconvenience, taking of or damage to the Subject Property, or any portion of the Subject Property, or other interference with the use and enjoyment of the Subject Property and any consequent reduction in market value. This Avigation Easement shall continue notwithstanding any future changes or increases in the type, volume, frequency, duration, or location of operations to, from or at JWA up to and including the AELUP for JWA Years 1990/2005 "Project Case" noise contours (as depicted in the AELUP for JWA, Appendix D) plus 1.5 dB CNEL. This Avigation Easement also includes all things that may be alleged to be incident to or resulting from the use and enjoyment of this Easement, including, but not limited to, the Grantee's continuing right to prevent, prohibit, clear and keep clear from the Airspace above the Property any buildings, portions of buildings, structures or improvements of any kind, and of trees, vegetation, or other objects that may cause interference with aircraft navigation and/or operations at JWA, including the right to remove or demolish those portions of such buildings, structures, improvements, trees, vegetation, or other objects which extend into the Airspace and, in the reasonable judgment of the Grantee, may cause interference with aircraft navigation and/or operations at JWA, and, at the reasonable discretion of the Grantee, the right to mark and light, or cause or require to be marked and lighted, as obstructions or hazards to air navigation or aircraft operations, any and all buildings, structures, or other improvements, and trees, vegetation, or other objects, which extend into the Airspace above the Property. This Avigation Easement also includes the Grantee's right of ingress to, passage within, and egress from the Property to inspect the Property, improvements or vegetation of any type on the Property and, to remove any building, structure, other improvement, tree or vegetation (or portion thereof) which extends into the Airspace in violation of this Section, or to install such lighting, or marking of any such improvement or vegetation as permitted by this Section; and for all other purposes described in this Section at reasonable times and after reasonable notice. Grantee shall use reasonable efforts to minimize any disturbance of the occupants of the Subject Property in exercising its rights hereunder. If any building, structure, other improvement, tree or vegetation (or portion thereof) extends into the Airspace in violation of this Avigation Easement, Grantee shall so notify Grantor, or its successors, of such violation and the requested corrective measure, which may include, but not be limited to, the installation of such lighting, or marking of any such improvement or vegetation, as required by law. If the Grantor, or its successors, do not correct such violation within thirty (30) days, or such shorter time period as may be required by Grantee due to an emergency or some other circumstance requiring more immediate action, the Grantee shall have the right of ingress to, passage within, and egress from the Property to remove any building, structure, other improvement, tree or vegetation (or portion thereof) which extends into the Airspace in violation of this Avigation Easement, or to install such lighting, or marking of any such improvement or vegetation, as required by law or as reasonably required by Grantee. The cost to remove any building, structure, other improvement, tree or vegetation (or portion thereof) which extends into the Airspace in violation of this Avigation Easement, or to install such lighting, or marking of any such improvement or vegetation as permitted by Section 7; and for all other purposes described Section 7 shall be borne exclusively by Grantor. As used in this Avigation Easement, the term "aircraft" shall mean any and all types of aircraft, whether now in existence or hereafter manufactured and developed, to include, but not be Grant of Avigation Easement E-3 DOC SOC/ 1110339v 11 /24579-000 ] 75A-71 limited to, jet aircraft, propeller drawn aircraft, aircraft powered by other means, civil aircraft, military aircraft, commercial aircraft, helicopters and all types of aircraft or vehicles now in existence or hereafter developed for the purpose of transporting persons or property through the air, by whomever owned or operated. As used in this Avigation Easement, the term "Airspace" shall mean the entire area above those certain imaginary surfaces over the ground surface of the Property that are within the Federal Aviation Regulations ("'FAR") Part 77 Surfaces, as specified in Advisory Circulars 70/7460-2K (height criteria) and 70/7460-1 H (standards for marking and lighting) and any and all successor revisions or regulations by the Federal Aviation Administration, any successor agency, or any other agency of the federal, state or local government of the United States of America exercising comparable authority except that additional area below those certain imaginary surfaces over the ground surface of the Property particularly described in Exhibit "A" attached hereto. It is expressly intended by Grantor and the City that this Avigation Easement shall not supersede or impair any existing prescriptive, avigation, or other easements, rights, or interests of the City, in or applicable to the Subject Property, if any, all of which easements, rights, interests, and any remedies related thereto are expressly reserved by the Ciry. In furtherance of this Avigation Easement, and rights herein granted, Grantor, and the heirs, administrators, executors, agents, successors, and assigns of Grantor, hereby covenant at all times hereafter, that idthey will not take any action or knowingly cause any electronic, light or other transmissions or emissions, construct or grow any obstruction, or discharge any fumes, dust or smoke on the Subject Property which would conflict or interfere with or infringe on the City's rights herein granted, or to otherwise impair the usability or function of JWA. The rights, easements, benefits, restrictions, covenants and agreements granted herein, including this Avigation Easement, shall continue notwithstanding any increase or other change in the type, boundaries, volume of operations, frequency, duration, noise, or pattern, location of air traffic to, from or at JWA. This Avigation Easement may not be modified, amended, terminated, or abandoned except by execution and delivery of an instrument executed and acknowledged by the City, or its agents, successors, and assigns, and Grantor agree(s) that, in the absence of such an instrument, no conduct or use of the Subject Property by Grantor for any period of time shall be construed to establish prescriptive rights in Grantor or its successors or assigns, nor shall any conduct by the City, or its agents, successors and assigns, or increase, diminution, or change in use of this Avigation Easement, or the operation or use of JWA by Grantee constitute an overburdening of this Avigation Easement or a termination or abandonment of this Avigation Easement. Construction of the "MacArthur Place" project (the "Project") at the Subject Property will require the use of construction cranes and related construction equipment. For purposes of this Avigation Easement, the City will not consider the temporary utilization of the construction cranes and related construction equipment that have a height that exceeds JWA FAR Part 77 imaginary surfaces as an encroachment on or in violation of this Avigation Easement, provided that all of the following apply: The Federal Aviation Administration ("FAA") has conducted any required aeronautical study of the proposed object(s) pursuant to FAA Order 7400.2E, and any and all successor revisions or regulations, and has issued a "Determination of No Hazard to Air Navigation" for the proposed objects; and Grant of Avigation Easement E-4 DOCSOC/ 1 110339v l 1/24579-0001 75A-72 All conditions recommended by the FAA in its "Determination of No Hazard to Air Navigation" are complied with, consistent with FAA standards and requirements. Extraordinary maintenance and repair activities (e.g., boiler replacement, fagade replacement, elevator equipment replacement, cooling tower replacement, seismic damage repair) maybe required after construction of the Project. For purposes of this Avigation Easement, the City will not. consider these types of extraordinary maintenance and repair activities as encroachment(s) on, or violations of, this Avigation Easement, provided that all of the following apply: The FAA has conducted any required aeronautical study of the proposed object{s) required to be utilized during the extraordinary maintenance and repair activities pursuant to FAA Order 7400.2E, and any and all successor revisions or regulations, and has issued a "Determination of No Hazard to Air Navigation" for the proposed objects; and All conditions recommended by the FAA in its "Determination of No Hazard to Air Navigation" are complied with, consistent with FAA standards and requirements. In the event of any disaster or other casualty directed against or affecting the building(s) located on the Subject Property which damages or destroys the building(s), Grantor shall be entitled to demolish, reconstruct, repair or replace the building(s) on the terms set forth above in Section 14 of this Avigation Easement, subject to any required FAA determination(s) and recommendation(s). The parties to this Avigation Easement acknowledge and agree that the easement, and all the rights, easements, benefits, restrictions, covenants and agreements set forth herein shall run with the land of the Grantor and the City, and any grantee, heir, agent, successor or assign of the Grantor who acquires any estate or interest in or right to use the Subject Property shall be bound by this Avigation Easement for the benefit of JWA and the City, and its agents, successors and assigns, including, without limitation, the tenants and licensees of the City, and all users of JWA. This Avigation Easement and all rights pertaining hereto is hereby vested in the Grantee, its successors and assigns, forever and without limit in time, and shall be binding upon and inure to the benefit of the successors and assigns of Grantor. Grantor, and the grantees, heirs, agents, successors, and assigns of Grantor, hereby fully waive and forever release, and covenant not to assert or bring any right or cause of action, which it or they might now have, or which it or they may have in the future, against the City, its agents, successors, and assigns, or against the tenants, licensees, permittees, or users of JWA, caused by or relating to the use of this Avigation Easement or the exercise of rights under this Avigation Easement. This grant of this easement shall not operate to deprive the Grantor, its heirs, agents, successors, and assigns, of any rights which may from time to time arise against any air carrier or private operator for negligent or unlawful operation of aircraft. In the event that any one or more covenant, condition, right or other provision contained in this Avigation Easement is held to be invalid, void, or illegal by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Avigation Easement and shall in no way affect, impair, or invalidate any other covenant, condition, right or other provision contained in this Avigation Easement. This Avigation Easement constitutes an enforceable restriction pursuant to the provisions of California law, including, but not limited to, Section 21652 of the California Public Utilities Code, Grant of Avigation Easement E-5 DOC SOC/ 1110339v 11/24579-0001 75A-73 and shall bind Grantor and the grantees, heirs, administrators, executors, lessees, tenants, permittees, agents, successors, and assigns of Grantor(a), and each and all of them, and shall be appurtenant to, and for the benefit of, the real property commonly known as JWA, which is more particularly described in Attachment No. 2 attached hereto. Dated: , 2005 GRANTOR: THE GRAND PLAN 1, LLC, a California limited liability company By: Name: Title: THE GRAND PLAN 2, LLC, a California limited liability company By: Name: Title: Grant of Avigation Easement E-6 DOCSOC/l 110339v1 ] /24579-0001 75A-74 ATTACHMENT NO. 1 TO EXHIBIT E SUBJECT PROPERTY DESCRIPTION Attachment No. 1-1 Grant of Avigation Easement t0 EXhlblt E DOCSOC/ 11 ] 0339v 11 /24579-0001 75A-75 ATTACHMENT NO. 2 TO EXHIBIT E JWA PROPERTY DESCRIPTION Attachment No. 2-1 Grant ofAvigation Easement to Exhibit E DOCSOC/11 l 0339v 11/24579-0001 75A-76 CERTIFICATE OF ACCEPTANCE This is to certify that the interest in the real property conveyed by the Easement Deed dated from THE GRAND PLAN 1, LLC and THE GRAND PLAN 2, LLC to the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California, is hereby accepted by the undersigned officer or agent on behalf of the City Council pursuant to authority conferred by Ordinance No. NS-2352 and Section No. 33-55 of the Santa Ana Municipal Code adopted by the City Council on June 1, 1998, in compliance with California Government Code Section 27281 and the grantee consents to recordation thereof by its duly authorized officer. Dated: CITY OF SANTA ANA By: Name: Title: City Manager Grant of Avigation Easement Certificate of Acceptance DOCSOC!] 110339v1 1 /245 79-000 1 75A-77 ACKNOWLEDGMENT STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE } On , 20_, before me personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature Grant of Avigation Easement Acknowledgment DOCSOC/1110339v 1 1 /245 79-000 ] 75A-78 ~_ EXHIBIT F LAKE IMPROVEMENTS Exercise path with markers 2. Upgraded/enhanced landscaping around the Lake with large water oriented shade trees 3. Dancing water jets in the Lake 4. An amphitheatre on the green (back side of the Lake Towers facing the lake) A terraced pedestrian plaza at the base of the Lake Towers F-1 DOCSOC/1110339v] 1/24579-0001 75A-79 ~~L ~(~~~ FIRST MRER CAN T~TLE COMPANY ` ~ ~ NATIONAUCOMMERCIALSERVlCES COMMERCIAUINDUSTRIAL DIVISION ~$-1000--1'1 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza M-30 P.O. Box 1988 Santa Ana, California 92702 FREE RECORDING GOVERNMENT CODE & 6103 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA, THE GRAND PLAN 2, LLC, NDC SKYLINE ASSOCIATES, LLC, and INTEGRAL COMMUNITIES I, INC. Dated: `~'~2008 DOCSOC/ 1275524v 10/024579-0001 This Document was electronically recorded by First American National C~~@$c~4 Recorded in Official Records, Orange County Tom Daly, Clerk-Recorder ~~II~N~~II~~~u~u~I~A~II~~~il~~u~~l~~~~l~~~~ll~~~l~~~~l~~ NO FEE 2008000349227 01:40pm 07/22/08 105 59 A12 12 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 COPY 75A-80 THIS INSTRUMENT FILED FOR RECORD 8Y FIRST AMERICAN TITLE COMPANY AS AN ACCOMMODATION ONLY R HAS NOT BEEN EXAMINED AS T01TS EXECUTION OR AS TO ITS EFFECT UPON THE TITLE. A-2008-204 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA, GRAND PLAN 2, NDC SKYLINE ASSOCIATES, LLC, AND INTEGRAL COMMUNITIES I, INC. This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT ("First Amendment") is entered into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California ("City"), and THE GRAND PLAN 2, LLC, a California limited liability company ("GP2"), NDC SKYLINE ASSOCIATES, LLC, a Delaware limited liability company ("Skyline") and INTEGRAL COMMUNITIES I, INC., a Delaware corporation ("Integral Communities I"). 1. This First Amendment is entered into with reference to the following facts: 1.1 The Grand Plan 1, LLC, a California limited liability company ("GP1") and GP2, on the one hand, and City, on the other hand, entered into that certain Development Agreement dated August 4, 2005 and recorded in the Orange County Official Records on July 21, 2005 as Instrument No. 2005000565108 ("Development Agreement") pursuant to which, among other things, Owner (as defined in the Development Agreement) is required to install Signs and Public Art at a cost of not to exceed Five Hundred Thousand Dollars ($500,000) all of which was to be installed prior to the issuance by the City of the first certificate of occupancy for any Element. GP1 and GP2 subsequently assigned its rights and obligations under the Development Agreement with respect to Lake Towers to Skyline and GP 1 assigned its rights and obligations under the Development Agreement with respect to Integral to Integral Communities I. Capitalized terms not defined herein shall have the meaning set forth in the Development Agreement. 1.2 Skyline, GP2, and City now desire to amend the Development Agreement so as to remove the requirement for the installation of the Signs and to provide phasing for the installation of the Public Art. 2. Section 2.54 and 2.59 are hereby deleted in their entirety. 3. Section 5.1.7 is hereby deleted and replaced with the following: SECTION 5.1.7. Development, Construction and Completion of Public Art. Owner shall include within the Project, a single or grouped permanent work(s) of public art consistent with the Public Art Plan (the "Public Art") at a cost not to exceed Five Hundred Thousand Dollars ($500,000) ("Public Art Fee"). 4. EXHIBIT B, PUBLIC ART PLAN is hereby deleted and replaced with the document attached hereto and referenced as Exhibit B. 5. Except as amended herein the Development Agreement shall remain in full force and effect in accordance with its terms. DOC SOC/ 1275524v l 0/0245 79-0001 75A-81 IN WITNESS WHEREOF, this First Amendment has been executed by the City of Santa Ana and by Owner. Dated this ~ day of~, 2008. THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California By DAVID N. REAM City Manager ', Approved as to Form: By OSEPH LET City Attorn ~ _.~, 3,. ~., ,• ~ sM'I;'~, b o- ~` r' a ~~. ~ ~ ` M . ~,,~ [Signatures continue on following page] 2 DOCSOC/ 1275524v 10/024579-0001 75A-82 THE GRAND PLAN 2, LLC, a California limited liability company By -- l/~-p Name ~ u c -~ is ~ D ~~„~ Its JL~(\c~ ~nhr+ r NDC SKYLINE ASSOCIATES, LLC a Delaware limited liability company B ~"w~ Y- Name _ C u r -~-~ ~ R b~s~~ ItS merest c~e n1' INTEGRAL COMMUNITIES I, INC., a Delaware corporation By Name (' i'n i 0~ M .1,41 o S-t,,~r Its ~y' DOCS OC/1275524v 10/024579-0001 75A-83 EXHIBIT B PUBLIC ART PLAN 1. The Public Art shall be designed, constructed and installed by the Owner. 2. A Final Design Plan, with respect to the Element for which building permits are first issued (the "First Element"), shall be submitted to the City's Planning Commission within thirty (30) days prior to the issuance of a Final Certificate of Occupancy for the First Element; thereafter a Final Design Plan for each subsequent Element (combining Cinema Towers and the Condo/Office Project) shall be submitted to the City's Planning Commission within one hundred fifty (150) days prior to issuance of a Final Certificate- of Occupancy for such subsequent Element (combining Cinema Towers and the Condo/Office Project). The Final Design Plan shall (i) identify one (1) or more specific items of Public Art for one (1) or more specific locations and/or application, and (ii) specify the timing of the installation of the Public Art which installation shall occur not later than the first (1st) anniversary date of the City's approval of the Final Design Plan for each respective Element, but in no event shall all required Public Art be installed later than ninety (90) days following the first utility release on the last Element to be constructed. Owner shall have committed, by written contract, to expend not less than One Hundred Twenty-Five Thousand Dollars ($125,000) in connection with the Public Art upon the issuance of a certificate of occupancy for each of the following (i) Lake Towers, (ii) Cinema Towers and/or the Condo/Office Project, (iii) Integral, and (iv) Retail Project, but in no event exceeding an aggregate of Five Hundred Thousand Dollars ($500,000). Skyline shall be responsible for the Public Art for Lake Towers and GP2 shall be responsible for the Public Art for all other Elements. 3. The Public Art should invite participation and interaction, inspire, add local meaning, interpret the community by revealing its culture or history, and/or capture or reinforce the unique character of the new place. 4. The Public Art should be constructed using durable materials and finishes including but not limited to stone or metal. 5. The Public Art should be comprised of a single or grouped permanent work(s) at a prime location visable to the public and sited to complement features such as plaza or architectural components so that the Public Art is an integral part of the development site. 6. No Public Art shall include advertising of any type, including but not limited to products, services or businesses. All Public Art shall be properly maintained at all times, be free of any graffiti and shall not incorporate any flashing or distracting form of illumination. The Owner may assign ownership, maintenance and/or repair responsibilities of the Public Art to one or more Owners' Association(s). B-1 DOCSOC/ 1275524v 10/024579-0001 75A-84 9. All Public Art shall remain on the Property and may not be removed without the approval of the Planning Commission. 10. Expenses not included in the Public Art Fee. i. Expenses to locate the artist(s) (e.g., airfare for artist interviews, etc.) ii. Architect and Landscape Architect fees incurred in connection with the Public Work(s) of Art. iii. Landscaping around Public Work(s) of Art that is not included as part of the artist's sculpture furnishings, including, but not limited to, functional structures, prefabricated water or electrical features not created by the artist, and ornamental enhancements. iv. Utility fees associated with activating electronic or water generated artwork. v. Lighting elements not integral to the illumination of the Public Art. vi. Publicity, public relations, photographs, educational materials, business letterhead or logos bearing artwork image. vii. Dedication ceremonies, including sculpture unveilings or grand openings. B-2 DOCSOC/ 1275524v 10/024579-0001 75A-85 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza M-30 P.O. Box 1988 Santa Ana, California 92702 FREE RECORDING GOVERNMENT CODE § 6103 SECOND AMENDMENT TO DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and NDC SKYLINE ASSOCIATES, LLC and INTEGRAL COMMUNITIES I, INC. Dated: , 2009 Ordinance No. NS- EXHIBIT 4 75A-86 SECOND AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA, NDC SKYLINE ASSOCIATES, LLC, and INTEGRAL COMMUNITIES I, INC. This SECOND AMENDMENT TO DEVELOPMENT AGREEMENT ("Second Amendment") is entered into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California ("City"), NDC SKYLINE ASSOCIATES, LLC, a Delaware limited liability company ("Skyline"), and INTEGRAL COMMUNITIES I, INC., a Delaware corporation ("Integral"). 1. Reference to Facts. This Second Amendment is entered into with reference to the following facts: 1.1 Capitalized terms not defined herein shall have the meaning set forth in the Development Agreement. 1.2 The Grand Plan 1, LLC, a California limited liability company ("GP1") and The Grand Plan 2, LLC, a California limited liability company ("GP2"), on the one hand, and City, on the other hand, entered into that certain Development Agreement dated August 4, 2005 and recorded in the Orange County Official Records on July 21, 2005 as Instrument No. 2005000565108 (as amended, the "Development Agreement") pursuant to which, among other things, Owner (as defined in the Development Agreement) was granted the vested right to develop a mixed use Project with residential condominiums and office/commercial/retail uses, as more particularly described therein. GP1 and GP2 subsequently assigned its rights and obligations under the Development Agreement with respect to Lake Towers to Skyline, and GP 1 assigned its rights and obligations under the Development Agreement with respect to the Integral Project to Integral Communities I, Inc., a Delaware corporation. 1.3 As set forth above, Integral is the current owner of the Integral Project, having been assigned the Integral Project pursuant to the terms and provisions of the Development Agreement. 1.4 The original Development Agreement and Entitlements (i) described the Lake Towers Element of the Project as consisting of two (2) towers with "for-sale" condominium units, and (ii) described the Integra( Project as consisting of "a five (5) or six (6) story building containing two hundred seventy-six (276) for-sale residential condominium units." 1.5 Lake Towers is nearing completion and, concurrently herewith, the City has approved certain modifications to existing Entitlements (including, Conditional Use Permit No. 2005-10) to permit Skyline to rent (and offer for rental) some or all of the Residential Units comprising Lake Towers (irrespective of whether any Residential Units are sold to third party purchasers). 3/12/2009 6:28:00 PM 2 2nd amendment to development agreement2 75A-V 1.6 The Integral Project is still in the planning stage and, concurrently herewith, the City has approved certain modifications to existing Entitlements (including, Conditional Use Permit No. 2005-15) to permit Integral to rent (and offer for rental) some or all of the Residential Units comprising the Integral Project (irrespective of whether any Residential Units are sold to third party purchasers). 1.7 In connection with the foregoing, Skyline, Integral and City now desire to amend the Development Agreement to provide Skyline and Integral with the ability to rent (and offer for rental) some or all of the Residential Units comprising Lake Towers and Integral Project, respectively, in accordance with applicable Entitlements. 2. Right to Rent. Skyline, Integral and the City hereby acknowledge and agree that Skyline and Integral have the right to rent (and offer for rental) some or all of the Residential Units comprising Lake Towers and/or the Integral Project, respectively, in accordance with applicable Entitlements. The foregoing shall in no way be deemed to impose an obligation on Skyline or Integral to rent (or offer for rental) any or all of the Residential Units, or preclude Skyline or Integral from selling and renting (and offering for sale and rental) the Residential Units concurrently. 3. Modification of Certain Provisions. The Development Agreement is hereby amended and supplemented in the following particulars: 3.1 Section 1.1(1). The phrase "for-sale residential condominiums" appearing in Section 1.1(1) of the Development Agreement is hereby amended and restated to read as "for-sale condominium units/for-rent residential units." 3.2 Section 2.43(1). The phrase "three hundred fifty (350) for sale residential condominium units" appearing in Section 2.43(1) of the Development Agreement is hereby amended and restated to read as "three hundred forty-nine (349) for-sale condominium units/for- rent residential units." 3.3 Section 2.43(3). The phrase "two hundred seventy-six (276) for-sale residential condominium units" appearing in Section 2.43(3) of the Development Agreement is hereby amended and restated to read as "two hundred seventy-six (276) for-sale residential condominium units/for-rent residential units." 3.4 Section 2.50. The phrase "each of the for sale residential units" appearing in Section 2.50 of the Development Agreement is hereby amended and restated to read as "each of the for-sale (and with respect to Lake Towers and Integral Project, if applicable, the for-rent) residential units." 3.5 Section 4.1. Clause (ii) appearing in Section 4.1 of the Development Agreement is hereby amended and restated to read in its entirety as follows: "(ii) the granting of Certificates of Occupancy (or similar permission to occupy) for the final Element of the Project and, except with respect to Lake Towers and/or Integral Project, sale of all Residential Units." 3.6 Section 4.3. Clause (f) appearing in Section 4.3 of the Development Agreement is hereby amended and restated to read in its entirety as follows: 3/12/2009 6:28:00 PM 2nd amendment to development agreement2 75A-V V "Buyer's of Residential Units (and with respect to the Lake Towers Element and/or the Integral Project, if applicable, buyer's or tenant's of Residential Units). 4. Full Force and Effect: Countemarts. Except as amended herein the Development Agreement shall remain in full force and effect in accordance with its terms. This Second Amendment may be executed in any number of counterparts, all of which shall constitute one and the same instrument. [Signature and Notary Pages Follow] 3/12/2009 6:28:00 PM 2nd amendment to development agreement2 75A-89 IN WITNESS WHEREOF, this Second Amendment has been executed by the City of Santa Ana, Skyline and Integral. Dated this day of , 2009. "CITY" THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California By DAVID N. REAM City Manager Approved as to Form: By. JOSEPH W.FLETCHER City Attorney "SKYLINE" NDC SKYLINE ASSOCIATES, LLC, a Delaware limited liability company By _ Name Its "Integral" INTEGRAL Communities I, INC., a Delaware corporation By _ Name Its 3/12/2009 6:28:00 PM 2nd amendment to development agreement2 75A-90 STATE OF CALIFORNIA COUNTY OF ss. On before me, ,Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC STATE OF CALIFORNIA COUNTY OF ss. On before me, ,Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC 3/12/2009 6:28:00 PM 2nd amendment to development agreement2 75A-91 STATE OF CALIFORNIA ) ss. COUNTY OF ) On before me, ,Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC 3/12/2009 6:28:00 PM 2nd amendment to development agreement2 75A-92 Conditional Use Permit No. 2005-10 March 23, 2009 Page 1 of 2 Findings of Fact A. Will the proposed use provide a service or facility which will contribute to the general well being of the neighborhood or community? The Skyline Towers multi-family residential project at 9 and 15 MacArthur Place will provide a service to the community by providing high-quality residential housing stocks that will enhance the property values of the surrounding neighborhoods. Conditions of approval have been included to ensure the quality and the attractiveness of the overall design which will contribute to the general well being of the community. B. Will the proposed use under the circumstances of the particular case be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity? The proposed multi-family residential use, in conjunction with the rest of the MacArthur Place South development, will not be detrimental to persons residing and working in the area. The short-term and long-term unavoidable adverse impacts identified in Environmental Impact Report No. 2004-02 pertaining to aesthetics, air quality, and traffic and transportation can be addressed through the adoption of Statement of Overriding Considerations by the City Council to balance the economic, legal, social, and technological and/or other benefits of this project against the unavoidable environmental impacts. Any other negative or adverse impacts will be mitigated through mitigation measures identified in Environmental Impact Report No. 2004-02. C. Will the proposed use adversely affect the present economic stability or future economic development of properties surrounding the area? The proposed multi-family residential project will not adversely affect the economic stability of the area. The multi-family residential component will provide a customer base to the retail and restaurant uses, which will reinforce the economic viability of the project and will assist in identifying MacArthur Place South as a viable mixed-use community. 75~T~3 Conditional Use Permit No. 2005-10 March 23, 2009 Page 2 of 2 D. Will the proposed use comply with the regulations and conditions specified in Chapter 41 for such use? The project will be in compliance with all applicable provisions of Chapters 34 and 41 of the Santa Ana Municipal Code as well as the provisions of the SD-76 zoning district except for the parking, tandem parking and setback requirements. Three variances have been approved to deviate from these standards. E. Will the proposed use adversely affect the General Plan or any specific plan of the City? The proposed project will not adversely affect the General Plan as multi-family residential development and ancillary uses are conditionally permitted within the Specific Development No. 76 (SD-76) zoning district. Further, General Plan Land Use Element Policy 1.3 supports high-density residential development within the City's District Centers as a part of a master-planned mixed-use development. Also, Policy 1.4 promotes the maintenance and fostering of a variety of residential land uses in the city. 75A-94 MARCH 23, 2009 PAGE 1 OF 17 Conditions of Approval Conditional Use Permit No. 2005-10 (Skyline Towers) is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. In addition, it shall meet the following conditions of approval: The applicant must comply with each and every condition listed below prior to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the development project. Failure to comply with each and every condition may result in the revocation of the conditional use permit approval. A. Planning Division 1. All proposed site improvements must conform with the Site Plan Review approval of DP No. 03-79. 2. Any amendment to this conditional use permit must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the conditional use permit must be amended. 3. A Parking Management Plan documenting how the tandem parking stalls will function must be submitted prior to building plan check. 4. The project shall incorporate on-site professional property management for the residential component. 5. Balconies for the project shall maintain a minimum dimension of not less than six feet in any direction. 6. Covenants, Conditions and Restrictions (CC&Rs) shall be provided for the project. At a minimum, the CC&Rs shall include provisions pertaining to owner occupancy, restrictions on home-based businesses, the prohibition of storage on balconies, and a restriction on truck delivery hours to non- peak periods shall be submitted prior to building plan check. MARCH 23, 2009 PAGE 2 OF 17 7. Prior to submittal into building plan check, detailed elevations shall be submitted to include exterior finishes, materials, and colors subject to approval of the Planning Manager. 8. All parking for the project shall be made available free of charge. Two parking spaces per dwelling unit shall be provided as a part of the deed for each dwelling unit. 9. A Public Art Plan which proposes a specific work(s) of art for a specific location(s) shall be submitted to the Planning Commission for review and approval. All public art approved by the Planning Commission shall be completely installed prior to the issuance of a certificate of occupancy for the project. 10. A detailed landscape plan must be reviewed and approved prior to issuance of any building permits. In addition to the landscaping palette, the plan shall include details on the hardscape design, lighting concepts and outdoor furniture. At a minimum, the project shall incorporate the amount and size of landscaping as shown on Sheet MLP1.1. The exact specifications for these items are subject to the review and approval of the Planning Commission. 11. After project occupancy, landscaping is to be maintained to include the minimum level of plant materials installed at the time of occupancy as required by the approved plans. 12. A detailed amenity deck plan must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the hardscape design, lighting concepts and outdoor furniture for the amenity deck as well as an installation plan. The exact specifications for these items are subject to the review and approval of the Planning Commission. The amenity deck shall be maintained in the same condition as installed at the time of occupancy. 13. A detailed water feature plan must be reviewed and approved prior to issuance of any building permits. The plan shall include a minimum of one water feature within the motor court, elevations, hardscape design, lighting concepts and an installation plan. The exact specifications for these items are subject to review and approval of the Planning Commission. The water feature(s) shall be maintained in the same condition as installed at the time of occupancy. 75A-96 MARCH 23, 2009 PAGE 3 OF 17 14. The following items must be included as exterior amenities for the development: Enhanced paving in the motor court, enhanced paving on the walkways, an outdoor fireplace, barbeque and a pool and spa on the amenity deck. The exact specifications for these items are subject to the review and approval of the Planning Commission. 15. An interior building amenity plan of the fitness rooms, lounge, yoga room and spas must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the various finishes and equipment to be provided in these rooms. The exact specifications for these items are subject to the review and approval of the Planning Manager. 16. The following items must be included as interior amenities within the common areas: Concierge services for the residents, granite counter tops, hardwood flooring or equivalent, and gas fireplaces. The exact specifications for these items are subject to the review and approval of the Planning Manager. 17. The following items must be included as interior amenities within each unit: granite counter tops or equivalent, hardwood flooring or equivalent, General Electric Monogram appliances or equivalent, tiled bathroom and shower walls, stain grade hard wood cabinets and individual laundry hook-ups. The exact specifications for these items are subject to the review and approval of the Planning Manager. 18. An elevator lobby plan of each lobby must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the finishes and flooring to be provided. The exact specifications for these items are subject to the review and approval of the Planning Manager. 19. Pedestrian walkways shall be provided through all lots to establish pedestrian pathways throughout the development as shown on Exhibit 13. The amenities to be provided along this pathway shall include decorative concrete and paving, accent lighting, and landscape planters as shown on the plans. The materials and design of the walkway is subject to the review and approval of the Planning Manager. The improvements in each phase must be completed prior to occupancy of the first unit in the respective phases. 75A-97 MARCH 23, 2009 PAGE 4 OF 17 20. One storage locker shall be provided for each residential unit. The lockers shall be available at no cost to the residents and shall be a minimum of 192 cubic feet in size. 21. Cast iron drain pipes shall be provided for the project. 22. Smart wiring, including cable television and high-speed cable for computers, shall be provided for each unit and within the project's common areas. 23. Signage to direct customers and guests to the adjacent parking structure shall be provided. A directional sign plan needs to be submitted and approved by the Planning Manager prior to issuance of a certificate of occupancy. 24. Construction workers for the project shall be prohibited from parking in the adjacent neighborhoods. 25. Prior to issuance of building permits, a Waste Management Plan shall be submitted to the Planning Manager for approval. The plans shall include information on items such as pick-up, delivery, and types of bins required. 26. Prior to occupancy of any units, a rental housing execution plan must be submitted to the Planning Manager for review and approval. At a minimum the plan shall identify the location of employee and visitor parking, the location of the rental office, hour of operation for the rental office, and signage affiliated with the Rental Housing Operational Plan. In addition, the rental plan must clearly note that the parking and project amenities must be provided free of charge to the residence. (Added by the Planning Commission on March 23, 2009) Mitigation Measures 27. Prior to issuance of building permits, the project developer shall ensure that the building plans reflect the following information: outdoor lighting fixtures adjacent to exterior doors and within walkways and parking lots shall generate a minimum 1.0 foot candle level of light during normal operation hours. During non-operating hours, outdoor lighting fixtures shall generate no less than .25 foot candle level of light. All lighting shall be directed towards the interior of the project site. 75A-98 MARCH 23, 2009 PAGE 5 OF 17 28. Prior to issuance of building permits, building plans for the proposed project shall reflect the use of non-reflective building materials to minimize light and glare impacts. 29. Prior to the issuance of building permits, a Final Landscape Plan for each building component of the project shall be approved by the City of Santa Ana Planning and Building Agency. The Final Landscape Plan shall be based on the conceptual landscape plan included in the EIR. 30. Prior to issuance of Certificate of Occupancy Permits, the required landscaping for each building component of the project shall be installed to the satisfaction of the City of Santa Ana Planning Department. 31. Prior to the issuance of a building permit, the project developer shall provide the Planning Manager plans that incorporate lighting and any other conditions in the manner required by the FAA during the construction phase (e.g. for the cranes) and after completion. 32. Pursuant to state law, prior to issuance of a certificate of use and occupancy permit, the project proponent shall provide evidence to the City of Santa Ana that a Notice of Airport in the vicinity has been recorded on the deed for each residential unit and shall remain so recorded so as long as the airport is in operation. 33. As required by the AELUP, prior to issuance of the certificate of use and occupancy, the City shall ensure that the sales office for the residential unit posts a conspicuous sign informing potential buyers to the presence of the airport. The notice shall be in the same language as the need notice. 34. Prior to the issuance of a building permit, the project developer shall provide evidence to the Planning Manager that an FAA "No Hazard" determination has been secured for the operation of construction cranes. The project developer shall demonstrate compliance with any conditions imposed by the FAA. 35. During construction, the contractor shall be required to comply with SCAQMD Fugitive Dust Rule 403 to suppress dust generated by construction operations. To ensure compliance with SCAQMD Fugitive Dust Rule 403, grading plans and demolition plans for the proposed project shall reflect the following notes: 75A-99 MARCH 23, 2009 PAGE 6 OF 17 • All materials excavated or graded shall be sufficiently watered to prevent excessive amounts of dust. Watering with complete coverage shall occur at least twice daily, once in the late morning and once after work is done for the day. • All clearing and earthwork activities shall cease during periods of high winds (winds greater than 25 mph averaged over one hour) or during Stage 1 or Stage 2 smog episodes. • Internal roadways and project site entry and exit points shall be cleaned at the end of each day by the project developer. Dust and debris from construction activities that migrates or is carried onto MacArthur Boulevard or Main Street adjacent to the project site shall also be cleaned each day. • All material transported off-site shall either be sufficiently watered or securely covered to prevent excessive amounts of dust. Haul trucks leaving the site shall have a minimum freeboard distance of 12 inches. • Construction equipment leaving the project site shall be wheel washed. • The amount of area disturbed by clearing and earthwork activities shall be minimized at all times. • Equipment engines shall be maintained in good condition and in proper tune according manufacturer's specifications. • To the extent feasible, construction equipment shall use alternative clean fuels such as compressed natural gas equipment with oxidation catalysts. If alternative clean fuels are not feasible, gasoline powered construction equipment shall be used. • Construction equipment operating on diesel fuel shall use particulate filters or low sulfur diesel. • To the extent feasible construction operations shall use electricity from power poles in-lieu of temporary diesel or gasoline-powered generators. 75A-100 MARCH 23, 2009 PAGE 7 OF 17 36. Prior to commencement of construction activities, the project developer shall identify to the City a construction relations officer to act as a community liaison concerning on-site activity, including resolution of issues related to dust generation from grading/paving activities. A publicly visible sign shall be posted with the name of construction relations officer and a telephone number. 37. During finish work, the construction contractor shall ensure the minimization of ROG emissions. Building plans for the project shall specify and require the use of pre-coated building materials, use of high pressure-low volume (HPLV) paint applicators with 50 percent efficiency, and use of lower volatility paint not to exceed 100 grams of ROG per liter. 38. During construction and grading activities, the developer's construction contractor shall comply with the measures set forth in the Storm Water Pollution Prevention Plan (SWPPP) to ensure that airborne dust is kept to a minimum. 39. Prior to issuance of building permits and to the extent feasible, building plans for the proposed project shall reflect the use of the following measures. • Use low-polluting high energy-efficient appliances • Install solar panels on roofs to supply electricity for heating and cooling • Use double-paned windows to reduce thermal loss • Install automatic lighting on/off controls and energy- efficient lighting • Use light colored roofing materials in new construction to deflect heat away from buildings. 40. During grading operations, special handling of on-site soils shall be required due to the high moisture content of the soils, which is well above optimum moisture conditions. The City of Santa Ana shall monitor the grading contractor to ensure stabilization of the soils during grading prior to placing and compacting fill soils over wet sub-grade soils, as recommended in the geotechnical investigation prepared by Geotechnical Professionals, Inc. 75A-101 MARCH 23, 2009 PAGE 8 OF 17 41. Prior to issuance of building permits, the project developer shall ensure that pile foundations are incorporated into the project design to mitigate the potential settlement hazards beneath the proposed buildings. Pile foundations shall be installed according to the recommendations provided in the project geotechnical report. 42. Prior to issuance of building permits, the project developer shall ensure that the subterranean portion of the structures is designed and installed to resist hydrostatic pressure and be a water-proof barrier between the existing soils and subterranean portions of the buildings. This design and installation shall be consistent with the recommendations provided in the project geotechnical report. 43. Prior to initiation of project grading, the project developer shall ensure that all existing utilities will be relocated, abandoned and removed, rerouted, or protected in coordination with the project developer and affected utility companies. 44. Prior to issuance of a grading permit for project construction, the project developer shall ensure that a Final Geotechnical Report on the project site is prepared. All recommendations from this Final Geotechnical Report shall be incorporated into the final grading plan for the project. 45. Prior to issuance of building permits, the project developer shall ensure that all structures on the site are designed in accordance with the seismic design provisions set forth in the Final Geotechnical Report and the Uniform Building Code in order to promote safety in the event of a seismic event. 46. Prior to issuance of grading permits, the project developer shall determine and demonstrate to the City of Santa Ana that the foundation piles for the project would not intrude into the Orange County groundwater basin. In the event the foundations intrude into the groundwater basin, the project developer shall obtain approval and/or permits from the Orange County Water District and the Regional Water Quality Control Board. Any measures required by these agencies will be incorporated into the final design and construction specifications for the project. 75A-102 MARCH 23, 2009 PAGE 9 OF 17 47. Prior to issuance of grading permits, the project developer shall ensure that provisions set forth in the Final Geotechnical Report regarding dust control measures during site preparation, grading and construction are incorporated into the final construction specifications for the project. 48. Prior to issuance of Certificate of Occupancy permits, the project developer shall submit to the City of Santa Ana CC&Rs for each residential project. The CC&Rs shall outline the environmental awareness, conditions and Best Management Practices regarding the handling and storage of hazardous materials as identified in the Water Quality Management Plan for MacArthur Place South. 49. Prior to issuance of grading permits, the project developer shall provide proof to the City of Santa Ana of an NPDES permit from the RWQCB for on-site dewatering activities. 50. The residential management companies shall ensure that post- construction Best Management Practices (BMPs) are strictly adhered to by all building occupants and tenants. 51. Prior to issuance of a demolition permit, the project developer shall prepare an asbestos survey to determine the presence of asbestos containing building materials. The survey shall be submitted to the City's Environmental Coordinator for review. If asbestos is identified, proper precautions shall be taken during demolition in compliance with California environmental laws, regulations and policies. 52. Prior to issuance of a demolition permit, the project developer shall prepare a lead paint survey to determine the presence of lead based paint. The survey shall be submitted to the City's Environmental Coordinator for review. If lead based paint or mercury is identified, proper precautions shall be taken during demolition in compliance with California environmental laws, regulations and policies. 53. Prior to occupancy of residential units, the project developer shall ensure that CC&Rs for the community homeowners associations are recorded specifying maintenance responsibilities for all BMPs identified in the Water Quality Management Plan. 75A-103 MARCH 23, 2009 PAGE 10 OF 17 54. Prior to issuance of a grading permit for the project, the project developer shall prepare and submit a Notice of Intent (NOI) to the State Water Resources Control Board (SWRCB) The developer will also submit the NOI and the project Water Discharge identification Number (WDIN) provided by the SWRCB to the City of Santa Ana City Engineer. 55. During all site preparation, grading and construction, the project developer shall ensure that the project contractor complies with all applicable requirements of the NPDES permit, the Drainage Area Management Plan (DAMP), and the City's Local Implementation Plan (LIP). BMPs from the DAMP and the LIP will be implemented by the project contractors, as appropriate during site preparation, grading and construction. 56. Prior to issuance of a grading permit, the project developer shall prepare a Final Storm Water Pollution Prevention Plan (SWPPP). This plan shall be submitted and approved by the City Engineer prior to initiation of any grading activity. The project shall maintain the SWPPP on the construction site throughout the construction period. 57. During all site preparation, grading and construction, the project developer shall ensure that its contractor implements the provisions of the SWPPP. 58. Prior to the issuance of grading permits, the project developer shall submit a Final Water Quality Management Plan (WQMP) based on the Final Grading Plan, to be approved by the City's Director of Public Works. The WQMP shall be consistent with the DAMP and shall contain provisions and BMPs for construction and operation conditions. 59. Prior to the issuance of building permits, the project developer shall pay the City's drainage impact fee. 60. Prior to the issuance of grading permits, the project developer shall verify that structural BMPs have been permanently incorporated into project plans. Such BMPs shall ensure that pollutants from project-related storm water runoff are mitigated consistently with applicable state and local standards. 75A-104 MARCH 23, 2009 PAGE 11 OF 17 61. Prior to issuance of grading permits, the project developer shall submit a final drainage plan to the City identifying the exact size and location of drainage facilities. 62. Prior to issuance of grading permits, the project developer shall provide proof of an NPDES permit from RwQCB to the City for onsite dewatering activities. 63. Prior to issuance of building permits for tenant improvements for restaurant uses, the project developer shall ensure that the proposed restaurants are fitted with grease interceptors to the size and capacity as designated by the City of Santa Ana Building Division. 64. Prior to issuance of building permits, building plans shall reflect the construction of noise barriers to ensure an exterior noise level of 65 CNEL or less around patios and balconies that are considered open space by the City of Santa Ana. The barriers shall be constructed of materials that provide a surface density of at least four pounds per square foot and shall be continuous (without gaps or gates). The height of the barriers shall be sufficient to reduce the exterior noise level to a CNEL of 65 dB or less, and shall be determined by a qualified acoustical consultant as part of the final engineering design of the project. 65. Prior to issuance of building permits, building plans shall specify the STC rating of windows and doors for all residential land uses. Window and door ratings shall be sufficient to reduce the interior noise level to a CNEL of 42 dB or less, and shall be determined by a qualified acoustical consultant as part of the final engineering design of the project. 66. Prior to building occupancy, mechanical ventilation shall be installed at the proposed condominiums and residential towers since the interior CNEL standard of 42 dB is to be met with all windows and doors closed. 75A-105 MARCH 23, 2009 PAGE 12 OF 17 67. Prior to building occupancy, to the extent possible, all equipment shall be enclosed within a building or separate structure. Where this is not possible, barriers may be necessary to shield the equipment from the existing and proposed residential buildings. Depending on the size and style of the equipment, silencers in the intake and exhaust ducts may also be necessary to reduce noise at the residential buildings to an acceptable level. 68. Upon project completion, truck deliveries to the restaurant and the retail building shall be restricted to the hours of 7:00 a.m. to 10:00 p.m. Delivery trucks shall not be permitted to idle in the parking lots or loading areas and shall be required to have properly maintained, factory approved mufflers. Delivery truck drivers shall be encouraged to minimize acceleration and maintain reduced vehicle speeds while onsite. 69. Demolition and construction plans for the proposed project shall reflect the following note: "During demolition and construction, the contractor shall adhere to all City Noise Ordinance requirements to limit all construction activity, including equipment start-up, to between the hours of 7:00 a.m. and 8:00 p.m. Mondays through Saturdays. No construction shall take place on Sundays or federal holidays. 70. During demolition and construction, the contractor shall site all construction staging and storage areas away from sensitive receptors to the furthest extent possible. 71. During construction activities, the project developer shall ensure that all pile driving equipment shall be enclosed on all sides with an acoustical blanket barrier that provides a minimum sound transmission class (STC) rating of 30. The height of the blanket enclosure shall be at least 20-feet. With the exception of points of access to the enclosure area, there shall be no openings or gaps in the enclosure, and all points of access are to remain closed during pile driving activities. Notwithstanding Mitigation Measure No. 67, pile driving shall not commence prior to 8:00 a.m. on Saturday. 72. Prior to issuance of grading or demolition permits, the project developer shall submit a construction equipment staging plan to the City of Santa Ana for approval. 75A-106 MARCH 23, 2009 PAGE 13 OF 17 73. Prior to the start of construction activity, the project developer shall post the name and telephone number of the construction relations officer on-site. 74. Prior to any site preparation, grading or construction, the project contractor shall provide to resident associations in the Sandpointe neighborhood, the Main Attraction Condominiums and the Pinnacle Apartments a project schedule indicating the type of construction activity and duration, construction staging areas and the name and telephone number of the construction relations officer. 75. Prior to issuance of occupancy permits, the project developer, at the project developer's sole expense, shall conduct a noise monitoring analysis to ensure that residential units achieve an interior noise level of 42 dB CNEL. The analysis shall be conducted by a qualified acoustical consultant and shall be submitted to the City's Planning and Building Agency for review. 76. Prior to issuance of a building permit, the project developer shall coordinate any required relocation of fire hydrants on the property with Santa Ana Fire Department. Final approval from the Fire Department is required regarding location of hydrants on the project site. 77. Prior to issuance of a grading permit, the project developer shall submit building plans to the Santa Ana Police Department in order to ensure compliance with the City of Santa Ana's Building Security Ordinance. The Police Department must approve the building plans with regard to the Building Security Ordinance prior to initiation of grading. 78. Prior to issuance of a building permit, the project developer shall prepare a Mandated Security Plan, which would need final Police department approval. The plan is required to address issues such as onsite uniform security staffing, restriction of hours of operation for the parking garages, implementation of electronic security, mechanical surveillance, and compliance with the basic principles of Crime Prevention Through Environmental Design. 75A-107 MARCH 23, 2009 PAGE 14 OF 17 79. Prior to issuance of a building permit, the project developer shall comply with Senate Bill 50 and pay applicable school impact fees. Currently, the Santa Ana Unified School District's adopted Fee Justification for residential development is $2.14 per square foot and $0.33 per square foot for commercial development. 80. Prior to issuance of a building permit, the project developer shall ensure that the appropriate park Acquisition and Development Fee and parkland dedication or in-lieu payments have been made. 81. Prior to issuance of building permits, the project developer shall submit a Construction Phasing Plan to Santa Ana Fire Department. The plan must be consistent with the Fire Department Fire Code requirements and must show that emergency access to the construction site is adequate. 82. Prior to issuance of building permits, the project developer shall provide evidence to the Santa Ana Fire Department that the proposed fire protection and life saving systems incorporated in the project are adequate. 83. Prior to issuance of building permits, the project developer shall submit the final design of the project, including fire sprinklers system design to the Santa Ana Fire Department for approval. 84. Prior to issuance of building permits, the project developer shall coordinate with the Santa Ana Fire Department and the Santa Ana Police Department regarding possible radio interference and installation of radio repeaters on a tower rooftop. 85. Prior to issuance of building occupancy permits, the project developer in cooperation with the City of Santa Ana, shall provide for the restriping of the outside southbound through lane at the intersection of Main Street and Sunflower to a shared through and right turn lane. 86. Prior to issuance of building occupancy permits, the project developer in cooperation with the City of Santa Ana, shall provide for the restriping the shared through right-turn lane at Hutton Centre Drive and MacArthur Boulevard to provide an exclusive through lane and construct a second northbound right turn lane for the northbound traffic. 75A-108 MARCH 23, 2009 PAGE 15 OF 17 87. Prior to issuance of building occupancy permits, the project developer shall pay for the construction of a third eastbound through lane on MacArthur Boulevard between Hutton Centre Drive/Imperial Promenade and the SR-55 northbound on-ramp. 88. Prior to the issuance of building occupancy permits, the project developer in cooperation with the City of Santa Ana, shall provide for the installation of a traffic signal at Hutton Centre Drive and Hutton Centre Loop. 89. Prior to issuance of building occupancy permits, the project developer shall pay for the construction of a fourth eastbound lane on MacArthur Boulevard between Hutton Centre Drive/Imperial Promenade and the SR-55 southbound on-ramp. 90. Prior to issuance of building occupancy permits, the project developer shall contribute $200,000 for the City of Santa Ana to prepare a neighborhood traffic study to assess any intrusion of project traffic into the Sandpointe Neighborhood. If traffic intrusion is attributable to the project, corrective measures could include forced-turn channelization, semi-diverters, diagonal diverters and cul-de-sacs. 91. Prior to issuance of building occupancy permits, the project developer shall develop a parking plan in cooperation with the City of Santa Ana to ensure that parking needs are met. 92. Prior to issuance of building occupancy permits the project developer shall pay a fair-share contribution for restriping a second eastbound right-turn lane at the intersection of Main Street and Sunflower in order to achieve LOS D for 2025. 93. Prior to issuance of grading permits, the project developer shall coordinate with SCE to determine the exact location of all underground and overhead electrical facilities. All electrical facilities and associated structures to be left on the project site shall be protected from damage. 94. Prior to issuance of grading permits, the project developer shall ensure that grading plans reflect the under grounding of utility lines serving the proposed project. 75A-109 MARCH 23, 2009 PAGE 16 OF 17 95. Prior to issuance of grading permits, the project developer shall coordinate with Southern California Gas to determine the exact location of all underground natural gas facilities. All gas pipelines and associated structures to be left on the project site must be protected from damage. 96. Prior to issuance of grading permits, the shall coordinate with Adelphia Communication exact location of all underground cable developer shall protect all existing associated structures to be left on the damage. project developer is to determine the facilities. The cable lines and project site for 97. Prior to issuance of grading permits, the project developer shall coordinate with SBC Communications (formerly Pacific Bell) to determine the exact location of all underground telephone facilities. The developer shall protect all existing telephone lines and associated structures to be left on the project site from damage. 98. Prior to issuance of grading permits, the project developer shall demonstrate to the City of Santa Ana that construction- related waste generated on-site would be recycled wherever feasible as the first choice of disposal method, leaving the option of landfill disposal as a last alternative. The proposed commercial uses shall incorporate facilities for collection and pick-up of recyclable materials into the design of the project. 99. Prior to issuance of grading permits, the project developer shall coordinate with the Santa Ana Water Division to determine the exact location of all existing underground water supply facilities and take action to prevent damage to these facilities to be left on the project site or interfere with their operation. The project developer shall pay their fair share amount for the necessary facilities to accommodate project-related water supplies. 100. Prior to issuance of building permits, the existing eight-inch sewer line along Hutton Centre Drive north of Sandpointe Avenue, shall be replaced with a new 10-inch sewer line. 101. Prior to issuance of grading permits, the project developer shall coordinate with Waste Management on the type and location of facilities needed to provide solid waste disposal service to the project site. 75A-110 MARCH 23, 2009 PAGE 17 OF 17 102. Prior to issuance of grading permits, the project developer shall perform soil testing to determine is soil to be excavated from the site will require off-site disposal. If the soil is found to be contaminated, it will be properly disposed of in compliance with California environmental laws, regulations and policies. B. Police Department 1. A security plan must be submitted to the Police Department at the plan check stage for approval. The plan must cover all aspects of the projects security including security personnel, surveillance equipment, and hardware. The project will be required to have a minimum of four state licensed uniformed security personnel. One security officer will be required for each building, one for the podium level and one for the parking garage. 2. A minimum 12-inch shatterproof convex mirror shall be installed at each stair landing. All doors leading into stairwells shall be equipped with a minimum 5-inch by 20-inch fire rated window. The last flight of stairs shall be fully enclosed at its base. 3. The City of Santa Ana parking structure design standards shall be followed in its entirety. Duress alarms allowing voice communication with security personnel shall be placed in strategic locations, approved by the Police Department, throughout the parking garage. 4. All project walkways shall be illuminated to a minimum maintained one footcandle of light. 5. All elevators serving the residential component of the project shall be equipped with card readers at the garage levels to restrict unauthorized access into the residential towers. The elevator lobbies shall be designed and constructed of material that allows maximum visibility of the interior of the lobby from the parking decks. Glazing material will be used to its maximum extent. 75A-111 Conditional Use March 23, 2009 Page 1 of 2 Permit No. 2005-15 Findings of Fact A. Will the proposed use provide a service or facility which will contribute to the general well being of the neighborhood or community? The proposed multi-family residential use (Montage) at 100-130 East MacArthur Boulevard will provide a service to the community by providing high-quality residential housing stocks that will enhance the property value of the surrounding neighborhoods. Conditions of approval have been included to ensure the quality and the attractiveness of the overall design which will contribute to the general well being of the community. B. Will the proposed use under the circumstances of the particular case be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity? The proposed multi-family residential use in conjunction with the rest of the MacArthur Place South development will not be detrimental to persons residing and working in the area. The short-term and long-term unavoidable adverse impacts identified in Environmental Impact Report No. 2004-02 as it pertains to aesthetics, air quality, and traffic and transportation, a statement of Overriding Considerations could be issued by decision makers to balance the economic, legal, social, and technological and/or other benefits of this project against the unavoidable environmental impacts. Any other negative or adverse impacts will be mitigated through mitigation measures identified in Environmental Impact Report No. 2004-02. C. Will the proposed use adversely affect the present economic stability or future economic development of properties surrounding the area? The proposed residential project will not adversely affect the economic stability within the MacArthur Place South development area. The multi-family residential component will provide customer base to the retail and restaurant uses, which will reinforce the economic viability of the project and will assist in identifying the entire MacArthur Place South as a viable mixed-use community. 7~,~IB'~~'2 Conditional Use Permit No. 2005-15 March 23, 2009 Page 2 of 2 D. Will the proposed use comply with the regulations and conditions specified in Chapter 41 for such use? The project will be in compliance with all applicable provisions of Chapters 34 and 41 of the Santa Ana Municipal Code as well as the provisions of the SD-76 zoning district except for the parking, tandem parking and setback requirements. Three variances have been approved to deviate from these standards. E. Will the proposed use adversely affect the General Plan or any specific plan of the City? The proposed project will not adversely affect the General Plan as multi-family residential development and ancillary uses are conditionally permitted within the Specific Development No. 76 (SD-76) zoning district. Policy 1.3 of the General Plan Land Use Element encourages high-density residential development within the City's District Centers. Also, Policy 1.4 promotes the maintenance and fostering of a variety of residential land uses in the city. 75A-113 MARCH 23, 2009 PAGE 1 OF 17 Conditions of Approval Conditional Use Permit No. 2005-15 (Integral) is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the Uniform Fire Code, the Uniform Building Code, and all other applicable regulations. In addition, it shall meet the following conditions of approval: The applicant must comply with each and every condition listed below prior to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the development project. Failure to comply with each and every condition may result in the revocation of the conditional use permit approval. A. Planning Division 1. All proposed site improvements must conform with the Site Plan Review approval of DP No. 03-77. 2. Any amendment to this conditional use permit must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the conditional use permit must be amended. 3. Bedrooms are prohibited on the ground (first) floor of the live/work loft units. 4. A Parking Management Plan documenting how the tandem parking stalls will function must be submitted prior to building plan check. 5. All parking for the project shall be made available free of charge. Two parking spaces per dwelling unit shall be provided as a part of the deed for each dwelling unit. 6. Signage to direct customers and guests to the adjacent parking structure shall be provided. A directional sign plan needs to be submitted and approved by the Planning Manager prior to issuance of a certificate of occupancy. 7. The project shall incorporate on-site professional property management for the residential component. 75~F'I~ MARCH 23, 2009 PAGE 2 OF 17 8. A gas fireplace shall be provided within the community room. 9. Conditions, Covenants and Restrictions (CC&Rs) shall be provided for the project. At a minimum, the CC&Rs shall include provisions pertaining to owner occupancy, restrictions on home-based businesses, the prohibition of storage on balconies and a restriction on truck delivery hours to non-peak periods shall be submitted prior to building plan check. 10. Prior to submittal into building plan check, detailed elevations shall be submitted to include exterior finishes, materials, and colors subject to approval of the Planning Manager. 11. Prior to submittal into building plan check, detailed plans of the pedestrian paseo shall be submitted that include enhancements to landscape, hardscape, lighting and street furniture subject to approval of the Planning Manager. 12. A Public Art Plan which proposes a specific work(s) of art for a specific location(s) shall be submitted to the Planning Commission for review and approval. All public art approved by the Planning Commission shall be completely installed prior to the issuance of a certificate of occupancy for the project. 13. A detailed landscape plan must be reviewed and approved prior to issuance of any building permits. In addition to the landscaping palette, the plan shall include details on the materials, finishes and lighting for the Public Plaza at the northwest corner of site as well as the overall hardscape design, lighting concepts and outdoor furniture for the project. At a minimum, the project shall incorporate the amount and size of landscaping as shown on Sheet MLPl.l and the conceptual landscaping plans for the project. The exact specifications for these items are subject to the review and approval of the Planning Commission. 14. After project occupancy, landscaping is to be maintained to include the minimum level of plant materials installed at the time of occupancy as required by the approved plans. 75A-115 MARCH 23, 2009 PAGE 3 OF 17 15. A detailed water feature plan must be reviewed and approved prior to issuance of any building permits. The plan shall include a minimum of three water features as shown on Exhibit 3 (Integral site plan), design details, hardscape design and lighting concepts and an installation plan. The exact specifications for these items are subject to review and approval of the Planning Commission. The water feature(s) shall be maintained in the same condition as installed at the time of occupancy. 16. The following items must be included as exterior amenities for the development: A pool and spa, lounge deck, outdoor gas fireplace, shade structure, fitness room and clubroom within Recreation Area l; and a game table, seating area, barbeque and tot lot within Recreation Area 2. In addition, landscaping consisting of both trees and plant materials shall be provided. The exact specifications for these items must be shown on a detailed plan and are subject to the review and approval of the Planning Commission. The exterior amenities shall be maintained in the same condition as installed at the time of occupancy. 17. The interior courtyard improvements for the project shall be completely installed prior to the release of utilities for any unit within its respective phase of this project. 18. An interior amenity plan of the fitness room and club room must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the various finishes and equipment to be provided in these rooms. At a minimum, the following items must be included as interior amenities within the common areas: Granite counter tops or equivalent, hardwood flooring or equivalent, tiled bathroom and shower walls, and a gas fireplace. The exact specifications for these items are subject to the review and approval of the Planning Manager. The interior amenities shall be maintained in the same condition as installed at the time of occupancy. 19. The following items must be included as interior amenities within each unit: granite counter tops or equivalent, hardwood flooring or equivalent, General Electric Monogram appliances or equivalent, tiled bathroom and shower walls, individual laundry hook-ups, stain grade hard wood cabinets and fireplaces. The exact specifications for these items are subject to the review and approval of the Planning Manager. 75A-116 MARCH 23, 2009 PAGE 4 OF 17 20. Pedestrian walkways shall be provided through all lots to establish pedestrian pathways throughout the development as shown on Exhibit 13. The amenities to be provided along this pathway shall include decorative concrete and paving, accent lighting, and landscape planters as shown on the plans. The materials and design of the walkway is subject to the review and approval of the Planning Manager. The improvements in each phase must be completed prior to occupancy of the first unit in the respective phases. 21. One storage locker shall be provided for each residential unit. The lockers shall be available at no cost to the residents and shall be a minimum of 250 cubic feet in size. 22. Smart wiring, including cable television and high-speed cable for computers, shall be provided for each unit and within the project's common areas. 23. A directional sign plan needs to be submitted and approved by the Planning Manager prior to issuance of a certificate of occupancy. 24. Construction workers for the project shall be prohibited from parking in the adjacent neighborhoods. 25. Prior to issuance of building permits, a Waste Management Plan shall be submitted to the Planning Manager for approval. The plans shall include information on items such as pick-up, delivery, and types of bins required. 26. Prior to occupancy of any units, a rental housing execution plan must be submitted to the Planning Manager for review and approval. At a minimum the plan shall identify the location of employee and visitor parking, the location of the rental office, hour of operation for the rental office, and signage affiliated with the Rental Housing Operational Plan. In addition, the rental plan must clearly note that the parking and project amenities must be provided free of charge to the residence. (Added by the Planning Commission on March 23, 2009) 75A-117 MARCH 23, 2009 PAGE 5 OF 17 Mitigation Measures 27. Prior to issuance of building permits, the project developer shall ensure that the building plans reflect the following information: outdoor lighting fixtures adjacent to exterior doors and within walkways and parking lots shall generate a minimum 1.0 foot candle level of light during normal operation hours. During non-operating hours outdoor lighting fixtures shall generate no less than .25 foot candle level of light. All lighting shall be directed towards the interior of the project site. 28. Prior to issuance of building permits, building plans for the proposed project shall reflect the use of non-reflective building materials to minimize light and glare impacts. 29. Prior to the issuance of building permits, a Final Landscape Plan for each building component of the project shall be approved by the City of Santa Ana Planning and Building Agency. The Final Landscape Plan shall be based on the conceptual landscape plan included in the EIR. 30. Prior to issuance of Certificate of Occupancy Permits, the required landscaping for each building component of the project shall be installed to the satisfaction of the City of Santa Ana Planning Department. 31. Prior to the issuance of a building permit, the project developer shall provide the Planning Manager plans that incorporate lighting and any other conditions in the manner required by the FAA during the construction phase (e.g. for the cranes) and after completion. 32. Pursuant to state law, prior to issuance of a certificate of a use and occupancy permit, the project proponent shall provide evidence to the City of Santa Ana that a Notice of Airport in the vicinity has been recorded on the deed for each residential unit and shall remain so recorded so as long as the airport is in operation. 75A-118 MARCH 23, 2009 PAGE 6 OF 17 33. As required by the AELUP, prior to issuance of the certificate of use and occupancy, the City shall ensure that the sales office for the residential unit posts a conspicuous sign informing potential buyers to the presence of the airport. The notice shall be in the same language as the need notice. 34. Prior to the issuance of a building permit, the project developer shall provide evidence to the Planning Manager that an FAA "NO Hazard" determination has been secured for the operation of the construction cranes. The project developer shall demonstrate compliance with any conditions imposed by the FAA. 35. During construction, the contractor shall be required to comply with SCAQMD Fugitive Dust Rule 403 to suppress dust generated by construction operations. To ensure compliance with SCAQMD Fugitive Dust Rule 403, grading plans and demolition plans for the proposed project shall reflect the following notes: • All materials excavated or graded shall be sufficiently watered to prevent excessive amounts of dust. Watering with complete coverage shall occur at least twice daily, once in the late morning and once after work is done for the day. • All clearing and earthwork activities shall cease during periods of high winds (winds greater than 25 mph averaged over one hour) or during Stage 1 or Stage 2 smog episodes. • Internal roadways and project site entry and exit points shall be cleaned at the end of each day by the project developer. Dust and debris from construction activities that migrates or is carried onto MacArthur Boulevard or Main Street adjacent to the project site shall also be cleaned each day. • All material transported off-site shall either be sufficiently watered or securely covered to prevent excessive amounts of dust. Haul trucks leaving the site shall have a minimum freeboard distance of 12-inches. • Construction equipment leaving the project site shall be wheel washed. 75A-119 MARCH 23, 2009 PAGE 7 OF 17 • The amount of area disturbed by clearing and earthwork activities shall be minimized at all times. • Equipment engines shall be maintained in good condition and in proper tune according manufacturer's specifications. • To the extent feasible, construction equipment shall use alternative clean fuels such as compressed natural gas equipment with oxidation catalysts. If alternative clean fuels are not feasible, gasoline powered construction equipment shall be used. • Construction equipment operating on diesel fuel shall use particulate filters or low sulfur diesel. • To the extent feasible construction operations shall use electricity from power poles in-lieu of temporary diesel or gasoline-powered generators. 36. Prior to commencement of construction activities, the project developer shall identify to the City a construction relations officer to act as a community liaison concerning on-site activity, including resolution of issues related to dust generation from grading/paving activities. A publicly visible sign shall be posted with the name of construction relations officer and a telephone number. 37. During finish work, the construction contractor shall ensure the minimization of ROG emissions. Building plans for the project shall specify and require the use of pre-coated building materials, use of high pressure-low volume (HPLV) paint applicators with 50 percent efficiency, and use of lower volatility paint not to exceed 100 grams of ROG per liter. 38. During construction and grading activities, the developer's construction contractor shall comply with the measures set forth in the Storm Water Pollution Prevention Plan (SWPPP) to ensure that airborne dust is kept to a minimum. 39. Prior to issuance of building permits and to the extent feasible, building plans for the proposed project shall reflect the use of the following measures. 75A-120 MARCH 23, 2009 PAGE 8 OF 17 • Use low-polluting high energy-efficient appliances • Install solar panels on roofs to supply electricity for heating and cooling • Use double-paned windows to reduce thermal loss • Install automatic lighting on/off controls and energy- efficient lighting • Use light colored roofing materials in new construction to deflect heat away from buildings. 40. During grading operations special handling of on-site soils shall be required, due to the high moisture content of the soils, which is well above optimum moisture conditions. The City of Santa Ana shall monitor the grading contractor to ensure stabilization of the soils during grading prior to placing and compacting fill soils over wet sub-grade soils, as recommended in the geotechnical investigation prepared by Geotechnical Professionals, Inc. 41. Prior to issuance of building permits, the project developer shall ensure that pile foundations are incorporated into the project design to mitigate the potential settlement hazards beneath the proposed buildings. Pile foundations shall be installed according to the recommendations provided in the project geotechnical report. 42. Prior to issuance of building permits, the project developer shall ensure that the subterranean portion of the structures is designed and installed to resist hydrostatic pressure and be a water-proof barrier between the existing soils and subterranean portions of the buildings. This design and installation shall be consistent with the recommendations provided in the project geotechnical report. 43. Prior to initiation of project grading, the project developer shall ensure that all existing utilities will be relocated, abandoned and removed, rerouted, or protected in coordination with the project developer and affected utility companies. 44. Prior to issuance of a grading permit for project construction, the project developer shall ensure that a Final Geotechnical Report on the project site is prepared. All recommendations from this Final Geotechnical Report shall be incorporated into the final grading plan for the project. 75A-121 MARCH 23, 2009 PAGE 9 OF 17 45. Prior to issuance of building permits, the project developer shall ensure that all structures on the site are designed in accordance with the seismic design provisions set forth in the Final Geotechnical Report and the Uniform Building Code in order to promote safety in the event of a seismic event. 46. Prior to issuance of grading permits, the project developer shall determine and demonstrate to the City of Santa Ana that the foundation piles for the project would not intrude into the Orange County groundwater basin. In the event the foundations intrude into the groundwater basin, the project developer shall obtain approval and/or permits from the Orange County Water District and the Regional Water Quality Control Board. Any measures required by these agencies will be incorporated into the final design and construction specifications for the project. 47. Prior to issuance of grading permits the project developer shall ensure that provisions set forth in the Final Geotechnical Report regarding dust control measures during site preparation, grading and construction are incorporated into the final construction specifications for the project. 48. Prior to issuance of Certificate of Occupancy permits, the project developer shall submit to the City of Santa Ana CC&Rs for each residential project. The CC&Rs shall outline the environmental awareness, conditions and Best Management Practices regarding the handling and storage of hazardous materials as identified in the Water Quality Management Plan for MacArthur Place South. 49. Prior to issuance of grading permits, the project developer shall provide proof to the City of Santa Ana of an NPDES permit from the RWQCB for on-site dewatering activities. 50. The residential management companies shall ensure that post- construction Best Management Practices (BMP's) are strictly adhered to by all building occupants and tenants. 51. Prior to issuance of a demolition permit, the project developer shall prepare an asbestos survey to determine the presence of asbestos containing building materials. The survey shall be submitted to the City's Environmental Coordinator for review. If asbestos is identified, proper precautions shall be taken during demolition in compliance with California environmental laws, regulations and policies. 75A-122 MARCH 23, 2009 PAGE 10 OF 17 52. Prior to issuance of a demolition permit, the project developer shall prepare a lead paint survey to determine the presence of lead based paint. The survey shall be submitted to the City's Environmental Coordinator for review. If lead based paint or mercury is identified, proper precautions shall be taken during demolition in compliance with California environmental laws, regulations and policies. 53. Prior to occupancy of residential units, the project developer shall ensure that CC&Rs for the community homeowners associations are recorded specifying maintenance responsibilities for all BMP's identified in the Water Quality Management Plan. 54. Prior to issuance of a grading permit for the project, the project developer shall prepare and submit a Notice of Intent (NOI) to the State Water Resources Control Board (SWRCB) The developer will also submit the NOI and the project Water Discharge identification Number (WDIN) provided by the SWRCB to the City of Santa Ana City Engineer. 55. During all site preparation, grading and construction, the project developer shall ensure that the project contractor complies with all applicable requirements of the NPDES permit, the Drainage Area Management Plan (DAMP), and the City's Local Implementation Plan (LIP). BMP's from the DAMP and the LIP will be implemented by the project contractors, as appropriate during site preparation, grading and construction. 56. Prior to issuance of a grading permit, the project developer shall prepare a Final Storm Water Pollution Prevention Plan (SWPPP). This plan shall be submitted and approved by the City Engineer prior to initiation of any grading activity. The project shall maintain the SWPPP on the construction site throughout the construction period. 57. During all site preparation, grading and construction, the project developer shall ensure that its contractor implements the provisions of the SWPPP. 58. Prior to the issuance of grading permits, the project developer shall submit a Final Water Quality Management Plan (WQMP) based on the Final Grading Plan, to be approved by the City's Director of Public Works. The WQMP shall be consistent with the DAMP and shall contain provisions and BMP's for construction and operation conditions. 75A-123 MARCH 23, 2009 PAGE 11 OF 17 59. Prior to the issuance of building permits, the project developer shall pay the City's drainage impact fee. 60. Prior to the issuance of grading permits, the project developer shall verify that structural BMP's have been permanently incorporated into project plans. Such BMP s shall ensure that pollutants from project-related storm water runoff are mitigated consistently with applicable state and local standards. 61. Prior to issuance of grading permits, the project developer shall submit a final drainage plan to the City identifying the exact size and location of drainage facilities. 62. Prior to issuance of grading permits, the project developer shall provide proof of an NPDES permit from RWQCB to the City for onsite dewatering activities. 63. Prior to issuance of building permits for tenant improvements for restaurant uses, the project developer shall ensure that the proposed restaurants are fitted with grease interceptors to the size and capacity as designated by the City of Santa Ana Building Division. 64. Prior to issuance of building permits, building plans shall reflect the construction of noise barriers to ensure an exterior noise level of 65 CNEL or less around patios and balconies that are considered open space by the City of Santa Ana. The barriers shall be constructed of materials that provide a surface density of at least four pounds per square foot and shall be continuous (without gaps or gates). The height of the barriers shall be sufficient to reduce the exterior noise level to a CNEL of 65 dB or less, and shall be determined by a qualified acoustical consultant as part of the final engineering design of the project. 65. Prior to issuance of building permits, building plans shall specify the STC rating of windows and doors for all residential land uses. Window and door ratings shall be sufficient to reduce the interior noise level to a CNEL of 45 dB or less, and shall be determined by a qualified acoustical consultant as part of the final engineering design of the project. 75A-124 MARCH 23, 2009 PAGE 12 OF 17 66. Prior to building occupancy, mechanical ventilation shall be installed at the proposed condominiums and residential towers since the interior CNEL standard of 45 dB is to be met with all windows and doors closed. 67. Prior to building occupancy, to the extent possible, all equipment shall be enclosed within a building or separate structure. Where this is not possible, barriers may be necessary to shield the equipment from the existing and proposed residential buildings. Depending on the size and style of the equipment, silencers in the intake and exhaust ducts may also be necessary to reduce noise at the residential buildings to an acceptable level. 68. Upon project completion, truck deliveries to the restaurant and the retail building shall be restricted to the hours of 7:00 a.m. to 10:00 p.m. Delivery trucks shall not be permitted to idle in the parking lots or loading areas and shall be required to have properly maintained, factory approved mufflers. Delivery truck drivers shall be encouraged to minimize acceleration and maintain reduced vehicle speeds while onsite. 69. Demolition and construction plans for the proposed project shall reflect the following note: "During demolition and construction, the contractor shall adhere to all City Noise Ordinance requirements to limit all construction activity, including equipment start-up, to between the hours of 7:00 a.m. and 8:00 p.m. Mondays through Saturdays. No construction shall take place on Sundays or federal holidays. 70. During demolition and construction, the contractor shall site all construction staging and storage areas away from sensitive receptors to the furthest extent possible. 71. During construction activities, the project developer shall ensure that all pile driving equipment shall be enclosed on all sides with an acoustical blanket barrier that provides a minimum sound transmission class (STC) rating of 30. The height of the blanket enclosure shall be at least 20 feet. With the exception of points of access to the enclosure area, there shall be no openings or gaps in the enclosure, and all points of access are to remain closed during pile driving activities. 75A-125 MARCH 23, 2009 PAGE 13 OF 17 72. Prior to issuance of grading or demolition permits, the project developer shall submit a construction equipment staging plan to the City of Santa Ana for approval. 73. Prior to the start of construction activity, the project developer shall post the name and telephone number of the construction relations officer on-site. 74. Prior to any site preparation, grading or construction, the project contractor shall provide to resident associations in the Sandpointe neighborhood, the Main Attraction Condominiums and the Pinnacle Apartments a project schedule indicating the type of construction activity and duration, construction staging areas and the name and telephone number of the construction relations officer. 75. Prior to issuance of occupancy permits, the project developer, at the project developer's sole expense, shall conduct a noise monitoring analysis to ensure that residential units achieve an interior noise level of 45 dB CNEL. The analysis shall be conducted by a qualified acoustical consultant and shall be submitted to the City's Planning and Building Agency for review. 76. Prior to issuance of a building permit, the project developer shall coordinate any required relocation of fire hydrants on the property with Santa Ana Fire Department. Final approval from the Fire Department is required regarding location of hydrants on the project site. 77. Prior to issuance of a grading permit, the project developer shall submit building plans to the Santa Ana Police Department in order to ensure compliance with the City of Santa Ana's Building Security Ordinance. The Police Department must approve the building plans with regard to the Building Security Ordinance prior to initiation of grading. 78. Prior to issuance of a building permit, the project developer shall prepare a Mandated Security Plan, which would need final Police department approval. The plan is required to address issues such as onsite uniform security staffing, restriction of hours of operation for the parking garages, implementation of electronic security, mechanical surveillance, and compliance with the basic principles of Crime Prevention Through Environmental Design. 75A-126 MARCH 23, 2009 PAGE 14 OF 17 79. Prior to issuance of a building permit, the project developer shall comply with Senate Bill 50 and pay applicable school impact fees. Currently, the Santa Ana Unified School District's adopted Fee Justification for residential development is $2.14 per square foot and $0.33 per square foot for commercial development. 80. Prior to issuance of a building permit, the project developer shall ensure that the appropriate park Acquisition and Development Fee and parkland dedication or in-lieu payments have been made. 81. Prior to issuance of building permits, the project developer shall submit a Construction Phasing Plan to Santa Ana Fire Department. The plan must be consistent with the Fire Department Fire Code requirements and must show that emergency access to the construction site is adequate. 82. Prior to issuance of building permits, the project developer shall provide evidence to the Santa Ana Fire Department that the proposed fire protection and life saving systems incorporated in the project are adequate. 83. Prior to issuance of building permits, the project developer shall submit the final design of the project, including fire sprinklers system design to the Santa Ana Fire Department for approval. 84. Prior to issuance of building permits, the project developer shall coordinate with the Santa Ana Fire Department and the Santa Ana Police Department regarding possible radio interference and installation of radio repeaters on a tower rooftop. 85. Prior to issuance of building occupancy permits, the project developer in cooperation with the City of Santa Ana, shall provide for the restriping of the outside southbound through lane at the intersection of Main Street and Sunflower to a shared through and right turn lane. 86. Prior to issuance of building occupancy permits, the project developer in cooperation with the City of Santa Ana, shall provide for the restriping the shared through right-turn lane at Hutton Centre Drive and MacArthur Boulevard to provide an exclusive through lane and construct a second northbound right turn lane for the northbound traffic. 75A-127 MARCH 23, 2009 PAGE 15 OF 17 87. Prior to issuance of building occupancy permits, the project developer shall pay for the construction of a third eastbound through lane on MacArthur Boulevard between Hutton Centre Drive/Imperial Promenade and the SR-55 northbound on-ramp. 88. Prior to the issuance of building occupancy permits, the project developer in cooperation with the City of Santa Ana, shall provide for the installation of a traffic signal at Hutton Centre Drive and Hutton Centre Loop. 89. Prior to issuance of building occupancy permits, the project developer shall pay for the construction of a fourth eastbound lane on MacArthur Boulevard between Hutton Centre Drive/Imperial Promenade and the SR-55 southbound on-ramp. 90. Prior to issuance of building occupancy permits, the project developer shall contribute $200,000 for the City of anta Ana to prepare a neighborhood traffic study to assess any intrusion of project traffic into the Sandpointe Neighborhood. If traffic intrusion is attributable to the project, corrective measures could include forced-turn channelization, semi-diverters, diagonal diverters and cul-de-sacs. 91. Prior to issuance of building occupancy permits, the project developer shall develop a parking plan in cooperation with the City of Santa Ana to ensure that parking needs are met. 92. Prior to issuance of building occupancy permits the project developer shall pay a fair-share contribution for restriping a second eastbound right-turn lane at the intersection of Main Street and Sunflower in order to achieve LOS D for 2025. 93. Prior to issuance of grading permits, the project developer shall coordinate with SCE to determine the exact location of all underground and overhead electrical facilities. All electrical facilities and associated structures to be left on the project site shall be protected from damage. 94. Prior to issuance of grading permits, the project developer shall ensure that grading plans reflect the under grounding of utility lines serving the proposed project. 75A-128 MARCH 23, 2009 PAGE 16 OF 17 95. Prior to issuance of grading permits, the project developer shall coordinate with Southern California Gas to determine the exact location of all underground natural gas facilities. All gas pipelines and associated structures to be left on the project site must be protected from damage. 96. Prior to issuance of grading permits, the shall coordinate with Adelphia Communication exact location of all underground cable developer shall protect all existing associated structures to be left on the damage. project developer is to determine the facilities. The cable lines and project site for 97. Prior to issuance of grading permits, the project developer shall coordinate with SBC Communications (formerly Pacific Bell) to determine the exact location of all underground telephone facilities. The developer shall protect all existing telephone lines and associated structures to be left on the project site from damage. 98. Prior to issuance of grading permits, the project developer shall demonstrate to the City of Santa Ana that construction- related waste generated on-site would be recycled wherever feasible as the first choice of disposal method, leaving the option of landfill disposal as a last alternative. The proposed commercial uses shall incorporate facilities for collection and pick-up of recyclable materials into the design of the project. 99. Prior to issuance of grading permits, the project developer shall coordinate with the Santa Ana Water Division to determine the exact location of all existing underground water supply facilities and take action to prevent damage to these facilities to be left on the project site or interfere with their operation. The project developer shall pay their fair share amount for the necessary facilities to accommodate project-related water supplies. 100. Prior to issuance of building permits, the existing eight-inch sewer line along Hutton Centre Drive, north of Sandpointe Avenue shall be replaced with a new 10-inch sewer line. 101. Prior to issuance of grading permits, the project developer shall coordinate with Waste Management on the type and location of facilities needed to provide solid waste disposal service to the project site. 75A-129 MARCH 23, 2009 PAGE 17 OF 17 102. Prior to issuance of grading permits, the project developer shall perform soil testing to determine is soil to be excavated from the site will require off-site disposal. If the soil is found to be contaminated, it will be properly disposed of in compliance with California environmental laws, regulations and policies. B. Police Department 1. A security plan must be submitted to the Police Department at the plan check stage for approval. The plan must cover all aspects of the projects security including security personnel, surveillance equipment, and hardware. The project will be required to have a minimum of four state licensed uniformed security personnel. One security officer will be required for each building, one for the podium level and one for the parking garage. 2. A minimum 12-inch shatterproof convex mirror shall be installed at each stair landing. All doors leading into stairwells shall be equipped with a minimum 5-inch by 20-inch fire rated window. The last flight of stairs shall be fully enclosed at its base. 3. The City of Santa Ana parking structure design standards shall be followed in its entirety. Duress alarms allowing voice communication with security personnel shall be placed in strategic locations, approved by the Police Department, throughout the parking garage. 4. All project walkways shall be illuminated to a minimum maintained one footcandle of light. 5. All elevators serving the residential component of the project shall be equipped with card readers at the garage levels to restrict unauthorized access into the residential towers. The elevator lobbies shall be designed and constructed of material that allows maximum visibility of the interior of the lobby from the parking decks. Glazing material will be used to its maximum extent. 75A-130 ORDINANCE NO. NS - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AN AMENDMENT TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND NDC SKYLINE ASSOCIATES, LLC THE CITY COUNCIL OF THE CITY OF SANTA ANA ORDAINS AS FOLLOWS: SECTION 1: The City Council hereby finds, determines and declares as follows: A. The City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into development agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and owner in the development process. B. The City enters into this Amendment to Development Agreement pursuant to the provisions of the Government Code and applicable City policies. C. The Planning Commission has, following a duly noticed public hearing, on March 23, 2009, recommended approval of this Amendment to Development Agreement. D. Entering into this Amendment to Development Agreement would provide the City with extraordinary and significant benefits that are of regional significance, relate to existing deficiencies in public facilities, require the owner of MacArthur Place South to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process. E. The City Council has held a noticed public hearing on this Ordinance, and has considered all testimony presented thereto. F. The previously adopted and certified Final Environmental Impact Report (EIR) for the Nexus Project, No. ER 2004-02, adequately describes and analyzes the impacts of this proposed ordinance, and no additional review under the California Environmental Quality Act is required. The new activity (the option of rental of residential units) does not affect the scope of the original project, nor create new impacts. The City has performed a traffic analysis of the difference between for-rent and for-sale units in the project, and this analysis has been included in the Addendum for said Final EIR for consideration of Item 75.B. for tonight's public meeting, and is incorporated herein by this Ordinance No. NS- raye L 75A-131 reference. G. The proposed project will not adversely affect the General Plan, as is expressly set forth in the Request for Council Action dated May 4, 2009, together with all supporting documents, including but not limited to proposed resolutions, which are incorporated herein by this reference. SECTION 2: The Amendment to Development Agreement, a true and correct copy of which is attached hereto as Exhibit 1, is hereby approved, and the City Manager and Clerk of the Council are authorized to execute it on behalf of the City with such nonsubstantive changes as may be authorized by the City Manager and City Attorney. The Clerk of the City is hereby authorized and directed to cause this Development Agreement to be recorded with the County Recorder's Office. In case of any dispute between the terms or effect of Tentative Tract Map No. 2008-04 and the terms or effect of the Development Agreement, the Development Agreement shall prevail. SECTION 3: This ordinance shall not be effective unless and until Resolution No. 2009-XXX is adopted and become effective. If said resolution is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise do not go into effect for any reason, then this ordinance shall be null and void and have no further force and effect. SECTION 4: If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this day of , 2009. Miguel A. Pulido Mayor Ordinance No. NS- Page 2 75A-132 APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Benjamin Kaufman Chief Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS-XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on ,and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Ordinance No. NS- Page 3 75A-133 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza M-30 P.O. Box 1988 Santa Ana, California 92702 FREE RECORDING GOVERNMENT CODE & 6103 SECOND AMENDMENT TO DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and NDC SKYLINE ASSOCIATES, LLC Dated: , 2009 Ordinance No. NS- EXHIBIT 1 75A-134 SECOND AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA, and NDC SKYLINE ASSOCIATES, LLC, This SECOND AMENDMENT TO DEVELOPMENT AGREEMENT ("Second Amendment") is entered into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California ("City"), and NDC SKYLINE ASSOCIATES, LLC, a Delaware limited liability company ("Skyline"). 1. Reference to Facts. This Second Amendment is entered into with reference to the following facts: 1.1 Capitalized terms not defined herein shall have the meaning set forth in the Development Agreement. 1.2 The Grand Plan 1, LLC, a California limited liability company ("GP1") and The Grand Plan 2, LLC, a California limited liability company ("GP2"), on the one hand, and City, on the other hand, entered into that certain Development Agreement dated August 4, 2005 and recorded in the Orange County Official Records on July 21, 2005 as Instrument No. 2005000565108 (as amended, the "Development Agreement") pursuant to which, among other things, Owner (as defined in the Development Agreement) was granted the vested right to develop a mixed use Project with residential condominiums and office/commercial/retail uses, as more particularly described therein. GP1 and GP2 subsequently assigned its rights and obligations under the Development Agreement with respect to Lake Towers to Skyline, and GP1 assigned its rights and obligations under the Development Agreement with respect to the Integral Project to Integral Communities I, Inc., a Delaware corporation. 1.3 The original Development Agreement and Entitlements specified that the Lake Towers Element of the Project as consisting of two (2) towers with "for-sale" condominium units. 1.4 Lake Towers is nearing completion and, concurrently herewith, the City has approved certain modifications to existing Entitlements (including, Conditional Use Permit No. 2005-10) to permit Skyline to rent (and offer for rental) some or all of the Residential Units comprising Lake Towers (irrespective of whether any Residential Units are sold to third party purchasers). 1.5 In connection with the foregoing, Skyline and City now desire to amend the Development Agreement to provide Skyline with the ability to rent (and offer for rental) some or all of the Residential Units comprising Lake Towers in accordance with applicable Entitlements. 2. Right to Rent. Skyline and the City hereby acknowledge and agree that Skyline 1 have the right to rent (and offer for rental) some or all of the Residential Units comprising Lake Towers, in accordance with applicable Entitlements. The foregoing shall in no way be deemed to impose an obligation on Skyline to rent (or offer for rental) any or all of the Residential Units, or 4/28/2009 9:15:00 AM 2 2nd amendment to development agreement3 lake tower only.doc 75A-135 preclude Skyline from selling and renting (and offering for sale and rental) the Residential Units concurrently. 3. Modification of Certain Provisions. The Development Agreement is hereby amended and supplemented in the following particulars: 3.1 Section 1.1(1). The phrase "for-sale residential condominiums" appearing in Section 1.1(1) of the Development Agreement is hereby amended and restated to read as "for-sale condominium units/for-rent residential units." 3.2 Section 2.43(1). The phrase "three hundred fifty (350) for sale residential condominium units" appearing in Section 2.43(1) of the Development Agreement is hereby amended and restated to read as "three hundred forty-nine (349) for-sale condominium units/for- rent residential units." 3.3 Section 2.50. The phrase "each of the for sale residential units" appearing in Section 2.50 of the Development Agreement is hereby amended and restated to read as "each of the for-sale (and with respect to Lake Towers, if applicable, the for-rent) residential units." 3.5 Section 4.1. Clause (ii) appearing in Section 4.1 of the Development Agreement is hereby amended and restated to read in its entirety as follows: "(ii) the granting of Certificates of Occupancy (or similar permission to occupy) for the final Element of the Project and, except with respect to Lake Towers, sale of all Residential Units." 3.6 Section 4.2.1. Anew Section 4.2.1 is added to the Development Agreement to read in its entirety: 4.2.1. Residential Rental Manager. Should Skyline exercise its option to rent the Lake Towers prior to occupancy of the first rental unit, Skyline shall first obtain the written consent of the City, acting in its reasonable discretion, of its proposed residential rental manager. In exercising its reasonable discretion, the City, acting through the City's Executive Director of Planning and Building Agency or designee, shall limit its review to the experience and capabilities of the proposed residential rental manager and shall approve any such proposed residential rental manager if it has demonstrated experience or capabilities with respect to the managing rental properties on the scale of the Lake Towers. 3.7 Section 4.3. Clause (f) appearing in Section 4.3 of the Development Agreement is hereby amended and restated to read in its entirety as follows: "Buyer's of Residential Units (and with respect to the Lake Towers Element, if applicable, buyer's or tenant's of Residential Units). 4. Full Force and Effect; Counterparts. Except as amended herein the Development Agreement shall remain in full force and effect in accordance with its terms. This Second Amendment may be executed in any number of counterparts, all of which shall constitute one and the same instrument. 4/28/2009 9:15:00 AM 2nd amendment to development agreement3 lake tower only.doc 75A-136 IN WITNESS WHEREOF, this Second Amendment has been executed by the City of Santa Ana and Skyline. Dated this day of , 2009. By Approved as to Form: By JOSEPH W.FLETCHER City Attorney "CITY" THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California DAVID N. REAM City Manager "SKYLINE" NDC SKYLINE ASSOCIATES, LLC, a Delaware limited liability company By Name Its 4/28/2009 9:15:00 AM 2nd amendment to development agreement3 lake tower only.doc 75A-137 STATE OF CALIFORNIA COUNTY OF ss. On before me, ,Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC STATE OF CALIFORNIA ) ss. COUNTY OF ) On before me, ,Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC 4/28/2009 9:15:00 AM 2nd amendment to development agreement3 lake tower only.doc 75A-138 STATE OF CALIFORNIA COUNTY OF ss. On before me, ,Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC 4/28/2009 9:15:00 AM 2nd amendment to development agreement3 lake tower only.doc 75A-139 KO- 4/27/09 RESOLUTION NO. 2009- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE AMENDMENT TO CONDITIONAL USE PERMIT NO. 2005-10 AS CONDITIONED FOR THE PROPERTIES LOCATED AT 9 AND 15 MACARTHUR PLACE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The applicant is requesting approval of an amendment to Conditional Use permit No. 2005-10 to allow the rental of some or all units at the recently completed Skyline Towers at 9 and 15 MacArthur Place. B. On March 23, 3009, the Planning Commission held a duly noticed public hearing and unanimously voted to recommend that the City Council: 1. Adopt an ordinance approving the second amendment to Development Agreement No. 2005-02 with respect to Nexus/NDC Skyline Towers. 2. Adopt a resolution approving the amendment to Conditional Use Permit No. 2005-10 as conditioned. C. On May 4, 2009, the City Council of the City of Santa Ana held a duly noticed public hearing and at that time considered all testimony, written and oral. D. The application for the amendment to Conditional Use Permit No. 2005-10 has been filed with the City of Santa Ana seeking to allow the rental of some or all units at the recently completed Skyline Towers at 9 and 15 MacArthur Place. E. Santa Ana Municipal Code Section 41-638 and 41-649 authorizes the City Council to grant a conditional use permit upon making certain findings. 1. Will the proposed use provide a service or facility which will contribute to the general well being of the neighborhood or community? Resolution No. 2009- Page 1 of 20 75A-140 The Skyline Towers multi-family residential project at 9 and 15 MacArthur Place will provide a service to the community by providing high-quality residential housing stocks that will enhance the property values of the surrounding neighborhoods. Conditions of approval have been included to ensure the quality and the attractiveness of the overall design which will contribute to the general well being of the community. 2. Will the proposed use under the circumstances of the particular case be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity? The proposed multi-family residential use, in conjunction with the rest of the MacArthur Place South development, will not be detrimental to persons residing and working in the area. The short-term and long-term unavoidable adverse impacts identified in Environmental Impact Report No. 2004-02 pertaining to aesthetics, air quality, and traffic and transportation can be addressed through the adoption of Statement of Overriding Considerations by the City Council to balance the economic, legal, social, and technological and/or other benefits of this project against the unavoidable environmental impacts. Any other negative or adverse impacts will be mitigated through mitigation measures identified in Environmental Impact Report No. 2004-02. 3 Will the proposed use adversely affect the present economic stability or future economic development of properties surrounding the area? The proposed multi-family residential project will not adversely affect the economic stability of the area. The multi-family residential component will provide a customer base to the retail and restaurant uses, which will reinforce the economic viability of the project and will assist in identifying MacArthur Place South as a viable mixed-use community. 4 Will the proposed use comply with the regulations and conditions specified in Chapter 41 for such use? The project will be in compliance with all applicable provisions of Chapters 34 and 41 of the Santa Ana Municipal Code as well as the provisions of the SD-76 zoning district except for the parking, tandem parking and setback requirements. Three variances have been approved to deviate from these standards. Resolution No. 2009- Page 2 of 20 75A-141 5. Will the proposed use adversely affect the General Plan or any specific plan of the City? The proposed project will not adversely affect the General Plan as multi-family residential development and ancillary uses are conditionally permitted within the Specific Development No. 76 (SD-76) zoning district. Further, General Plan Land Use Element Policy 1.3 supports high- density residential development within the City's District Centers as a part of a master-planned mixed-use development. Also, Policy 1.4 promotes the maintenance and fostering of a variety of residential land uses in the city. Section 2. On June 20, 2005 the City Council approved and adopted Final Environmental Impact Report No. 2004-02, the Mitigation Monitoring Program, and the Statement of Overriding Considerations. In analyzing the amendments to this project, it was determined that no new impacts are expected since the number of overall units, the number of persons in the households and the income levels for the project will remain the same. Therefore, in accordance with the California Environmental Quality Act, the proposed project has been determined to be adequately evaluated in previously prepared Environmental Impact Report No. 2004-02. This resolution incorporates by reference, as though fully set forth herein, Resolution No. 2005-063 and said Final Environmental Impact Report, Mitigation Monitoring Program, and Statement of Overriding Considerations, and all of their respective facts, findings and conclusions in support of this resolution and the findings made herein. This resolution also incorporates by reference, as though fully set forth herein, the Addendum to the Final Environmental Impact Report No. 2004-02 and the mitigation monitoring program which came before the City Council on May 4, 2009 as part of the public hearing for ZOA No. 2009-04, Amendment to DA No. 2005-02, Amendment to CUP No. 2009-08 and Amendment to Variance No. 2009-02 as well as the accompanying staff report and exhibits attached thereto; and the public testimony written and oral for that hearing item. Section 3. The City Council of the City of Santa Ana after conducting the public hearing hereby approves the amendment to Conditional Use Permit No. 2005-10 as conditioned in Exhibit "A" attached hereto and incorporated herein for the property located 9 and 15 MacArthur Place. This decision is based upon the evidence submitted at the abovesaid hearing, which includes but is not limited to: the Request for Council Action dated May 4, 2009 and exhibits attached thereto; and the public testimony written and oral, all of which are incorporated herein by this reference. Section 4. This Resolution shall not be effective unless and until Ordinance No. NS- becomes effective. If said ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise do not go into effect for any reason, then this resolution shall be null and void and have no further force and effect. Resolution No. 2009- Page 3 of 20 75A-142 Section 5. This decision rendered by the City Council of the City of Santa Ana is final and is subject to judicial review pursuant to California Code of Civil Procedure section 1094.6. The Clerk of the Council shall give direct notice to the applicant of the Council's decision and these findings. ADOPTED this day of May, 2009 Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Kylee O. Otto Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAI N NOT PRESENT Councilmembers Councilmembers Resolution No. 2009- Page 4 of 20 75A-143 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2009-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. 2009- Page 5 of 20 75A-144 Conditions for Approval for Conditional Use Permit No. 2005-10 Conditional Use Permit No. 2005-10 (Skyline Towers) is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. In addition, it shall meet the following conditions of approval: The applicant must comply with each and every condition listed below rip or to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the development project. Failure to comply with each and every condition may result in the revocation of the conditional use permit approval. A. Planning Division 1. All proposed site improvements must conform with the Site Plan Review approval of DP No. 03-79. 2. Any amendment to this conditional use permit must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the conditional use permit must be amended. 3. A Parking Management Plan documenting how the tandem parking stalls will function must be submitted prior to building plan check. 4. The project shall incorporate on-site professional property management for the residential component. 5. Balconies for the project shall maintain a minimum dimension of not less than six feet in any direction. 6. Covenants, Conditions and Restrictions (CC&Rs) shall be provided for the project. At a minimum, the CC&Rs shall include provisions pertaining to owner occupancy, restrictions on home-based businesses, the prohibition of storage on balconies, and a restriction on truck delivery hours to non- peak periods shall be submitted prior to building plan check. 7. Prior to submittal into building plan check, detailed elevations shall be submitted to include exterior finishes, materials, and colors subject to approval of the Planning Manager. Exhibit A Resolution No. 2009- Page 6 of 20 75A-145 8. All parking for the project shall be made available free of charge. Two parking spaces per dwelling unit shall be provided as a part of the deed for each dwelling unit. 9. A Public Art Plan which proposes a specific work(s) of art for a specific location(s) shall be submitted to the Planning Commission for review and approval. All public art approved by the Planning Commission shall be completely installed prior to the issuance of a certificate of occupancy for the project. 10. A detailed landscape plan must be reviewed and approved prior to issuance of any building permits. In addition to the landscaping palette, the plan shall include details on the hardscape design, lighting concepts and outdoor furniture. At a minimum, the project shall incorporate the amount and size of landscaping as shown on Sheet MLP1.1. The exact specifications for these items are subject to the review and approval of the Planning Commission. 11. After project occupancy, landscaping is to be maintained to include the minimum level of plant materials installed at the time of occupancy as required by the approved plans. 12. A detailed amenity deck plan must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the hardscape design, lighting concepts and outdoor furniture for the amenity deck as well as an installation plan. The exact specifications for these items are subject to the review and approval of the Planning Commission. The amenity deck shall be maintained in the same condition as installed at the time of occupancy. 13. A detailed water feature plan must be reviewed and approved prior to issuance of any building permits. The plan shall include a minimum of one water feature within the motor court, elevations, hardscape design, lighting concepts and an installation plan. The exact specifications for these items are subject to review and approval of the Planning Commission. The water feature(s) shall be maintained in the same condition as installed at the time of occupancy. 14. The following items must be included as exterior amenities for the development: Enhanced paving in the motor court, enhanced paving on the walkways, an outdoor fireplace, barbeque and a pool and spa on the amenity deck. The exact specifications for these items are subject to the review and approval of the Planning Commission. 15. An interior building amenity plan of the fitness rooms, lounge, yoga room and spas must be reviewed and approved prior to issuance of any building Resolution No. 2009- Page 7 of 20 75A-146 permits. The plan shall include details on the various finishes and equipment to be provided in these rooms. The exact specifications for these items are subject to the review and approval of the Planning Manager. 16. The following items must be included as interior amenities within the common areas: Concierge services for the residents, granite counter tops, hardwood flooring or equivalent, and gas fireplaces. The exact specifications for these items are subject to the review and approval of the Planning Manager. 17. The following items must be included as interior amenities within each unit: granite counter tops or equivalent, hardwood flooring or equivalent, General Electric Monogram appliances or equivalent, tiled bathroom and shower walls, stain grade hard wood cabinets and individual laundry hook- ups. The exact specifications for these items are subject to the review and approval of the Planning Manager. 18. An elevator lobby plan of each lobby must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the finishes and flooring to be provided. The exact specifications for these items are subject to the review and approval of the Planning Manager. 19. Pedestrian walkways shall be provided through all lots to establish pedestrian pathways throughout the development as shown on Exhibit 13. The amenities to be provided along this pathway shall include decorative concrete and paving, accent lighting, and landscape planters as shown on the plans. The materials and design of the walkway is subject to the review and approval of the Planning Manager. The improvements in each phase must be completed prior to occupancy of the first unit in the respective phases. 20. One storage locker shall be provided for each residential unit. The lockers shall be available at no cost to the residents and shall be a minimum of 192 cubic feet in size. 21. Cast iron drain pipes shall be provided for the project. 22. Smart wiring, including cable television and high-speed cable for computers, shall be provided for each unit and within the project's common areas. 23. Signage to direct customers and guests to the adjacent parking structure shall be provided. A directional sign plan needs to be submitted and approved by the Planning Manager prior to issuance of a certificate of occupancy. Resolution No. 2009- Page 8 of 20 75A-147 24. Construction workers for the project shall be prohibited from parking in the adjacent neighborhoods. 25. Prior to issuance of building permits, a Waste Management Plan shall be submitted to the Planning Manager for approval. The plans shall include information on items such as pick-up, delivery, and types of bins required. 26. Prior to occupancy of any units, a rental housing execution plan must be submitted to the Planning Manager for review and approval. At a minimum the plan shall identify the location of employee and visitor parking, the location of the rental office, hour of operation for the rental office, and signage affiliated with the Rental Housing Operational Plan. In addition, the rental plan must clearly note that the parking and project amenities must be provided free of charge to the residence. (Added by the Planning Commission on March 23, 2009) Mitigation Measures 27. Prior to issuance of building permits, the project developer shall ensure that the building plans reflect the following information: outdoor lighting fixtures adjacent to exterior doors and within walkways and parking lots shall generate a minimum 1.0 foot candle level of light during normal operation hours. During non-operating hours, outdoor lighting fixtures shall generate no less than .25 foot candle level of light. All lighting shall be directed towards the interior of the project site. 28. Prior to issuance of building permits, building plans for the proposed project shall reflect the use of non-reflective building materials to minimize light and glare impacts. 29. Prior to the issuance of building permits, a Final Landscape Plan for each building component of the project shall be approved by the City of Santa Ana Planning and Building Agency. The Final Landscape Plan shall be based on the conceptual landscape plan included in the EIR. 30. Prior to issuance of Certificate of Occupancy Permits, the required landscaping for each building component of the project shall be installed to the satisfaction of the City of Santa Ana Planning Department. 31. Prior to the issuance of a building permit, the project developer shall provide the Planning Manager plans that incorporate lighting and any other conditions in the manner required by the FAA during the construction phase (e.g. for the cranes) and after completion. 32. Pursuant to state law, prior to issuance of a certificate of use and occupancy permit, the project proponent shall provide evidence to the City Resolution No. 2009- Page 9 of 20 75A-148 of Santa Ana that a Notice of Airport in the vicinity has been recorded on the deed for each residential unit and shall remain so recorded so as long as the airport is in operation. 33. As required by the AELUP, prior to issuance of the certificate of use and occupancy, the City shall ensure that the sales office for the residential unit posts a conspicuous sign informing potential buyers to the presence of the airport. The notice shall be in the same language as the need notice. 34. Prior to the issuance of a building permit, the project developer shall provide evidence to the Planning Manager that an FAA "No Hazard" determination has been secured for the operation of construction cranes. The project developer shall demonstrate compliance with any conditions imposed by the FAA. 35. During construction, the contractor shall be required to comply with SCAQMD Fugitive Dust Rule 403 to suppress dust generated by construction operations. To ensure compliance with SCAQMD Fugitive Dust Rule 403, grading plans and demolition plans for the proposed project shall reflect the following notes: • All materials excavated or graded shall be sufficiently watered to prevent excessive amounts of dust. Watering with complete coverage shall occur at least twice daily, once in the late morning and once after work is done for the day. • All clearing and earthwork activities shall cease during periods of high winds (winds greater than 25 mph averaged over one hour) or during Stage 1 or Stage 2 smog episodes. • Internal roadways and project site entry and exit points shall be cleaned at the end of each day by the project developer. Dust and debris from construction activities that migrates or is carried onto MacArthur Boulevard or Main Street adjacent to the project site shall also be cleaned each day. • All material transported off-site shall either be sufficiently watered or securely covered to prevent excessive amounts of dust. Haul trucks leaving the site shall have a minimum freeboard distance of 12 inches. • Construction equipment leaving the project site shall be wheel washed. • The amount of area disturbed by clearing and earthwork activities shall be minimized at all times. Resolution No. 2009- Page 10 of 20 75A-149 • Equipment engines shall be maintained in good condition and in proper tune according manufacturer's specifications. • To the extent feasible, construction equipment shall use alternative clean fuels such as compressed natural gas equipment with oxidation catalysts. If alternative clean fuels are not feasible, gasoline powered construction equipment shall be used. • Construction equipment operating on diesel fuel shall use particulate filters or low sulfur diesel. • To the extent feasible construction operations shall use electricity from power poles in-lieu of temporary diesel or gasoline-powered generators. 36. Prior to commencement of construction activities, the project developer shall identify to the City a construction relations officer to act as a community liaison concerning on-site activity, including resolution of issues related to dust generation from grading/paving activities. A publicly visible sign shall be posted with the name of construction relations officer and a telephone number. 37. During finish work, the construction contractor shall ensure the minimization of ROG emissions. Building plans for the project shall specify and require the use of pre-coated building materials, use of high pressure-low volume (HPL~ paint applicators with 50 percent efficiency, and use of lower volatility paint not to exceed 100 grams of ROG per liter. 38. During construction and grading activities, the developer's construction contractor shall comply with the measures set forth in the Storm Water Pollution Prevention Plan (SWPPP) to ensure that airborne dust is kept to a minimum. 39. Prior to issuance of building permits and to the extent feasible, building plans for the proposed project shall reflect the use of the following measures. • Use low-polluting high energy-efficient appliances • Install solar panels on roofs to supply electricity for heating and cooling • Use double-paned windows to reduce thermal loss • Install automatic lighting on/off controls and energy-efficient lighting • Use light colored roofing materials in new construction to deflect heat away from buildings. 40. During grading operations, special handling of on-site soils shall be required due to the high moisture content of the soils, which is well above optimum moisture conditions. The City of Santa Ana shall monitor the Resolution No. 2009- Page 11 of 20 75A-150 grading contractor to ensure stabilization of the soils during grading prior to placing and compacting fill soils over wet sub-grade soils, as recommended in the geotechnical investigation prepared by Geotechnical Professionals, Inc. 41. Prior to issuance of building permits, the project developer shall ensure that pile foundations are incorporated into the project design to mitigate the potential settlement hazards beneath the proposed buildings. Pile foundations shall be installed according to the recommendations provided in the project geotechnical report. 42. Prior to issuance of building permits, the project developer shall ensure that the subterranean portion of the structures is designed and installed to resist hydrostatic pressure and be a water-proof barrier between the existing soils and subterranean portions of the buildings. This design and installation shall be consistent with the recommendations provided in the project geotechnical report. 43. Prior to initiation of project grading, the project developer shall ensure that all existing utilities will be relocated, abandoned and removed, rerouted, or protected in coordination with the project developer and affected utility companies. 44. Prior to issuance of a grading permit for project construction, the project developer shall ensure that a Final Geotechnical Report on the project site is prepared. All recommendations from this Final Geotechnical Report shall be incorporated into the final grading plan for the project. 45. Prior to issuance of building permits, the project developer shall ensure that all structures on the site are designed in accordance with the seismic design provisions set forth in the Final Geotechnical Report and the Uniform Building Code in order to promote safety in the event of a seismic event. 46. Prior to issuance of grading permits, the project developer shall determine and demonstrate to the City of Santa Ana that the foundation piles for the project would not intrude into the Orange County groundwater basin. In the event the foundations intrude into the groundwater basin, the project developer shall obtain approval and/or permits from the Orange County Water District and the Regional Water Quality Control Board. Any measures required by these agencies will be incorporated into the final design and construction specifications for the project. 47. Prior to issuance of grading permits, the project developer shall ensure that provisions set forth in the Final Geotechnical Report regarding dust Resolution No. 2009- Page 12 of 20 75A-151 control measures during site preparation, grading and construction are incorporated into the final construction specifications for the project. 48. Prior to issuance of Certificate of Occupancy permits, the project developer shall submit to the City of Santa Ana CC&Rs for each residential project. The CC&Rs shall outline the environmental awareness, conditions and Best Management Practices regarding the handling and storage of hazardous materials as identified in the Water Quality Management Plan for MacArthur Place South. 49. Prior to issuance of grading permits, the project developer shall provide proof to the City of Santa Ana of an NPDES permit from the RWQCB for on-site dewatering activities. 50. The residential management companies shall ensure that post- construction Best Management Practices (BMPs) are strictly adhered to by all building occupants and tenants. 51. Prior to issuance of a demolition permit, the project developer shall prepare an asbestos survey to determine the presence of asbestos containing building materials. The survey shall be submitted to the City's Environmental Coordinator for review. If asbestos is identified, proper precautions shall be taken during demolition in compliance with California environmental laws, regulations and policies. 52. Prior to issuance of a demolition permit, the project developer shall prepare a lead paint survey to determine the presence of lead based paint. The survey shall be submitted to the City's Environmental Coordinator for review. If lead based paint or mercury is identified, proper precautions shall be taken during demolition in compliance with California environmental laws, regulations and policies. 53. Prior to occupancy of residential units, the project developer shall ensure that CC&Rs for the community homeowners associations are recorded specifying maintenance responsibilities for all BMPs identified in the Water Quality Management Plan. 54. Prior to issuance of a grading permit for the project, the project developer shall prepare and submit a Notice of Intent (NOI) to the State Water Resources Control Board (SWRCB). The developer will also submit the NOI and the project Water Discharge identification Number (WDIN) provided by the SWRCB to the City of Santa Ana City Engineer. 55. During all site preparation, grading and construction, the project developer shall ensure that the project contractor complies with all applicable requirements of the NPDES permit, the Drainage Area Management Plan Resolution No. 2009- Page 13 of 20 75A-152 (DAMP), and the City's Local Implementation Plan (LIP). BMPs from the DAMP and the LIP will be implemented by the project contractors, as appropriate during site preparation, grading and construction. 56. Prior to issuance of a grading permit, the project developer shall prepare a Final Storm Water Pollution Prevention Plan (SWPPP). This plan shall be submitted and approved by the City Engineer prior to initiation of any grading activity. The project shall maintain the SWPPP on the construction site throughout the construction period. 57. During all site preparation, grading and construction, the project developer shall ensure that its contractor implements the provisions of the SWPPP. 58. Prior to the issuance of grading permits, the project developer shall submit a Final Water Quality Management Plan (WQMP) based on the Final Grading Plan, to be approved by the City's Director of Public Works. The WQMP shall be consistent with the DAMP and shall contain provisions and BMPs for construction and operation conditions. 59. Prior to the issuance of building permits, the project developer shall pay the City's drainage impact fee. 60. Prior to the issuance of grading permits, the project developer shall verify that structural BMPs have been permanently incorporated into project plans. Such BMPs shall ensure that pollutants from project-related storm water runoff are mitigated consistently with applicable state and local standards. 61. Prior to issuance of grading permits, the project developer shall submit a final drainage plan to the City identifying the exact size and location of drainage facilities. 62. Prior to issuance of grading permits, the project developer shall provide proof of an NPDES permit from RWQCB to the City for onsite dewatering activities. 63. Prior to issuance of building permits for tenant improvements for restaurant uses, the project developer shall ensure that the proposed restaurants are fitted with grease interceptors to the size and capacity as designated by the City of Santa Ana Building Division. 64. Prior to issuance of building permits, building plans shall reflect the construction of noise barriers to ensure an exterior noise level of 65 CNEL or less around patios and balconies that are considered open space by the City of Santa Ana. The barriers shall be constructed of materials that provide a surface density of at least four pounds per square foot and shall Resolution No. 2009- Page 14 of 20 75A-153 be continuous (without gaps or gates). The height of the barriers shall be sufficient to reduce the exterior noise level to a CNEL of 65 dB or less, and shall be determined by a qualified acoustical consultant as part of the final engineering design of the project. 65. Prior to issuance of building permits, building plans shall specify the STC rating of windows and doors for all residential land uses. Window and door ratings shall be sufficient to reduce the interior noise level to a CNEL of 42 dB or less, and shall be determined by a qualified acoustical consultant as part of the final engineering design of the project. 66. Prior to building occupancy, mechanical ventilation shall be installed at the proposed condominiums and residential towers since the interior CNEL standard of 42 dB is to be met with all windows and doors closed. 67. Prior to building occupancy, to the extent possible, all equipment shall be enclosed within a building or separate structure. Where this is not possible, barriers may be necessary to shield the equipment from the existing and proposed residential buildings. Depending on the size and style of the equipment, silencers in the intake and exhaust ducts may also be necessary to reduce noise at the residential buildings to an acceptable level. 68. Upon project completion, truck deliveries to the restaurant and the retail building shall be restricted to the hours of 7:00 a.m. to 10:00 p.m. Delivery trucks shall not be permitted to idle in the parking lots or loading areas and shall be required to have properly maintained, factory approved mufflers. Delivery truck drivers shall be encouraged to minimize acceleration and maintain reduced vehicle speeds while onsite. 69. Demolition and construction plans for the proposed project shall reflect the following note: "During demolition and construction, the contractor shall adhere to all City Noise Ordinance requirements to limit all construction activity, including equipment start-up, to between the hours of 7:00 a.m. and 8:00 p.m. Mondays through Saturdays. No construction shall take place on Sundays or federal holidays. 70. During demolition and construction, the contractor shall site all construction staging and storage areas away from sensitive receptors to the furthest extent possible. 71. During construction activities, the project developer shall ensure that all pile driving equipment shall be enclosed on all sides with an acoustical blanket barrier that provides a minimum sound transmission class (STC) rating of 30. The height of the blanket enclosure shall be at least 20-feet. With the exception of points of access to the enclosure area, there shall Resolution No. 2009- Page 15 of 20 75A-154 be no openings or gaps in the enclosure, and all points of access are to remain closed during pile driving activities. Notwithstanding Mitigation Measure No. 67, pile driving shall not commence prior to 8:00 a.m. on Saturday. 72. Prior to issuance of grading or demolition permits, the project developer shall submit a construction equipment staging plan to the City of Santa Ana for approval. 73. Prior to the start of construction activity, the project developer shall post the name and telephone number of the construction relations officer on- site. 74. Prior to any site preparation, grading or construction, the project contractor shall provide to resident associations in the Sandpointe neighborhood, the Main Attraction Condominiums and the Pinnacle Apartments a project schedule indicating the type of construction activity and duration, construction staging areas and the name and telephone number of the construction relations officer. 75. Prior to issuance of occupancy permits, the project developer, at the project developer's sole expense, shall conduct a noise monitoring analysis to ensure that residential units achieve an interior noise level of 42 dB CNEL. The analysis shall be conducted by a qualified acoustical consultant and shall be submitted to the City's Planning and Building Agency for review. 76. Prior to issuance of a building permit, the project developer shall coordinate any required relocation of fire hydrants on the property with Santa Ana Fire Department. Final approval from the Fire Department is required regarding location of hydrants on the project site. 77. Prior to issuance of a grading permit, the project developer shall submit building plans to the Santa Ana Police Department in order to ensure compliance with the City of Santa Ana's Building Security Ordinance. The Police Department must approve the building plans with regard to the Building Security Ordinance prior to initiation of grading. 78. Prior to issuance of a building permit, the project developer shall prepare a Mandated Security Plan, which would need final Police department approval. The plan is required to address issues such as onsite uniform security staffing, restriction of hours of operation for the parking garages, implementation of electronic security, mechanical surveillance, and compliance with the basic principles of Crime Prevention Through Environmental Design. Resolution No. 2009- Page 16 of 20 75A-155 79. Prior to issuance of a building permit, the project developer shall comply with Senate Bill 50 and pay applicable school impact fees. Currently, the Santa Ana Unified School District's adopted Fee Justification for residential development is $2.14 per square foot and $0.33 per square foot for commercial development. 80. Prior to issuance of a building permit, the project developer shall ensure that the appropriate park Acquisition and Development Fee and parkland dedication or in-lieu payments have been made. 81. Prior to issuance of building permits, the project developer shall submit a Construction Phasing Plan to Santa Ana Fire Department. The plan must be consistent with the Fire Department Fire Code requirements and must show that emergency access to the construction site is adequate. 82. Prior to issuance of building permits, the project developer shall provide evidence to the Santa Ana Fire Department that the proposed fire protection and life saving systems incorporated in the project are adequate. 83. Prior to issuance of building permits, the project developer shall submit the final design of the project, including fire sprinklers system design to the Santa Ana Fire Department for approval. 84. Prior to issuance of building permits, the project developer shall coordinate with the Santa Ana Fire Department and the Santa Ana Police Department regarding possible radio interference and installation of radio repeaters on a tower rooftop. 85. Prior to issuance of building occupancy permits, the project developer in cooperation with the City of Santa Ana, shall provide for the restriping of the outside southbound through lane at the intersection of Main Street and Sunflower to a shared through and right turn lane. 86. Prior to issuance of building occupancy permits, the project developer in cooperation with the City of Santa Ana, shall provide for the restriping the shared through right-turn lane at Hutton Centre Drive and MacArthur Boulevard to provide an exclusive through lane and construct a second northbound right turn lane for the northbound traffic. 87. Prior to issuance of building occupancy permits, the project developer shall pay for the construction of a third eastbound through lane on MacArthur Boulevard between Hutton Centre Drive/Imperial Promenade and the SR-55 northbound on-ramp. Resolution No. 2009- Page 17 of 20 75A-156 88. Prior to the issuance of building occupancy permits, the project developer in cooperation with the City of Santa Ana, shall provide for the installation of a traffic signal at Hutton Centre Drive and Hutton Centre Loop. 89. Prior to issuance of building occupancy permits, the project developer shall pay for the construction of a fourth eastbound lane on MacArthur Boulevard between Hutton Centre Drive/Imperial Promenade and the SR- 55 southbound on-ramp. 90. Prior to issuance of building occupancy permits, the project developer shall contribute $200,000 for the City of Santa Ana to prepare a neighborhood traffic study to assess any intrusion of project traffic into the Sandpointe Neighborhood. If traffic intrusion is attributable to the project, corrective measures could include forced-turn channelization, semi- diverters, diagonal diverters and cul-de-sacs. 91. Prior to issuance of building occupancy permits, the project developer shall develop a parking plan in cooperation with the City of Santa Ana to ensure that parking needs are met. 92. Prior to issuance of building occupancy permits the project developer shall pay afair-share contribution for restriping a second eastbound right-turn lane at the intersection of Main Street and Sunflower in order to achieve LOS D for 2025. 93. Prior to issuance of grading permits, the project developer shall coordinate with SCE to determine the exact location of all underground and overhead electrical facilities. All electrical facilities and associated structures to be left on the project site shall be protected from damage. 94. Prior to issuance of grading permits, the project developer shall ensure that grading plans reflect the under grounding of utility lines serving the proposed project. 95. Prior to issuance of grading permits, the project developer shall coordinate with Southern California Gas to determine the exact location of all underground natural gas facilities. All gas pipelines and associated structures to be left on the project site must be protected from damage. 96. Prior to issuance of grading permits, the project developer shall coordinate with Adelphia Communications to determine the exact location of all underground cable facilities. The developer shall protect all existing cable lines and associated structures to be left on the project site for damage. 97. Prior to issuance of grading permits, the project developer shall coordinate with SBC Communications (formerly Pacific Bell) to determine the exact Resolution No. 2009- Page 18 of 20 75A-157 location of all underground telephone facilities. The developer shall protect all existing telephone lines and associated structures to be left on the project site from damage. 98. Prior to issuance of grading permits, the project developer shall demonstrate to the City of Santa Ana that construction-related waste generated on-site would be recycled wherever feasible as the first choice of disposal method, leaving the option of landfill disposal as a last alternative. The proposed commercial uses shall incorporate facilities for collection and pick-up of recyclable materials into the design of the project. 99. Prior to issuance of grading permits, the project developer shall coordinate with the Santa Ana Water Division to determine the exact location of all existing underground water supply facilities and take action to prevent damage to these facilities to be left on the project site or interfere with their operation. The project developer shall pay their fair share amount for the necessary facilities to accommodate project-related water supplies. 100. Prior to issuance of building permits, the existing eight-inch sewer line along Hutton Centre Drive north of Sandpointe Avenue, shall be replaced with a new 10-inch sewer line. 101. Prior to issuance of grading permits, the project developer shall coordinate with Waste Management on the type and location of facilities needed to provide solid waste disposal service to the project site. 102. Prior to issuance of grading permits, the project developer shall perform soil testing to determine is soil to be excavated from the site will require off-site disposal. If the soil is found to be contaminated, it will be properly disposed of in compliance with California environmental laws, regulations and policies. B. Police Department A security plan must be submitted to the Police Department at the plan check stage for approval. The plan must cover all aspects of the projects security including security personnel, surveillance equipment, and hardware. The project will be required to have a minimum of four state licensed uniformed security personnel. One security officer will be required for each building, one for the podium level and one for the parking garage. 2. A minimum 12-inch shatterproof convex mirror shall be installed at each stair landing. All doors leading into stairwells shall be equipped with a minimum 5-inch by 20-inch fire rated window. The last flight of stairs shall be fully enclosed at its base. Resolution No. 2009- Page 19 of 20 75A-158 3. The City of Santa Ana parking structure design standards shall be followed in its entirety. Duress alarms allowing voice communication with security personnel shall be placed in strategic locations, approved by the Police Department, throughout the parking garage. 4. All project walkways shall be illuminated to a minimum maintained one footcandle of light. 5. All elevators serving the residential component of the project shall be equipped with card readers at the garage levels to restrict unauthorized access into the residential towers. The elevator lobbies shall be designed and constructed of material that allows maximum visibility of the interior of the lobby from the parking decks. Glazing material will be used to its maximum extent. Resolution No. 2009- Page 20 of 20 75A-159 KO- 4/28/09 RESOLUTION NO. 2009- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA DENYING THE AMENDMENT TO CONDITIONAL USE PERMIT NO. 2005-15 FOR THE PROPERTIES LOCATED AT 100-130 EAST MACARTHUR BOULEVARD BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The applicant is requesting approval of an amendment to Conditional Use permit No. 2005-15 to allow the rental of some or all units at the property located at 100-130 East MacArthur Boulevard. B. On March 23, 3009, the Planning Commission held a duly noticed public hearing and by a vote of 4:3 (Gartner, Mill, Turner opposed) voted to recommend that the City Council: Deny application of Integral Communities, I, Inc. to amend Development Agreement No. 2005-02. 2. Adopt a resolution denying the amendment to Conditional Use Permit No. 2005-15. C. On May 4, 2009, the City Council of the City of Santa Ana held a duly noticed public hearing and at that time considered all testimony, written and oral. D. The application for the amendment to Conditional Use Permit No. 2005-10 has been filed with the City of Santa Ana seeking to allow the rental of some or all units at the property located at 100-130 East MacArthur Boulevard. E. Santa Ana Municipal Code Section 41-638 and 41-649 authorizes the City Council to grant a conditional use permit upon making certain findings. The City Council determines that the findings necessary to grant a conditional use permit have not been established: 1. Will the proposed use provide a service or facility which will contribute to the general well being of the neighborhood or community? Resolution No. 2009- Page 1 of 4 75A-160 The proposed Montage multi-family residential use at 100-130 East MacArthur Boulevard will not provide a facility that will contribute to the general well being of the surrounding community. The project developer has not established a development track record in the City, which has resulted in concerns with the potential quality of the Montage project. Since the project has yet to be constructed, it is likely that the project will not be a high-quality residential housing development, thereby affecting the property values of the surrounding neighborhoods and adversely impacting the general well being of the community. 2. Will the proposed use under the circumstances of the particular case be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity? The proposed multi-family residential use will be detrimental to the general welfare of persons residing and working in the area. Concerns with the potential quality of the Montage project and the lack of strong property management of a rental project will result in a lesser quality project that will adversely impact the welfare of the adjacent Sandpointe Neighborhood. 3. Will the proposed use adversely affect the present economic stability or future economic development of properties surrounding the area? The proposed project will adversely affect the economic stability within the MacArthur Place South development area and the adjacent Sandpointe Neighborhood. Due to a reduction in quality associated with the construction of a rental project and potential issues with the future management of the rental project, the Montage development will negatively impact the present economic stability of the area. 4. Will the proposed use comply with the regulations and conditions specified in Chapter 41 for such use? The proposed use would be in violation of the express terms of the Development Agreement adopted, pursuant to Chapter 41 and State law, for the project. The Development Agreement, which was signed by Integral's predecessor in interest and recorded against the property at the time Integral acquired it, does not permit apartments, but instead requires for-sale condominiums to be built on the property. 5. Will the proposed use adversely affect the General Plan or any specific plan of the City? The proposed project will adversely affect several goals identified in the General Plan of the City. Goal 1 of the General Plan encourages a balance of land uses to address Resolution No. 2009- Page 2 of 4 75A-161 basic community needs and Goal 3 promotes the preservation and integrity of existing neighborhoods. The construction of a rental project will not be consistent with these goals as several apartment projects are located in the immediate area, with for-sale housing needed to provide a balance of land uses. Further, the pride of ownership associated with for-sale housing results in better quality projects that improve the character of adjacent neighborhoods. Section 2. The City Council of the City of Santa Ana after conducting the public hearing hereby: 1. Denies the application of Integral Communities, I, Inc. to amend Development Agreement No. 2005-02; and 2. Denies the amendment to Conditional Use Permit No. 2005-15 as for the property located at 100-130 East MacArthur Boulevard. These decisions are based upon the evidence submitted at the abovesaid hearing, which includes but is not limited to: the Request for Council Action dated May 4, 2009 and exhibits attached thereto; and the public testimony written and oral, all of which are incorporated herein by this reference. Section 3. This decision rendered by the City Council of the City of Santa Ana is final and is subject to judicial review pursuant to California Code of Civil Procedure section 1094.6. The Clerk of the Council shall give direct notice to the applicant of the Council's decision and these findings. ADOPTED this day of May, 2009 Miguel A. Pulido Mayor Resolution No. 2009- Page 3 of 4 75A-162 APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Kylee O. Otto Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2009-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. 2009- Page 4 of 4 75A-163 75A-164 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 4, 2009 TITLE: PUBLIC HEARING - ZONING ORDINANCE AMENDMENT NO. 2009-04, AMENDMENT TO DEVELOPMENT AGREEMENT NO. 2005-02, CONDITIONAL USE PERMIT NO. 2009-08 AND VARIANCE NO. 2009-02 TO ALLOW THE CONSTRUCTION OF A COURTYARD BY MARRIOTT HOTEL AT 6 EAST MACARTHUR PLACE - NEXUS DEVELOPMENT CORPORATION, APPLICANT CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1S' Reading ^ Ordinance on 2~d Reading ^ Implementing Resolution ^ Set Public Hearing For CONTINUED TO FILE NUMBER Staff recommended that the Planning Commission: 1. Adopt a resolution approving the Addendum to the Final Environmental Impact Report No. 2004-02 and approve the mitigation monitoring program. 2. Adopt an ordinance approving Zoning Ordinance Amendment No. 2009-04. 3. Adopt an ordinance approving the Amendment to Development Agreement No. 2005-02. 4. Adopt a resolution approving Conditional Use Permit No. 2009-08 as conditioned. 5. Adopt a resolution approving Variance No. 2009-02 as conditioned. PLANNING COMMISSION ACTION With one commissioner (Gartner) absent, the Planning Commission at its April 13, 2009, meeting split 3:3 on this project. Commissioner Yrarrazaval initially made a motion to approve the staff recommendation with conditions added to include a mitigation measure addressing short term parking impacts as well as revise several components of the exterior architecture including the screening of window vents and recessing the windows. The motion was seconded by Chairman Leo 75B-1 ZOA No. 2009-04, CUP No. 2009-08, Amend DA No. 05-02 and VA No. 2009-02 May 4, 2009 Page 2 with an amendment (that was acceptable to Commissioner Yrarrazaval) requiring the addition of stone to the base of the hotel. This motion failed by a vote of 3:3 (Mill, Yrarrazaval and Leo in favor; Alderete, Betancourt and Turner opposed; Gartner absent). A substitute motion was made by Commissioner Alderete and seconded by Commissioner Betancourt to continue the item to the April 27, 2009 meeting to allow the applicant time to make the changes that were raised by the Commission at this hearing as well as at the study session held on February 23, 2009. This motion also failed by a vote of 3:3 (Alderete, Betancourt and Turner in favor; Mill, Leo and Yrarrazaval opposed; Gartner absent). Following the failure of the second motion Chairman Leo declared an impasse pursuant to Planning Commission Bylaws (Resolution 01-44 Section 8e) . In cases where the Chairman declares an impasse, the proponent of the project is offered the option of either continuing the items to a later date for further consideration by the Commission or the denial of the items to allow the applicant to appeal the decision to the City Council. The Applicant has requested the items be denied by the Planning Commission to allow them to move forward to the City Council for a final decision (Exhibit A). FISCAL IMPACT There is no fiscal impact associated with this action. ~~ L ~_ J M. Trevino Executive Director Planning & Building Agency MF:rb mf/reports/CUP/cup09-08va09-02 da05-02zoa09-04 Courtyard by Marriott.cc 75B-2 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: APRIL 13, 2009 TITLE: PUBLIC HEARING - FILED BY THE NEXUS DEVELOPMENT CORPORATION FOR ZONING ORDINANCE AMENDMENT NO. 2009-04, AMENDMENT TO DEVELOPMENT AGREEMENT NO. 2005-02, CONDITIONAL USE PERMIT NO. 2009-08 AND VARIANCE NO. 2009-02 TO ALLOW THE CONSTRUCTION OF A COURTYARD BY MARRIOTT HOTEL AT 6 EAST MACARTHUR PLACE Prepared by Matt Foulkes 1 ! 1 ~~ ~ ~. _.. __ Executive Director RECOMMENDED ACTION Recommend that the City Council: PLANNING COMMISSION SECRETARY APPROVED ^ As Recommended ^ As Amended ^ Set Public Hearing For DENIED ^ Applicant's Request ^ Staff Recommendation CONTINUED TO s Planning Manager 1. Adopt a resolution approving the Addendum to the Final Environmental Impact Report No. 2004-02 and approve the mitigation monitoring program. 2. Adopt an ordinance approving Zoning Ordinance Amendment No. 2009-04. 3. Adopt an ordinance approving the Amendment to Development Agreement No. 2005-02. 4. Adopt a resolution approving Conditional Use Permit No. 2009-08 as conditioned. 5. Adopt a resolution approving Variance No. 2009-02 as conditioned. DISCUSSION Request of Applicant The Nexus Development Corporation is requesting approval of a zoning ordinance amendment, a conditional use permit, an amendment to a development agreement and a variance to allow the construction of a new Courtyard by Marriott hotel within the MacArthur Place South development at 6 East MacArthur Place. EXHIBIT A 75B-3 ZOA No. 2009-04, CUP No. 2009-08, Amend DA No. 05-02 and VA No. 2009-02 April 13, 2009 Page 2 Property Description The MacArthur Place South development, formerly known as Hutton Centre, is a master planned, 43-acre mixed-use development located on the south side of MacArthur Boulevard between Main Street and the Newport-Costa Mesa (SR-55) Freeway. Currently located in MacArthur Place South is 1,450,000 square feet of commercial office area consisting of two 14- story office buildings, two 10-story office buildings and two 8-story office buildings. In addition, two 25-story residential high-rise towers (Skyline) with 349 condominiums, a 13,470 square foot food/retail building, a 174-room, 84,210 square foot Doubletree Club hotel and four 6-story parking structures are located on the site (Exhibits 1 and 2). The Courtyard by Marriott hotel site, more formally known as the Cinema site, is a 2.78-acre parcel of land generally situated east of MacArthur Place (formerly Hutton Center Drive) and south of MacArthur Boulevard. The site is currently vacant but formerly contained a 35,000 square foot Edwards Theater building that was demolished in 2007. The overall project site is zoned Specific Development District No. 76 (SD-76) and has a General Plan land use designation of District Center (DC) Surrounding land uses include the MacArthur Place mixed-use development to the north, the Newport-Costa Mesa (SR-55) Freeway and the City of Costa Mesa to the east, office development to the south and the Sandpointe residential neighborhood to the west (Exhibits 1 and 2). Project Description The Nexus Development Corporation is proposing to relinquish entitlements to build the 13,470 square foot retail/restaurant building and the six-story office/residential (15-unit) loft building on the Cinema site and construct a new 185 room, 100,000 square foot Courtyard by Marriott hotel. The four-story hotel will be located on the corner of MacArthur Place and MacArthur Boulevard, with a surface parking lot and existing parking structure south of the project providing the required parking. Access to the hotel will be taken from two driveways, one located on the west side of the hotel from MacArthur Boulevard, and the other located on the south side of the hotel from MacArthur Place (Exhibit 3). 75B-4 ZOA No. 2009-04, CUP No. 2009-08, Amend DA No. 05-02 and VA No. 2009-02 April 13, 2009 Page 3 The hotel will include approximately 3,000 square feet of meeting rooms/conference space on the first floor as well as 1,600 square feet of outdoor activity space directly adjacent to the conference space. The main lobby of the hotel will also feature a media area, home theatre area, lounge, cafe and bar. Also included on the first floor is a 700 square foot exercise room adjacent to an outdoor pool and spa (Exhibit 4). The exterior of the hotel will feature a variety of materials including ceramic tile, smooth and textured stucco and metal accents and railings. The building has been designed to complement the existing high-rise towers by utilizing similar design features including the use of glass storefronts, curving metal railings on the north and south elevations and varying the buildings in/out articulation on each of its elevations to add to its visual interest (Exhibits 5 and 6). The hotel landscaping has been designed to highlight its various architectural elements while providing a pleasant pedestrian experience. Canary Island Pines, Mexican Fan Palms and Jacaranda trees will be utilized along the MacArthur Boulevard side of the hotel to provide a visual buffer from the street as well as provide shade for an outdoor patio and seating area. Vine covered metal trellises are proposed along MacArthur Place to complement the Jacaranda's and Mexican Fan Palms as well as enhance the pedestrian experience along this elevation. Scored concrete, outdoor seating and a water feature have been included at the southeast corner of the hotel to continue the enhanced pedestrian experience along this elevation as well as provide a point of visual interest for the site (Exhibit 7). Analysis of the Issues The originally approved entitlements for the Cinema site included a 25- story high-rise tower containing 150 for-sale condominium units, approximately 13,500 square feet of retail and restaurant uses and a six-story, mixed-use loft building containing 15 residential units and 10,000 square feet of office space. In December of 2008, Nexus Development Corporation submitted a revised plan showing the removal of the retail and restaurant building and the six-story mixed-use loft building, the relocation of the 25-story high-rise tower and the proposed 4-story hotel. As a result of this revised proposal, amendments to the original entitlements, as well as several new entitlements, will be required. 75B-5 ZOA No. 2009-04, CUP No. 2009-08, Amend DA No. 05-02 and VA No. 2009-02 April 13, 2009 Page 4 Zoning Ordinance Amendment When the Specific Development No. 76 Zoning District (SD-76) was created it divided the MacArthur Place South project site into two zones. Zone 1 consisted of all the properties within Hutton Centre with the exception of the Nexus projects (Exhibit 8) The permitted uses in Zone 1 remained unchanged, allowing similar uses to what is currently allowed in the C2 zones with the exception of several incompatible uses (such as automobile sales and repair, equipment rental yards and hospitals). Zone 2, which encompasses the currently proposed project as well as the other Nexus projects, was proposed to permit only offices, museums, libraries and galleries by right. Other uses such as retail, restaurants and residential were to be conditionally permitted in the zone to allow the City to review each project and apply conditions necessary to ensure the project remains a quality development. At that time, hotel uses were not considered as either a permitted or conditionally permitted use as there were several other hotels in the area and the project site had already been slated for retail, restaurant and residential uses. Although hotel uses were not considered in the original Specific Development they are still compatible with the underlying goal of SD-76 to create a mixed use, active urban center. In addition to the guests staying at the hotel using the surrounding retail and restaurants within the project site, the hotel's ample meeting space has the potential to attract groups and special events. Both of these activities also have the potential to increase pedestrian activity within the project area on a daily basis. Additionally, the project sites location near several arterial streets as well as convenient access to the Newport-Costa Mesa (SR-55) Freeway make it an appropriate location for a hotel use (Exhibit 9) . Conditional Use Permit In conjunction with the amendment to Specific Development No. 76 to conditionally allow hotel uses within Zone 2, the applicant is also requesting a conditional use permit for the proposed Courtyard by Marriott. By requiring a conditional use permit the City maintains the ability to more fully review projects as well as include any necessary conditions to ensure the project remains of the highest quality. 75B-6 ZOA No. 2009-04, CUP No. 2009-08, Amend DA No. 05-02 and VA No. 2009-02 April 13, 2009 Page 5 The City has worked with the applicant during project design to ensure that close attention is paid to both the quality of the design as well as its integration within the MacArthur Place project site. The buildings articulation and materials as well as landscaping have been designed to complement the other existing projects in the area, while further enhancing the pedestrian experience as they move through the project area. Additionally, the hotel has provided several amenities including an exercise room, pool and spa, media center, lounge, cafe and bar to accommodate a wide variety of needs for hotel guests. One issue that staff has identified relating to the hotel operation is the potential noise impacts associated with material and trash deliveries and pick-ups along the west side of the hotel adjacent to future residential units. To address this issue, a condition has been added restricting the permitted hours for deliveries between 7:00 a.m. and 10:00 p.m. Parking Variance Under the previous entitlements, the Cinema Site contained a mixture of residential, retail, office and restaurant space. The project site would have been served by 449 surface and subterranean parking spaces and would have after hour (5:00 p.m. to 7:00 a.m.) access to an adjacent 500-space parking structure. The shared parking study prepared in 2005 by Kaku Associates found that the project would have adequate parking with the use of the adjacent parking garage, and the City approved a 49 space parking variance for the project based on the shared parking analysis. The new site plan for the Cinema site proposes a 185-room Courtyard by Marriott Hotel, served by a 133-space surface parking lot. In addition to the 133 spaces adjacent to the hotel, hotel guests and employees will have access to 50 of the 500 garage spaces during the daytime on weekdays bringing the total number of available parking spaces to 183 during the weekday and 633 in the evenings and on weekends. The applicant is now requesting a variance from the parking requirements of Section 41-1344 of the Santa Ana Municipal Code to allow a reduction in the required parking. Based on code requirement, a total of 204 parking spaces are required for the hotel use while only 183 spaces are available. Of these 183 spaces, the Double Tree Club hotel, located within MacArthur Place South has an agreement to use 25 of the parking spaces as overflow parking. As a result of this agreement, the effective parking deficit for the proposed Marriott is 46 spaces or 25.1 percent. 75B-7 ZOA No. 2009-04, CUP No. 2009-08, Amend DA No. 05-02 and VA No. 2009-02 April 13, 2009 Page 6 To analyze the new parking reduction for the hotel project, a shared parking study was prepared by Fehr & Peers using the Urban Land Institute's (ULI) shared parking methodology. Shared parking is defined as a parking space that can be used to serve two or more individual land uses without conflict or encroachment. The result of that study concluded that at its peak demand and lowest supply, which is during the week between the hours of 8:00 a.m. and 9:00 a.m., the hotel will require 182 parking spaces while 183 parking spaces are provided. During evening and weekend hours when the peak demand is higher (197 spaces on weekends between 10:00 p.m. and 11:00 p.m.), the hotel will have access to the adjacent 500-space parking garage to satisfy the increased parking demand (Exhibit 10). In addition to the results of the shared parking study, parking impacts will also be minimized through the use of tandem valet parking spaces in a portion of the surface parking lot. The use of tandem valet spaces allows for the more efficient use of the parking lot by ensuring that there is minimal space wasted between vehicles. A condition of approval has been added to require this service be available on a 24-hour basis to hotel guests and continually managed by the hotel. Based on this analysis, staff is in support of the 46 space parking variance. Development Agreement Amendment The development agreement is a legal contract between the developer and the City that defines the terms and nature of development proposed for the project site. This agreement establishes development intensity, permitted uses and standards for the term of the agreement. In exchange for the City vesting approval of the proposed project, the development agreement requires certain improvements and public benefits (Exhibit 11). The previously approved Development Agreement did not consider hotels within the MacArthur Place South project area. In conjunction with the amendment to Specific Development No. 76 to conditionally allow hotels in this area, the approved development agreement must also be modified. While the component of the development agreement relating to permitted uses will be modified to allow hotel uses within Zone 2 of the Specific Development, none of the other requirements or conditions relating to required improvements or development standards will be modified. Conclusion On February 23rd a Planning Commission work study session was held to review the proposed hotel project. At this meeting issues related to the projects timeline, the viability of a hotel use within the project 75B-8 ZOA No. 2009-04, CUP No. 2009-08, Amend DA No. 05-02 and VA No. 2009-02 April 13, 2009 Page 7 area and the buildings architectural design were discussed. Although several of the Commissioners concerns were resolved at the meeting, the applicant has elected not to make any additional changes to the plan as a result of the issues raised at the study session. The proposed hotel use within the MacArthur Place South will remain in compliance with the policies outlined in the General Plan Land Use Element and will continue to promote this area as an active, vibrant urban center. Therefore, based upon an analysis of the project and the project's compatibility with the City's General Plan and applicable development standards, staff recommends that the Planning Commission recommend that the City Council approve Zoning Ordinance Amendment No. 2009-04, Amendment to Development Agreement No. 2005-02, Addendum to the Final Environmental Impact Report No. 2004-02 and approve the mitigation monitoring program, Conditional Use Permit No. 2009-08 as conditioned and Variance No. 2009-02 as conditioned (Exhibits 12 through 15) CEQA Compliance In accordance with the California Environmental Quality Act, the recommended actions have been reviewed through an Addendum to the previously certified Environmental Impact Report 2004-02. CEQA guidelines (California Code of Regulations 15000, et seq.) authorizes the use of an addendum for the purpose of making minor or technical changes, as long as these changes do not rise to the level of requiring a subsequent or supplemental EIR pursuant to CEQA Guidelines 15162. The originally certified Environmental Impact Report was analyzed in light of the revised site plan and it was determined that there are no new significant impacts resulting from the changed plan. Several mitigation measures that required modification and/or further clarification have been added to the conditions of approval for this project (Exhibit 16). Additionally, a new traffic study was performed to analyze the potential changes in traffic circulation as a result in the changed land uses from residential, restaurant and retail to hotel uses. The result of the traffic analysis concluded that the hotel use at this site will result in 83 fewer trips in the morning peak hour, 105 fewer trips in the afternoon peak hour and 758 fewer trips on a daily basis (Exhibit 17), thus requiring no additional review or mitigation measures. 75B-9 ZOA No. 2009-04, CUP No. 2009-08, Amend DA No. 05-02 and VA No. 2009-02 April 13, 2009 Page 8 The determination that there are no new significant impacts or any increases in the severity of the impacts previously identified in the original Environmental Impact Report mean that in accordance with CEQA 15164, the Addendum to the previously certified MacArthur Place South EIR is the appropriate document for the actions proposed. 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Z-.B ~.L-~~ -.Z-,B ~ .Z-.~i C ~Yi °w h _: ~ :~~ ~V9 3e W ~ }~ ~~ ~< "~! ~~ ~y~ ~Y ~~ O~ CQ m Q O O O O _~ Y Y~ L ~ ~:~ ~ ~~~ `~ ~\` O S ~~ ~~ C C C O° 8 ~ ~ ~ a}i 3 8 ~ o uu~'J'.., ~ ~ Y~j .Z-.B j~ .Z-.B -~: ,L-,9~ ,1-,11 S ~ ~ ~~ i ~ ~~ ~9 G k 3 S 8 0 O ~° O o ~ O 3 O O O 0 0 AMENDMENT TO ZOA 09-4, DA05-2, CF~U P 09-8 f& VA 09-2 ~'~T 1 6 ~~n~ ~.~ x 1 's L~~y `'' B ~~d ~~~~~"" ! ll_L ~ ~I.r;,~"~Q0. ~ ~ ~ ~ W ou~ "~~ W°~ ~4 Us R~ RR2 i~ ~^^ ~X r O M~ W O O' ~~:' x s s i x r a w o o ,~ ' • ~~!!~ ~~~~ ~U3dO1;130 !~!~ VV tlIN2lO~Iltl~'bVNV^tlLJtl^S = fi a 6 € l~~~OdW ~8 Q~d~OI I~J o Ill c°° ,-i e~ ~ ~ ~~ ~ ~ u l i l l l I~ ;~~ ~ ~! .' ~ r~ wE if iE ~~ ~, iE ~s ~i ~i ~i ~i ~i ~i ~i ~i ~~ 9 8 ! ~ ~ _ ~ - ~~~' " ~_ 0 YW '.tl 9 bw ; ~ 7 p 66 F ~{ A d ~1 Y 8a t Y a ~S Y f ~ o T +. o ~- -~ ~~ - I ~ i~ i -~ t S ~ n a ~ ~ ~ ~$r ~ r, a s a x ~ a~~ ~~o N ~o o s as ~ a 63~ ~4 o ~~ 3 ; c ~ s," € ~ is~ g5f Z ~~ % ~ ~~ ~ Y E i ~~~ ~~i fr T p e' 3e 3 ~ Y ~ ~ aa ~ ~W5 fB~ Q ~ ~y EE M1. 6f ~ # E ~~~ iCi,,~'ee W x ~~ £~ ~ C 2~ ~: ~ 6 a xEf t6t tll € f ~a = ° w~ '~~ f8 b. pp '~ EE U Y~ xe xo & ~ i} F~ k S ~ }Ea "~[i w € 6o ee a ~ $: Ada k "~ E ~c~ ~ 5'a 3~. .. . l T 1 - (AMENDMENT TO ZOA 09-4, DA05-2,~P~9~~ VA 09-2 ~. ~_ Al GENERAL AGRICULTURAL -B PAAKING MODIFICATION GSM COMMERCIAL SOUTH MAIN C1 COMMUNITY COMMERCIAL C1-MD COMM. COMMERCIAVMUSEUM DISTRICT C2 GENERAL COMMERCIAL C3 CENTRAL BUSINESS C3-A CENTRAL BUSINESS-ARTIST VILLAGE C4 PLANNED SHOPPING CENTER C5 ARTERIAL COMMERCIAL CR COMMERCIAL RESIDENTIAL GC GOVERNMENT CENTER M7 LIGHT INDUSTRIAL M2 HEAVY INDUSTRIAL MO MILITARY OPERATIONS O OPEN SPACE P PROFESSIONAL PCD PLANNED COMMUNTTYDEVELOPMENT PRD PLANNED RESIDENTIAL DEVELOPMEN7 ~`~~/// ~ Change Zoning from C-2 to SD-76 ~~~~~ R1 SINGLE FAMILY RESIDENTIAL R2 7WOFAMILYRESIDENCE R3 MULTIPLE FAMILY RESIDENCE R4 SUBURBAN APARTMENTS RE RESIDENTIAL ESTATE SD SPECIFIC DEVELOPMENT SP SPECIFIC PLAN AA 05-1 /CUP 05-10 TH R U 13 & 15/DA 05-2/ EIR 04-2iTM 05-2 THRU 4NA 05-5, 7, 10 & 12 ~~• NEXUS DEVELOPMENT CORPORATION ~' MACARTHUR PLACE SOUTH - - =soo FeEr 7' =1000 FEET ~~.u ~~~ h~ ZONING: From C2 to SD-76 P L A N N I N G A I AMEND TO A 09-4, G A G E N C Y DA05-2, '~ ~VA 09-2 HIBIT 8 MacArthur Place South 1~ttep-Ceete~Mixed Use Specific Development District (SD-76) TABLE OF CONTENTS SECTION 1. Applicability of Ordinance SECTION 2. Purpose SECTION 3. Objectives and Policies SECTION 4. Permitted Improvements SECTION 5. Permitted Uses SECTION 6. Conditionally Permitted Uses SECTION 7. Development Standards 1. Maximum Density 2. Minimum Parcel Size 3. Overall Project a. General Requirements b. Building Setbacks c. Building Height d. Screening 4. Parking a. General Requirements b. Residential Components c. Other Uses 5. Building Elevations SECTION 8. Miscellaneous Standards 1. Landscaping 2. Signage 3. Common Areas 4. Public Art AMENDMENT TO ZOA09-4, DA05-2, CUP09-S &VA09-2 EXHIBIT 9 75B-19 MacArthur Place South MacArthur Place South-Mixed Use Specific Development District (SD-76) SECTION 1 APPLICABILITY OF ORDINANCE The specific development zoning district, as authorized by Chapter 41, Division 26, of the Santa Ana Municipal Code, is specifically subject to the regulations contained in this ordinance for the express purpose of establishing use district regulations. All other applicable chapters, articles and sections of the Santa Ana Municipal Code shall apply unless expressly waived or superseded by this ordinance. Use district regulations established in Chapter 41, Article III, of the Santa Ana Municipal Code for zoning districts other than the SD zoning district may be incorporated herein by reference. The boundaries of the MacArthur Place South I~tt~ Ce~eMacArthur Place South-Mixed Use Specific Development District shall be defined pursuant to Exhibit A (attached hereto and incorporated as though fully set forth herein). MacArthur Pllace South Mixed Use Specific Development District shall have two zones, Zone 1 and Zone 2, as depicted in Exhibit A. SECTION 2 PURPOSE The Specific Development No. 76 (SD-76) use district regulations are hereby established for the express purpose of protecting the health, safety and general welfare of the City by encouraging the use of innovative planning concepts and principles, promoting and enhancing the value of properties, and encouraging orderly development. This district is intended to provide standards for areas located in a District Center and adjacent to high capacity arterial streets. SECTION 3 OBJECTIVES AND POLICIES The _MacArthur Place South Mixed Use Specific Development District is located within the southeastern area of the City. The ~~ ~~+~~°~eMacArthur Place South Mixed Use Specific Development District encompasses a mixture of office, restaurant, retail, hotel and residential land uses. The following site development policies are designed to encourage greater convenience, efficiency, excellence of design and visual appeal than is typically achieved with usual residential and commercial development. The policies of the MacArthur Place South Mixed Use Specific Development District include the following: Uses shall be integrated within the overall MacArthur Place South campus in terms of architecture, pedestrian orientation and circulation, vehicular circulation, landscape and urban design. 75E~-20 • Internal circulation shall separate customer traffic from loading, delivering, and pedestrian traffic. • Access to and from the adjacent arterial streets and highways shall be limited, in order to ensure efficient and safe vehicular circulation. • Adequate open spaces and landscaping shall be provided for all uses and shall be integrated with building and parking areas. • Awell-planned system of pedestrian linkages, enhanced with water features, seating areas, and other pedestrian amenities, shall be developed for convenient access between all uses developed on the site. • Walkways, parking and open spaces shall be provided with adequate lighting for safe and convenient nighttime use. SECTION 4 PERMITTED USES IN ZONE 1 The permitted land uses within Zone 1 shall be as follows: 1. Professional, business and administrative offices. 2. Museums, libraries and galleries. 3. Retail and Service Uses. 4. Restaurants, cafes, and eating establishments, other than those specified in section 41-365.5. 5. Coffee houses, tea houses, and bakeries. SECTION 5 CONDITIONALLY PERMITTED USES IN ZONE 1 The following uses are permitted within Zone 1 upon the approval of a conditional use permit in accordance with the Santa Ana Municipal Code: 1. Theaters. 2. Hotels. 3. Child care facilities. 4. Nightclubs, bars and indoor entertainment uses whether freestanding or part of another permitted or conditionally permitted use. Adult entertainment businesses shall not be permitted within Zone 1. 5. Establishments selling or serving alcoholic beverages. 75E~-21 6. Banquet facilities, subject to development standards set forth in section 41-199.1. 7. Uses open between the hours of 12:00 midnight and 5:00 a.m. 8. Health Clubs. SECTION 6 PERMITTED USES IN ZONE 2 The permitted land uses within Zone 2 shall be as follows: 1. Professional, business and administrative offices. 2. Museums, libraries and galleries. SECTION 7 CONDITIONALLY PERMITTED USES IN ZONE 2 The following uses are permitted within Zone 2 upon the approval of a conditional use permit in accordance with the Santa Ana Municipal Code: 1. Nightclubs, bars and indoor entertainment uses whether freestanding or part of another permitted or conditionally permitted use. Adult entertainment businesses shall not be permitted within Zone 2. 2. Establishments selling or serving alcoholic beverages. 3. Banquet facilities, subject to development standards set forth in section 41-199.1. 4. Uses open between the hours of 12:00 midnight and 5:00 a.m. 5. Multi-family residential uses. 6. Live/work communities in compliance with the following standards: a. Residential use is permitted only in combination with individual work space in a manner which provides an integrated working and living environment. b. Alive/work unit shall be at least nine hundred (900) square feet in size. c. The residential component of a live/work unit shall meet the following standards: i. It shall have access to separate bathroom facilities, including a water closet, a wash basin, and a bathtub or shower. ii. It shall have separate kitchen facilities including a kitchen sink, cooking appliances and refrigerator. All such 75-22 facilities shall have a clear working space of at least thirty (30) inches in front. iii. It shall comply with all Housing Code requirements as modified by section 8-2700 of this Code. iv. In-unit laundry facilities shall be required. v. No residential component shall be permitted on the ground floor of the live/work unit. 7. Outdoor Farmers Markets. 8. Full service cafes and restaurants, which may include incidental take-0ut service. Full service cafes and restaurants shall be limited to those that provide sit down dining areas and exclusive table service for ordering and delivering meals and beverages. 9. Coffee houses, tea houses, and bakeries. 10. Health Clubs. 11. Retail and service uses. X12. Hotels SECTION 8 DEVELOPMENT STANDARDS IN ZONE 2 The following general development standards are applicable to this project: Maximum Development Intensfir Consistent with the General Plan, the maximum residential density allowed for the site shall be 90 dwelling units per acre within SD-76. The maximum floor area ratio for other permitted uses shall be 1.0. 2. Minimum Parcel Size The minimum parcel size shall be 2.5 acres. 3. Overall Project The development plans and material samples shall be submitted to and approved by the Planning Commission pursuant to Section 41- 593.4 prior to issuance of any building permits. a. Building Setbacks Setbacks are established to enhance pedestrian space throughout the district, create compatible relationships between existing and future building elevations, and recognize opportunities to create new open spaces such as plazas, pedestrian 75~-23 ways and landscaped areas. discussed below by street: Main Street: Major setback conditions are All projects shall maintain a building setback of 15 feet. Entry steps to residential units may encroach into this setback area in order to provide a transition between public and private spaces. ii. MacArthur Boulevard: All r°~~,~~~:a;-projects shall maintain a building setback of 15 feet. Entry steps to residential units may encroach into this setback area in order to provide a transition between public and private spaces. iii. Sandpointe Avenue: All projects shall maintain a building setback of 10 feet. Entry steps to residential units may encroach into this setback area in order to provide a transition between public and private spaces. iv. Hutton Center Drive: All projects shall maintain a building setback of 10 feet. b. Building Height The building height of a project shall not be approved where the Federal Aviation Administration (FAA) has determined such height to be a hazard to air navigation. c. Screening All appurtenances shall be located outside any required setback and shall be screened from view. 4. Parking a. General Requirements 75-24 Parking shall not encroach Parking structures below encroach within required MacArthur Boulevard. into required setbacks at grade. residential buildings shall not setbacks along Main Street or ii. Parking structures that incorporate trash enclosures shall maintain sufficient vertical clearances to facilitate trash truck access. iii. Glare from the parking structure lighting shall not be visible from any public right-of-way. iv. The ceiling of all parking levels shall be painted white and be maintained to improve illumination and enhance safety within the parking structure. v. The parking structure shall comply with the Santa Ana Municipal Code sections pertaining to the Police Department's Security requirements, including parking lot lighting levels. vi. The parking structure shall comply with the Santa Ana Police Department's parking structure design guidelines. b. All uses shall comply with the parking provisions outlined in Chapter 41 of the Santa Ana Municipal Code (SAMC). 5. 6 7. Landscaping Prior to issuance of any building permit, a detailed Landscape Plan shall be submitted to and be approved by the Planning Commission. Signage a. All signage shall comply with the Santa Ana Municipal Code. b. Prior to issuance of any sign permits or certificates of occupancy for any building or portion thereof, a comprehensive sign program for the entire site, including directional signs and graphics for the parking structure, shall be submitted to and be approved by the Planning Commission. Public Areas 75~-25 Prior to issuance of any building permits, a detailed plan of the public areas shall be submitted to and approved by the Planning Commission. a. Exterior kiosks, carts or other temporary outdoor uses are not allowed unless specifically submitted to and approved by the Planning Commission. b. The public areas shall incorporate seating, benches, street furniture and landscaping to provide visual interest and additional amenities within the public areas. All seating, benches, street furniture surfaces, pedestrian-level walls and similar amenities shall be made of a durable material such as concrete or painted iron and be designed to minimize effects from vandalism, skateboarding and weather and incorporate graffiti resistant coatings. c. Pedestrian amenities shall be provided such as lighting, planters, drinking fountains, unit pavers, and bicycle racks. d. Trash receptacles should be located in high-activity areas, such as plazas and other public open spaces. The style shall be compatible with other public areas' furnishings. e. The property shall be maintained free of graffiti. All graffiti shall be removed within 48-hours of occurrence. 75-26 MacArthur Plaee-Cinema Block- shared Parkingr Analysis March 30, 2009 ~-~ ,., ?s r } v _ ,~: ~ Ili $~ r: _ , ~ ~ If k.. ,. ~' u 6:.F <'. x.,~ ~. , ,a.~ _s~,._ .f ...~ ~~ ~,~ Shared Parking Resuits FEHR TRANSPORT Table 2 shows that the peak parking demand (for the peak month -June) for the Cinema Block with the Marriott Hotel would be 182 spaces on a weekday morning. During weekday mornings and afternoons, there would be a total of 183 spaces available, which would include the surface parking (133 spaces) and additional weekday parking located in the adjacent parking structure (50 spaces), yielding a peak occupancy of 99.5%. Figure 2 illustrates the parking demand for the busiest hour of the weekday daytime hours for each month of the year. During the evening on a weekday, the demand would be 189 spaces, and the weekend peak parking demand would be 177 spaces during the daytime and 197 spaces during the evening. It is during these time periods that not only the surface parking lot would be available, but also the entire adjacent parking structure, for a total supply of 633 parking spaces. Figure 3 illustrates the parking demand for the busiest hour during the weekday evening in comparison to the parking supply available during that specific time of the day. Figure 4 provides the parking demand for the busiest hour for the weekend for each month of the year. It should be emphasized that the busiest hour of the day for the time periods shown in Figures 2 through 4 generally represent only one or two hours of the day. The remaining hours experience less than the peak demand, oftentimes by a substantial margin. Figure 5 shows the hourly parking demand .across the entire day for both weekend and weekday conditions. The typical weekday parking demand (during the busiest month of the year) falls between 140 and 150 spaces even though the absolute peak weekday daytime parking demand occurs at 8:00 AM with a parking demand of 182 spaces. The .hotel parking demand decreases after guests leave their rooms between 8:00 and 9:00 AM. Table 3 summarizes the shared parking demand for the Cinema Block with the proposed Marriott Hotel during the peak month of June. Adequate parking is available to serve the parking demand of the hotel during both the weekday and weekend peak periods, even during the busiest month of the year. Table 3 Shared Parking Analysis Summary Parking Supply vs. Peak Month Parking Demand Cinema Block Weekday Weekend Daytime Nighttime Daytime Nighttime Marriott Supply 183 633 Demand 182 189 633 633 Courtyard Hotel % Occupied 99.5% 29.9% 197 28.0% 31 1 Available Spaces 1 444 . 456 436 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza M-30 P.O. Box 1988 Santa Ana, California 92702 FREE RECORDING GOVERNMENT CODE § 6103 THIRD AMENDMENT TO DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and THE GRAND PLAN 2, LLC Dated: , 2009 Ordinance No. NS- AMENDMENT TO ZOA09-4, DA05-2, CUP09-8 &VQA09-2 7 x]-~IT ~ V THIRD AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA, and THE GRAND PLAN 2, LLC This THIRD AMENDMENT TO DEVELOPMENT AGREEMENT ("Third Amendment") is entered into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California ("City"), and THE GRAND PLAN 2, LLC, a California limited liability company ("GP2"). 1. Reference to Facts. This Third Amendment is entered into with reference to the following facts: 1.1 Capitalized terms not defined herein shall have the meaning set forth in the Development Agreement. 1.2 The Grand Plan 1, LLC, a California limited liability company ("GP 1 ") and The Grand Plan 2, LLC, a California limited liability company ("GP2"), on the one hand, and City, on the other hand, entered into that certain Development Agreement dated August 4, 2005 and recorded in the Orange County Official Records on July 21, 2005 as Instrument No. 2005000565108 (as amended, the "Development Agreement") pursuant to which, among other things, Owner (as defined in the Development Agreement) was granted the vested right to develop a mixed use Project with residential condominiums and office/commercial/retail uses, as more particularly described therein. GP2 rights and obligations under the Development Agreement include the Condo/Office Project and Restaurant Portion Elements of the Project, which are the subject of this Third Amendment. 1.3 A First Amendment to the Development Agreement by and between the City, GP2, NDC Skyline Associates, LLC and Integral Communities I, Inc. (the latter two being assignees of GP 1) was executed on or about July 7, 2008 and recorded in the Orange County Official Records on July 22, 2005 as Instrument No. 2008000349227. Simultaneous with its consideration of this Third Amendment, the City Council of the City of Santa Ana is considering a proposed Second Amendment to the Development Agreement, which is concerned solely with consideration of separate requests for the City to approve rental use (as opposed to for-sale condominiums) of the Lake Tower Element and Integral Project Element of the Project. 1.4 The original Development Agreement and Entitlements (i) described the Condo/Office Project Element of the Project as consisting of a six (6) tower consisting of fifteen (15) for-sale residential units on four (4) floors and approximately ten thousand (10,000) square feet of office use on two (2) floors, and (ii) described the Restaurant Portion Element of the Project as consisting of approximately thirteen thousand eight hundred seventy-one (13,871) square feet of commercial space, including approximately eight thousand five hundred eighty (8,580) square feet of restaurant. 1.5 In lieu of the Condo/Office Project and Restaurant Portion, which Elements are no longer part of the Project, GP2 seeks approval of a Hotel Project. For purposes of this Third Amendment, the "Hotel Project" shall consist of a new 185 room, 100,000 square foot, four-story (approximately 57.3 feet above grade) hotel to be located on the corner of MacArthur Place and 3rd amendment to development agreement hotel (2) 4/9/2009 11:02 AM2 2 75B-29 MacArthur Boulevard served by 133 surface parking spaces, and GP2's right to park in the Teacher's Parking Garage during certain specified hours of the week. 1.6 Approval of the Hotel Project will require the relocation of the Cinema Tower, which is also owned and developed by GP2. The City and GP2 agree and acknowledge that GP2 must submit a new application to the City for site plan review for the proposed new location of the Cinema Tower, which must be reviewed and approved by the City's Planning Commission. 1.7 In connection with the foregoing, GP2 and the City now desire to amend the Development Agreement to provide GP2 with approval of the Hotel Project subject to the terms and conditions of the Development Agreement, as amended. 2. Hotel Project. GP2 and the City hereby acknowledge and agree that GP2 has the right under this Third Amendment to construct and operate the Hotel Project, as hereinafter defined. 3. Modification of Certain Provisions. The Development Agreement is hereby amended and supplemented in the following particulars: 3.1 Section 1.1(1). The phrase "office/commercial/retail uses" appearing in Section 1.1(1) of the Development Agreement is hereby amended and restated to read as "hotel uses with ancillary retail/restaurant uses." 3.2 Section 2.13. The entire section is deleted and replaced with the word "Reserved." 3.3 Section 2.23. The entire section is deleted and replaced with the word "Reserved." 3.4 Section 2.25A. A new section is added between Section 2.25 and 2.26 to read as follows: "'Hotel Project' is defined in Section 2.43." 3.5 Section 2.21. This section is amended by added to it the following. "The Project also includes a new 185 room, 100,000 square foot, four-story (approximately 57.3 feet above grade) hotel to be located on the corner of MacArthur Place and MacArthur Boulevard served by 133 surface parking spaces, and GP2's parking rights in the Teacher's Parking Garage during certain specified hours of the week, as set forth in detail in Development Permit No. 2008-8, Zoning Ordinance Amendment No. 2009-04, Conditional Use Permit No. 2009-08, Variance No. 2009-02, Environmental Review No. 2008-235 (An Addendum to the Final Environmental Impact Report for Environmental Review No. 2004-02). 3.6 Section 2.43(2). The section is deleted and replaced by the following: "A new 185 room, 100,000 square foot, four-story (approximately 57.3 feet above grade) hotel to be located on the corner of MacArthur Place and MacArthur Boulevard served by 133 surface parking spaces, and GP2's parking rights in the Teacher's Parking Garage during certain specified hours of the week (the `Hotel Project')." 3rd amendment to development agreement hotel (2) 4/9/2009 11:02 AM3 3 75B-30 3.5 Section 2.43(4). The first two (2) sentences are deleted in their entirety and the third sentence, which begins a new paragraph, is hereby amended and restated to read in its entirety as follows: "The Lake Towers, the Cinema Tower, the Hotel Project, and the Integral Project are each an `Element."' 3.6 Section 2.52. 'The entire section is deleted and replaced with the word "Reserved." 3.7 Section 2.55. The following is added to this Section: "The City and GP2 agree and acknowledge that the final location of the relocated Cinema Tower has not been determined. This is other issues related to its relocation shall be resolved by submission of an application by GP2 for Development Project Plan Approval pursuant to Division 3 of Article V of Chapter 41 of the City's Municipal Code, which shall be processed pursuant to said Division and Section 41-593 et seq. of the City's Municipal Code." 3.8 Section 5.1.11. The phrase "Restaurant Portion" appearing in Section 5.1.11 of the Development Agreement is hereby amended and restated to read as "Hotel Project." 4. Full Force and Effect; Counterparts. Except as amended herein the Development Agreement shall remain in full force and effect in accordance with its terms. This Third Amendment may be executed in any number of counterparts, all of which shall constitute one and the same instrument. [Signature and Notary Pages Follow] 3rd amendment to development agreement hotel (2) 4/9/2009 11:02 AM4 4 75B-31 IN WITNESS WHEREOF, this Third Amendment has been executed by the City of Santa Ana and The Grand Plan 2, LLC. Dated this day of , 2009. "CITY" THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California By Approved as to Form: By JOSEPH W.FLETCHER City Attorney 4/9/2009 11:02 AMS 3rd amendment to development agreement hotel (2) DAVID N. REAM City Manager "GP2" THE GRAND PLAN 2, LLC, a California limited liability company By Name Its 5 75B-32 STATE OF CALIFORNIA COUNTY OF ss. On before me, ,Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC STATE OF CALIFORNIA COUNTY OF ss. On before me, ,Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC 3rd amendment to development agreement hotel (2) 4/9/2009 11:02 AM6 6 75B-33 STATE OF CALIFORNIA COUNTY OF ss. On before me, ,Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC 3rd amendment to development agreement hotel (2) 4/9/2009 11:02 AM7 7 75B-34 Conditional Use April 13, 2009 Page 1 of 2 Permit No. 2009-08 Findings of Fact A. Will the proposed use provide a service or facility which will contribute to the general well being of the neighborhood or community? The proposed use will provide an additional service to the community by providing a high-quality business hotel that will offer a variety of amenities including 3,000 square feet of conference room/meeting space, media area, lounge, cafe, pool and spa to it guests. Conditions of approval have been included to ensure the quality and the attractiveness of the overall design which will contribute to the general well being of the community. B. Will the proposed use under the circumstances of the particular case be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity? The proposed hotel use in conjunction with the rest of the MacArthur Place South development will not be detrimental to persons residing and working in the area. Any effect relating to the health, safety and general welfare of persons residing or working in the vicinity have been addressed through various mitigation measures identified in the Addendum to Environmental Impact Report 2004-02. These mitigation measures cover all aspects of the hotel from construction to daily operation and include mitigation measures relating to construction noise and soil retention to the permitted hours of operation for material deliveries and pick-ups. C. Will the proposed use adversely affect the present economic stability or future economic development of properties surrounding the area? The proposed hotel use will not adversely affect the economic stability within the MacArthur Place South development area. The 185-room hotel and 3,000 square foot conference/meeting rooms will provide a diverse customer base for adjacent retail and restaurant uses which will reinforce the economic viability of the project area. AMENDMENT TO ZOA09-4, DgQ,Sg~VA09-2 Conditional Use Permit No. 2009-08 April 13, 2009 Page 2 of 2 D. Will the proposed use comply with the regulations and conditions specified in Chapter 41 for such use? The project will be in compliance with all applicable provisions of Chapter 41 of the Santa Ana Municipal Code as well as the provisions of the SD-76 zoning district with the exception of parking. A variance will be required to deviate from this standard. E. Will the proposed use adversely affect the General Plan or any specific plan of the City? The proposed project will not adversely affect the General Plan as hotel uses are conditionally permitted within the Specific Development No. 76 (SD-76) zoning district. The General Plan Land Use Element Policy 2.2 encourages commercial development to accommodate the City's need for goods and services. A hotel use with conference and meeting rooms provides a needed service within the City. Also Policy 2.6 encourages the creation of new employment opportunities which are compatible with surrounding land uses, and provide a net community benefit. A hotel use at this location will provide a sizable amount of diverse employment opportunities while remaining compatible with surrounding development. 75B-36 APRIL 13, 2009 PAGE 1 OF 3 Conditions of Approval Should Conditional Use Permit No. 2009-08 be approved, the project shall comply with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of this conditional use permit. A. Planning Division 1. The project shall remain in compliance with Site Plan Review (DP No. 08-81) . 2. Any amendment to this conditional use permit must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the conditional use permit must be amended. 3. Prior to issuance of a Certificate of Occupancy the applicant shall provide a Parking Management Plan documenting how the tandem valet parking will function. Included in this plan shall be a commitment on behalf the hotel operator to offer valet parking service on 24-hour basis to hotel guests. 4. A detailed landscape plan must be reviewed and approved prior to issuance of any building permits. In addition to the landscaping palette, the plan shall include details on the hardscape design, lighting concepts and outdoor furniture. At a minimum, the project shall incorporate the amount and size of landscaping as shown on Sheet CSL1.1. The exact specifications for these items are subject to the review and approval of the Planning Commission. AMENDMENT TO ZOA09-4, DA05-2, CUP09-8 &VA09-2 7 ~ ~Hj$~T,13 APRIL 13, 2009 PAGE 2 OF 3 Mitigation Measures 5. Prior to issuance of building permits the project applicant shall ensure that building plans for the proposed project shall include the use of non-reflective building materials to minimize light and glare impacts. 6. During the design and construction, the project developer shall incorporate features in to the project that will minimize impacts from greenhouse gas emissions such as planting onsite trees as a means of providing carbon storage, promoting energy saving measures beyond Title 24 requirements and encouraging the use of Energy Star equipment appliances. 7. During grading operations, the project applicant shall ensure special handling of on-site soils as required by the City of Santa Ana, due to the high moisture content of the soils, which is well above optimum moisture conditions. The City of Santa Ana shall monitor the grading contractor to ensure stabilization of the soils during grading prior to placing and compacting fill soils over wet subgrade soils, as recommending in the geotechnical investigation prepared by Geotechnical Professionals, Inc. 8. Prior to the issuance of a building permit, the project developer shall provide evidence to the Planning Manager that the FAA Determination of No Hazard to Air Navigation has been obtained for the relocated Cinema Tower. The project developer shall demonstrate compliance with any conditions imposed by the FAA in their determination. 9. During operation of the hotel, the project developer shall ensure that truck deliveries to the hotel shall be restricted to the hours of 7:00 a.m. to 10:00 p.m. Delivery trucks shall not be permitted to idle in the parking lots or loading areas and shall be required to have properly maintained, factory- approved mufflers. Delivery truck drivers shall be encouraged to minimize acceleration and maintain reduced vehicle speeds while on-site. 75B-38 APRIL 13, 2009 PAGE 3 OF 3 10. During project construction for the hotel, the project contractor shall verify that structural designs and acoustical baffling are implemented to reduce noise levels form mechanical equipment (ventilation fans, air conditioning and refrigeration units and their associated inlet and exhaust systems)to a level that complies with the City's Municipal Code noise ordinance standards. 11. Prior to issuance of building permits, the project developer shall ensure that the building plans for the hotel shall incorporate facilities for collection and pick-up of recyclable materials. B. Police Department 1. Existing surface parking lot must conform to the provisions of Chapter 8, Article II Division 3 of the Santa Ana Municipal Code (Building Security Ordinance). These code conditions will require that the existing project's lighting be upgraded to current code standards. Lighting standards cannot be located in required landscape planters. 75B-39 Variance No. 2009-02 April 13, 2009 Page 1 of 2 Findings of Fact A. That because of special circumstances applicable to the subject property, including size, shape, topography, location or surroundings, that the strict application of the zoning ordinance is found to deprive the subject property of privileges not otherwise at variance with the intent and purpose of the provisions of this Chapter. The MacArthur Place South site is a contained site surrounded by existing commercial and residential developments. The shared parking analysis, prepared by Fehr & Peers has determined that sufficient parking will be provided for the project during times of peak demand. The parking variance will allow the applicant the ability to use the property in a manner that is consistent with similar surrounding commercial, residential and professional uses. B. That the granting of a variance is necessary for the preservation and enjoyment of one or more substantial property rights. The granting of the variance to allow reduction in parking requirement will preserve the property owner's ability to develop the property with a high quality hotel that is consistent with the Specific Development No. 76 (SD-76) zoning district. The shared parking analysis, prepared by Fehr & Peers has determined that sufficient parking will be provided on site in a combination of surface and structured parking during times of peak demand. C. That the granting of a variance will not be materially detrimental to the public welfare or injurious to surrounding property. The granting of the variance to allow reduction in parking requirement will not be materially detrimental to the public welfare or injurious to surrounding property. Conditions have been added requiring the submittal of a parking management plan for the surface parking lot relating to the use of tandem valet parking spaces. A separate condition has been added to requiring valet service on a 24-hour basis for hotel guests. AMENDMENT TO ZOA09-4, DA05-2, CUP09-8 &VA09-2 7 ~[IBI~ij Variance No. 2009-02 April 13, 2009 Page 2 of 2 D. That the granting of a variance will not adversely affect the General Plan of the City. The granting of the variance to allow reduction in parking requirement will not adversely affect the General Plan of the City since the proposed hotel was designed in conformance with City Zoning, Development, and General Plan requirements except for the parking requirements. The General Plan Land Use Element Policy 2.2 encourages commercial development to accommodate the City's need for goods and services. A hotel use with conference and meeting rooms provides a needed service within the City. Also Policy 2.6 encourages the creation of new employment opportunities which are compatible with surrounding land uses, and provide a net community benefit. A hotel use at this location will provide a sizable amount of diverse employment opportunities while remaining compatible with surrounding development. 75B-41 APRIL 13, 2009 PAGE 1 OF 3 Conditions of Approval Should Variance No. 2009-02 be approved, the project shall comply with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this variance. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of this variance. A. Planning Division 1. The project shall remain in compliance with Site Plan Review (DP No. 08-81). 2. Any amendment to this conditional use permit must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the conditional use permit must be amended. 3. Prior to issuance of a Certificate of Occupancy the applicant shall provide a Parking Management Plan documenting how the tandem valet parking will function. Included in this plan shall be a commitment on behalf the hotel operator to offer valet parking service on 24-hour basis to hotel guests. 4. A detailed landscape plan must be reviewed and approved prior to issuance of any building permits. In addition to the landscaping palette, the plan shall include details on the handscape design, lighting concepts and outdoor furniture. At a minimum, the project shall incorporate the amount and size of landscaping as shown on Sheet CSL1.1. The exact specifications for these items are subject to the review and approval of the Planning Commission. AMENDMENT TO ZOA09-4, ' DA05-2, CUP09-8 &VA09-2 EXHIBIT 15 75B-42 APRIL 13, 2009 PAGE 2 OF 3 Mitigation Measures 5. Prior to issuance of building permits the project applicant shall ensure that building plans for the proposed project shall include the use of non-reflective building materials to minimize light and glare impacts. 6. During the design and construction, the project developer shall incorporate features in to the project that will minimize impacts from greenhouse gas emissions such as planting onsite trees as a means of providing carbon storage, promoting energy saving measures beyond Title 24 requirements and encouraging the use of Energy Star equipment appliances. 7. During grading operations, the project applicant shall ensure special handling of on-site soils as required by the City of Santa Ana, due to the high moisture content of the soils, which is well above optimum moisture conditions. The City of Santa Ana shall monitor the grading contractor to ensure stabilization of the soils during grading prior to placing and compacting fill soils over wet subgrade soils, as recommending in the geotechnical investigation prepared by Geotechnical Professionals, Inc. 8. Prior to the issuance of a building permit, the project developer shall provide evidence to the Planning Manager that the FAA Determination of No Hazard to Air Navigation has been obtained for the relocated Cinema Tower. The project developer shall demonstrate compliance with any conditions imposed by the FAA in their determination. 9. During operation of the hotel, the project developer shall ensure that truck deliveries to the hotel shall be restricted to the hours of 7:00 a.m. to 10:00 p.m. Delivery trucks shall not be permitted to idle in the parking lots or loading areas and shall be required to have properly maintained, factory- approved mufflers. Delivery truck drivers shall be encouraged to minimize acceleration and maintain reduced vehicle speeds while on-site. 75B-43 APRIL 13, 2009 PAGE 3 OF 3 10. During project construction for the hotel, the project contractor shall verify that structural designs and acoustical baffling are implemented to reduce noise levels form mechanical equipment (ventilation fans, air conditioning and refrigeration units and their associated inlet and exhaust systems)to a level that complies with the City's Municipal Code noise ordinance standards. 11. Prior to issuance of building permits, the project developer shall ensure that the building plans for the hotel shall incorporate facilities for collection and pick-up of recyclable materials. B. Police Department 1. Existing surface parking lot must conform to the provisions of Chapter 8, Article II Division 3 of the Santa Ana Municipal Code (Building Security Ordinance). These code conditions will require that the existing project's lighting be upgraded to current code standards. Lighting standards cannot be located in required landscape planters. 75B-44 State Clearinghouse No.: 2004061140 Draft EIR (Distributed): March 4, 2005 Final EIR (Certified On): June 20, 2005 a ., ~ .:: ~.' _ >> t1 I ~ `~ . ,,.. .~: _ , .s:~ ~-~~ ~~ ~ _ ti. _ _ _ ",.~„ `"~._t '_~~ ,t ice, .. ~,:. ~ .~ ~ ~ .~ •wsr. . ~, . ~ .. -. .~d ~ ~ ~ 7e ~ ~~w~ R ~ s ~M1i ~ ai ^`~+ m ~D ..__..., .. SL .t .:.. r~ it Addendum to Final Environmental Impact Report No. 2004-02 MacArthur Place South ~~ $d..aa~., ~,~ City of Santa Ana March 2009 Prepared for•• Lead Agency City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92702 Contact Person: Vince Fregoso Principal Planner Planning Division (714) 667-2713 Prepared by.• 0~~~ CAA Planning 85 Argonaut, Suite 220 Aliso Viejo, California 92656 Contact Person; Shawna L. Schaffner Chief Executive Officer (949) 581-2888 AMENDMENT TO ZOA09-4, DA05-2, CL?P09-8 &VA09-2 E~~~6 45 State Clearinghouse No.: 2004061140 Draft EIR (Distributed): March 4, 2005 Final EIR (Certified On): June 20, 2005 Contents Introduction ................................................................................................................................................... 1 A. Executive Summary ..................................................................................................................1 B. Environmental Impact Report Addendum ................................................................................. l C. Statutory Requirements ............................................................................................................. 1 Project Description ........................................................................................................................................5 A. Location .....................................................................................................................................5 B. Background ............................................................................................................................... 5 C. Description of Proposed Project .............................................................................................. 15 D. Approvals Contemplated .........................................................................................................23 Environmental Analysis ..............................................................................................................................25 Conclusion .................................................................................................................................................. 53 Inventory of Applicable Mitigation Measures ............................................................................................ 54 Environmental Checklist .............................................................................................................................57 List of Exhibits Exhibit 1 -Regional Map ............................................................................................................................. 7 Exhibit 2 -Project Vicinity Map .................................................................................................................. 9 Exhibit 3 - 2005 Site Plan ..........................................................................................................................11 Exhibit 4 - 2005 Cinema Site Plan .............................................................................................................13 Exhibit 5 -Proposed Site Plan .................................................................................................................... 17 Exhibit 6 -Proposed Cinema Site Plan ...................................................................................................... 19 Exhibit 7 -Ground Floor Plan .................................................................................................................... 21 Exhibit 8 -North and South Hotel Elevations ............................................................................................ 27 Exhibit 9 -East and West Hotel Elevations ............................................................................................... 29 Exhibit 10 -Landscape Plan ....................................................................................................................... 31 Appendix A -MacArthur Place Specific Plan Amendment Trip Generation Evaluation, April 1, 2009 MacArthur Place South D ~~~~ EIR Addendum o iii 75B-46 Introduction A. Executive Summary The Final Environmental Impact Report ("EIR") for the MacArthur Place South project was certified on June 20, 2005. The project is a mixed use development consisting of three 25-story residential towers, three low rise condominium buildings, asix-story residential/office building with 10,000 square feet of office and 15 residential loft units, and asingle-story 13,871 square-foot retail building consisting of 8,580 square feet of restaurant and 5,290 square feet of retail. The project site is located at the southeast corner of MacArthur Boulevard and Main Street in southeast Santa Ana. East of the site is the Costa Mesa Freeway (SR-55), south and east of the site is the City of Irvine and the City of Costa Mesa is located to the southwest. John Wayne Airport is approximately 1.1 miles south of the project site. This document constitutes the Addendum to the Final EIR for the Mac Arthur Place South project, SCH #2004061140, as certified by the City of Santa Ana. The Addendum reviews the environmental impacts identified in the EIR in relation to changes to the project since the EIR was certified. These include the elimination of the Cinema Lofts (comprised of 15 residential units and 10,000 square feet of office use), removal of 13,871 square feet of retail/restaurant uses, the addition of a 185 room hotel, moving the Cinema Tower south of its approved location and the eventual construction of a parking structure for joint use by the hotel and Cinema Tower. An Initial Study Checklist, pursuant to CEQA, is included herein. The Initial Study and the Addendum fully comply with all relevant California Environmental Quality Act (CEQA) standards to determine if the EIR remains adequate to address the impacts resulting from the project pursuant to CEQA Guidelines § 15164. B. Environmental Impact Report Addendum Pursuant to § 15367 of the CEQA Guidelines, the City of Santa Ana is the Lead Agency for this project. As defined, the lead agency has the principal responsibility for carrying out or approving a project. This Addendum updates the progress made in the project, as certified, and serves to update the information in the EIR as contemplated in CEQA Guidelines § 15164. This document will also be used to acknowledge the addition of mitigation measures and further project modifications to the site. The CEQA Guidelines (California Code of Regulations § 15000, et seq.) authorize the use of an Addendum for the purpose of making minor or technical changes, as long as these changes do not rise to the level of requiring a subsequent or supplemental EIR pursuant to CEQA Guidelines § 15162. CEQA Guidelines § 15164 states: a) The lead agency or a responsible agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in Section 15162 calling for preparation of a subsequent EIR have occurred. C. Statutory Requirements Section 21166 of the California Environmental Quality Act (CEQA, Public Resources Code §21000, et seq.) sets the standard to determine whether another EIR should be prepared when an original EIR has been prepared. Section 21166 states: MacArthur Place South D ~,~~,rt, EIR Addendum o `~ 75B-47 When an environmental impact report has been prepared for a project pursuant to this division, no subsequent or supplemental environmental impact report shall be required by the lead agency or by any responsible agency, unless one or more of the following events occurs: (a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report. (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report. (c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available. Section 21166 is further explained in the CEQA Guidelines at § 15162 as follows: (a) When an EIR has been certified or a negative declaration adopted for a project, no subsequent EIR shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following: (1) Substantial changes are proposed in the project which will require major revisions of the previous EIR or Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; (2) Substantial changes occur with respect to the circumstances under which the project is undertaken, which will require major revisions of the previous EIR or Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or (3) New information of substantial importance which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the Negative Declaration was adopted, shows any of the following: (A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration; (B) Significant effects previously examined will be substantially more severe than shown in the previous EIR; (C) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible, and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or MacArthur Place South D ~~~~ EIR Addendum o 2 75B-48 (D) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. (b) If changes to a project or its circumstances occur or new information becomes available after adoption of a negative declaration, the lead agency shall prepare a subsequent EIR if required under subsection (a). Otherwise, the lead agency shall determine whether to prepare a subsequent negative declaration, an addendum, or no further documentation. (c) Once a project has been approved, the lead agency's role in project approval is completed, unless further discretionary approval on that project is required. Information appearing after an approval does not require reopening that approval. If after the project is approved, any of the conditions described in subsection (a) occurs, a subsequent EIR or negative declaration shall only be prepared by the public agency which grants the next discretionary approval for the project, if any. In this situation no other Responsible Agency shall grant an approval for the project until the subsequent EIR has been certified or subsequent negative declaration adopted. (d) A subsequent EIR or subsequent negative declaration shall be given the same notice and public review as required under Section 15087 or Section 15072. A subsequent EIR or negative declaration shall state where the previous document is available and can be reviewed. The key to §21166 and §15162 is to determine if any circumstances have changed enough to justify repeating a substantial portion of the environmental documentation process. If conditions do not justify a new or supplemental EIR, but minor additional or technical changes (such as traffic updates, additional mitigation measures, or project improvements) are appropriate to keep the document current and useful, an agency may prepare an Addendum (CEQA Guidelines § 15164). This Addendum will document the character of any changes or additions to support the determination to prepare an Addendum. It will also provide an opportunity to evaluate all components of § 15162 to determine if the EIR still reflects the full scope of the environmental impact. Where appropriate, citations to the EIR will be made, and assumptions made in the EIR will be evaluated for continuing validity. As described in this Addendum, there are no new significant impacts or any increase in the severity of the impacts previously identified in the EIR. There are no substantial changes proposed in the project which require major revisions of the previous EIR. Therefore, in accordance with CEQA § 15164, this Addendum to the previously certified MacArthur Place South EIR is the appropriate environmental document for the action proposed herein. The §21166 test is the prevailing authority under state law on the question of whether a new environmental document is necessary. This test is a substantive one to determine the document's continuing accuracy and utility. No substantial changes are proposed in the project, no substantial changes in the circumstances for implementation of the project and no new information that was not known at the time the EIR was certified has become available. Therefore, the EIR, as certified, remains adequate and complete. MacArthur Place South D ~~~~ EIR Addendum o 75B-49 MacArthur Place South Project Approvals The MacArthur Place South project required the following review and discretionary approvals as described in the EIR: • Certification of a Final Environmental Impact Report • Zone change to Specific Development (SD) zone • Site plan review • Lot line adjustment • Tentative/Final Tract Maps • Conditional Use Permit • Parking variance • Airport Land Use Commission consistency finding • Development Agreement • Federal Aviation Administration determination for construction cranes • Regional Water Quality Control Board approval for dewatering activities No change in the required approvals is proposed. This Addendum identifies the requirement for the future submittal to the Federal Aviation Administration (FAA) for an updated Determination of No Hazard for the Cinema Tower construction. However, no construction schedule for the Cinema Tower has been established as of the date of this Addendum. MacArthur Place South D ~~~~ EIR Addendum a 4 75B-50 Project Description The following project description is based on information in the MacArthur Place South Environmental Impact Report. Modifications to the project are included in this Addendum to update the project as proposed. A. Location MacArthur Place South is a partially developed residential and office park located in the City of Santa Ana, in the County of Orange, California, immediately west of the Costa Mesa Freeway (SR-55) and approximately three-quarters mile north of the San Diego Freeway (I-405). The City of Irvine is located south and east of the site. The City of Costa Mesa is located to the southwest. The John Wayne Airport is located approximately 1.1 miles south. A Regional Map and a Project Vicinity Map are included herein as Exhibit 1 and Exhibit 2, respectively. The project lies within the boundaries of MacArthur Boulevard, Main Street, Sandpointe Avenue, and the Costa Mesa Freeway. MacArthur Place and Hutton Center Drive bisect the site. MacArthur Place runs south from MacArthur Boulevard to Sandpointe Avenue, and Hutton Centre runs from Sandpointe Avenue around to MacArthur Place. Some maps identify the entire street as Hutton Centre Drive. The project site is approximately 10 acres and is surrounded by high-rise office buildings, a hotel, and parking structures. To the west, between Sunflower Avenue and MacArthur Boulevard, are the Sandpointe single-family neighborhood, the Main Attraction condominiums and an existing Mobil service station. North of MacArthur Boulevard along Main Street is an existing Arco service station and the California Apartments. Immediately north of the MacArthur Place South project is the MacArthur Place mixed use development. B. Background The MacArthur Place South EIR identified the project area as an existing office park formerly known as Hutton Centre. Since 1982, approximately 1,551,096 square feet of office, restaurant, theater, retail, and hotel land uses have been developed in Hutton Centre. The structures range from single- story buildings to office towers ranging in height from 8 to 14 stories. In 2001 the City approved a 162-room hotel and health club for Hutton Centre, which did not move forward. The entitlement for the hotel and the health club were relinquished to implement the MacArthur Place South project. The MacArthur Place South EIR included analysis of the following project components: • Three 25-story residential towers, with a total of 501 residential units • One low-rise loft building with 14 residential units and 10,000 square feet of office space • A condominium complex including three low-rise buildings, with a total of 276 residential units • A restaurant and retail building totaling 13,871 square feet MacArthur Place South D ~~~~ EIR Addendum a 5 75B-51 The entire MacArthur Place South project layout, as originally approved, is included herein as Exhibit 3 - 2005 Site Plan. A detailed layout of the Cinema Tower, the Cinema Lofts, and retail/restaurant portion of the original plan is shown in Exhibit 4 - 2005 Cinema Site Plan. Lake Towers The 25-story Lake Towers buildings, now known as Skyline at MacArthur Place, are situated along the west side of a man-made lake within the Hutton Centre complex. The North Tower includes 173 residential units, and the South Tower includes 174 residential units. The towers are approximately 257'6" in height, including parking facilities, mechanical equipment, and rooftop appurtenances. Two levels of subterranean parking and two levels of above ground parking are provided that include a total of 735 parking stalls. Residential unit types include one-bedroom plus den, two-bedroom, and two-bedroom plus den. A central amenity deck is provided between the towers and is accessible from the third floor of each tower. The amenity deck includes a lap pool, a lounge pool, a spa pool, a sundeck with private cabanas, a barbeque and picnic area, and an outdoor terrace. A water feature extends from the pool and bisects the amenity deck. A ladies' spa and fitness room are located in the north tower and a men's spa and lounge billiards/game room are in the south tower. Cinema Tower The Cinema Tower will be located west of Hutton Centre Drive. The approved tower will be 260' tall, including mechanical equipment and rooftop appurtenances, and will include 154 residential units. Parking will include one level of subterranean parking, which will be located under the entirety of the Cinema Tower, the Cinema Lofts, and the retail/restaurant portion of the site, with a total of 316 parking spaces. An additional 128 surface parking stalls will be provided surrounding the Cinema Tower, the Cinema Lofts, and the retail/restaurant components. Four residential unit types will be provided in the Cinema Tower including one-bedroom units, one-bedroom plus den units, two-bedroom units, and two-bedroom plus den units. Cinema Lofts The Cinema Lofts will be between 5 and 6 stories, with the highest point reaching 60 feet. The Cinema Lofts will contain 14 residential units and 10,000 square feet of office above the residential space and will include a spa on the third floor and a gym on the fourth floor. An amenity deck will be located on the third floor and will serve the residents of the Cinema Tower and the Cinema Lofts. A pedestrian bridge will connect the Cinema Tower to the Cinema Lofts and provide access to the amenity deck, which will include a pool and an outdoor terrace. Retai I/Restaurant The retail/restaurant component, situated along the northern project boundary, will include three retail spaces with a total of 5,291 square feet and two restaurant spaces with 8,580 square feet. Parking will be provided on the adjacent surface lot. MacArthur Place South D ~~~~ EIR Addendum 75B-52 LOS ANGELES r > COUNTY ' ~ Riverside ~, `SAN BERNARDINO COUNTY ~` ~` _~~ F{eeµaH V / ORANGE / S' ~ tO ~~ 3 a RIVERSIDE ~a ~ v° ` COUNTY ~ ~ Garden Grove Freeway LL ~ s ,` d9c s d ~'~ Pas Cd d, SANTA ANA te a ~ y ~ O , o~ ,P9o rya ~ o ~ _ _ A d~` _ c co MESA 6`a F~eew d d °or^"~ O R A N G E y S~ ~ V~ y FOREST Q'd COUNT Y w~ . A `Sdn 11 6 a 4~~ RANCHO SANTA '9 /~d NEWPORT Ov. ~ U E1 S' MISSION °~~ VIEJO ~ MARGARITA o ~~~ BEACH ` ~ yrrs ~ ~ 4 / o ~,(~ LAGUNI `` BEACH 2 LAGUNA .~ NIGUEL iy • ,~ • SAN JUAN tiff MAP NOT TO SCALE DANA \ POINT SAN CIEMENTE .~ SAN DIEGO COUNTY Exhibit 1 -Regional Map MacArthur Place South D ~~~~ EIR Addendum o 7 75B-53 lam' g ~ ~F 2 , ~e,P M ~ ~ ~ ~ ~ k g 3 ~ 1 W ~S B 3 E w 6ARR~ ¢ i r ~ 9 W ~~ ~ (n w ~ ~ ~ ~ ~`" ~ ~ PL 11RL1 W J Q ~ AY ~ i ucclE~~, Y Y ~ G ~ Z 300 ~ N > ~ 600 0 ~ ~ ~ a ~ ~ti AV KIMG AV '~~ AY INT oAQK sr a~ '° ~ AV 2 ~lQ' Qj '~~ o S ~~ ~~CU E ~' ~, V ~ NE AV del $ ~ ~~ ~ ~ tit M c W CURIE AV ~ `~' ~ BELL AV f- ti ~ viRSr i Ip~ ~, ~ B LV[I~ E ~I A ~yU ~' ,~ AV ,WIPER AY ~ AY 4 ; o CRtW _ ANA7F ~' ~ q` AV AU ~ atr AY AIMORA A y . • ~- ~ AV KELLER A ~a.~tas Gq'~LEA PfF ~ ~ aRu ~ a ~` NOBEL ~ ~ MorFC ~S oo R ~ S ^rO S7EVENS AV -. ~~ _~ ~' ~a ~ CCU, ~ '~Y ~„ 's S F W AV ~~~ ~ iiioo ylr ti 500 SEE C D5 ` ~ ~~' c ~ ~ j>a~ ~ t'S r scNENLEY BAr 2 KiT7ENDALE BAY ~ Y ' ITCH ~ _ ~ ~ ~ ~ 4 ~YAN BAY n s s* pp,RK C IR ~1.V0 A'~ 4 i , ~ i a ~ ~ y S KY ~C ~~ ~ ti PARK ~ 1 i~ ~ ,gam S Ac 11~ 8B ~ :~ g~ ~. / ti -- --- - - ~ ` m ~Ia f? N Sj. m '` ~, ~t I7 5 ~ Fc lyF ~ S~ ~~ / ~ ~ g1RP p~'~ QJ~ 3 ~~ : JOHN WAY E ,~ P ~ ~ AIRPORT xoo ~ N ~, A~ ~ q ~ ! ,, o ~ f A,~ 11 ~taPmwc r. Q C ~ ~~. CACCf m2004 Thtxnaa Bro s. Maps Exhibit 2 -Project Vicinity Map MacArthur Place South D ~~~~ EIR Addendum 75B-54 ~® ~ ~\ nn _ ~~ . _, -. ; _. - , _ .. _ ;.~ ~ - C.; ._ .II I I; ~~ ~ . ~'~. J I I I -, -~ ,i~ ~ - • c ~ - - - - ~. Y -- '.`! _ - ~ Jai/ ~ -I I~ n> ~~~ - ,\ \\ \\ /~~~ i ~I ~' ~' ~ ~ p 1 ;rr~ ` ~b ~~ + ~ ~~ :, ~ ~~ ' ~.. _ ~ ~ =~_ s ~, ~ t~ ~ -~ ~ ~ .~ ~~ *;111~ I~ *~ z °` ~ III fi ~ ~~ n ~ ooo'. a ~~ - ~~I II II I~ L g r , ~~ '° i4 E ~, t 1 ~- 11 a _ I °1 i ~ i I~1 ~ <d ~ ~ I j ,1 - I ~ Y 1 ~ =I IIII II II I IIII I - - I' f~ I I -- _ 333 @ I II II :Il I ~ - _ I IIII I n - - 1111111 IIIIIiII I ~~ _ ~ ~ ~ ~ ~ 1 ~ ~I H _~ ~„ I ~ ~ - ~ ~ ~ II - I IIIIIIIIIIIIIIIIII (~ ~ ~ - ~ l ~ ~I~,~ II ___ _ ~ -~- 111'Illll -= _ i- ~ ~ ~ ~ I T ~~ II', 7~ = 1 ~>!- ~ - I ;. ~ i ~/, - '- h~ ,r i ~ ~_ _ i- =i --11 !I I'tlIl Ill I "Ill 11 11 'll ~'-~ ,_ - . 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'J J'! ~ ~• ... - - C ro a a~ N !0 N C U O O N .~ L W 0 0 ~ ~ da c ~ ax Q ~~ m ~ ~ W 75B-56 Low-Rise Condominiums The condominium portion of the project, known as the Montage ("Project"), as approved, called for the development of three separate buildings, ranging in height from 50 to 60 feet (five and six stories), containing 276 residential units. Vehicle access is provided via aright-in/right-out driveway on MacArthur Boulevard and from Sandpointe Avenue to an internal roadway. Eight residential unit types are proposed ranging from one to three bedrooms and baths. The residential styles include typical single-story condominiums, townhouses, and "live/work" units. An interior courtyard will contain a water feature and a recreation area including a tot lot, a swimming pool, a game table, a BBQ area, and a seating area. A total of 689 parking stalls will be provided on two levels of parking - one subterranean level and one above ground. The buildings will be separated by a landscaped promenade along interior-facing patios and balconies. The architectural design provides a staggered roofline, with portions extending to six stories in height. This design will provide a visual relief from that of a solid structure with a single roofline. C. Description of Proposed Project The project applicant is proposing the removal of the Cinema Lofts and the retail/restaurant components and the addition of a 185-room hotel and surface parking. The table below shows the project components that will be removed and added. It is important to note that the Final EIR analyzed 501 high-rise residential units and 14 lofts. However, the City of Santa Ana approved a configuration including 499 high-rise residential units and 15 lofts. Each of the project components, as approved by the City of Santa Ana, is discussed in more detail below. Exhibit 5 -Proposed Site Plan depicts the revised MacArthur Place South site plan. To be removed To be added Cinema Lofts (15 units and 10,000 square feet of office use) 185-room hotel Restaurant (8,580 square feet) Retail (5,291 square feet) Lake Towers The residential towers have been constructed, with a total of 349 units. The owner of the Lake Towers has submitted a proposal to the City of Santa Ana to allow for-rent units while maintaining the amenities originally approved. Traffic impacts resulting from condominium to for-rent units are analyzed herein in order to provide aworst-case analysis. The proposal to allow for-rent units has been approved by the City of Santa Ana Planning Commission, but has not been considered by the City Council at the time of this writing. No other modifications to this component of the project are proposed. Cinema Tower The Cinema Tower will be relocated south approximately 174 feet from the location analyzed in the project Final EIR. The Cinema Tower will remain west of Hutton Center Drive, across from the North Lake Tower, and 150 units are planned. Parking for the Cinema Tower will be accommodated in a future parking structure that will be located where a temporary surface parking lot is currently proposed. The surface parking lot will also be used as parking for the proposed hotel in the interim. MacArthur Place South D ~~~~ EtR Addendum o 15 75B-57 Cinema Lofts The 15 Cinema Lofts will be eliminated from the project. The lofts included resident-serving amenities such as a spa, a gym, and an amenity deck that included a pool and an outdoor terrace. Similar amenities will be provided in the Cinema Tower. Retail/Restaurant The retaiUrestaurant component analyzed in the EIR included three retail spaces with 5,291 square feet and two restaurant spaces with 8,580 square feet for a total of 13, 871 square feet. Parking would be provided on the surface lot. The retail/restaurant component will be eliminated to be replaced with the addition of the Marriott hotel. Low-Rise Condominiums The owner of the low-rise condominiums site has submitted a proposal to the City of Santa Ana to change the low-rise condominiums as analyzed in the MacArthur Place EIR to for-rent residential units while maintaining the amenities originally approved. Traffic impacts resulting from condominium to for-rent unit uses are analyzed herein in order to provide aworst-case analysis. The proposal to alter the land use has not been approved by the City at the time of this writing. No other modifications to this component of the project are proposed. Hotel The proposed hotel will be constructed where the retail and restaurant uses and the Cinema Tower were previously located. The 4-story hotel will have 185 rooms with approximately 100,097 square feet. Amenities will include a pool and a spa. A plan showing the hotel, the parking lot, and the existing parking structure is included as Exhibit 6 -Proposed Cinema Site Plan. A plan showing the ground floor plan for the new hotel is included herein as Exhibit 7 -Ground Floor Plan. Development will occur in one phase with the entire 185-room hotel being constructed at the same time. A total of 615 parking spaces will be provided, which will be comprised of a combination of spaces in the existing parking structure and surface parking lot. Specifically, the parking will include 133 dedicated surface parking spaces, 25 dedicated spaces from the existing office parking structure, and 475 spaces from the office parking structure available in the evening. When the Cinema Tower is constructed, a new parking structure will be built to meet the parking needs of the hotel and the Cinema Tower. MacArthur Place South D ~~~~ EIR Addendum ~ 16 75B-58 c 3, iF it iE =e : iE ~ ~~ f. ~~ !i ~ ~ r :i !i ~f E E ~,`, f i3 9 ~ ~p ~~ ~E i 9, ~ E ~ 3 ~i ~ ~ p$ ~ ~ ~ $ ~p ~t r ~tp i $ $~ If $~ ~; ~~ i! ~~ ! t~ fi ~i f: iE ~~ f $ 11 if ,. C t0 a d N W to O a 0 a LX W r _~~ ~~r ~~ ~~ t ~! 0 ~~ ~.~ ~~ ~~ ~~ ~a ~~ ~w 75B-59 ~ ~ i~~¢ ~g ~ ~~p o ~ P N~ ~ ~ ~ ~ ~ € ~ a ~~~ i ~~ p q ~ ~ ~ wa8} ~~ ~ ~le~°~~ aai ~~ ~' y0a a ~ e ~ ¢ ~~ O c q S~q ~~ ~~ 6~ C~ i° e;~ s ~p ~ "~ -. t p p c O ~pCa~~€su~na ~i~ai.~~€~i~94~wr~~~e..~Fl~@~Nvl~rrr! ~~~ V .. ~, oooa~o o - o ®n r~~~~~u~v~mmr~cancaanwm~c - _- -- _ _ ~. _.._ _.. _. I ._ ~ , I ~~„ oo' 4 . =9 ~ ~~_ ~~ ~ ~=s --- - ~ m 4~ B ~ I'f of4 ,~~~ ~o, ~~ ~'~ ~ j ~~ ~ ~'~ y ~, .. 0 ~ ~ f r~`J`~• ~ ~ ::, , ~ ~u Oar 1~-'t`-k-~"-~~ d b~~ r ... ~ ~. ~S ~~nb ~ ~• ~ ~ y ~i i • ~/ 1~ I~ ins ~ / ni 4 4~ ~ i t . ,~, ~ { ~ ~ ~'_ ~~ ~~~, ~~ I !~ k ~ ~ ~ _v.c' 3g ..~.~ ky_~ ~ ow ~~ 'JE ~f ., 1 j' l Q ~ l ~ 1 1 -~ - ~f OE- ~ 4E i ~ F i ir_:~ _, 1 1 ~ ~ _ ~ Z.Ia! ~~~ -. __ _.. .. ____ ~ ___ _ . _- 1 ...., i W~ ZN. W M . c ~, A a d .~ N RS E a, c u a~ N 0 a 0 a .o t W ~~ UV 0 0 O a ~o ._ c 7 d ro Q A~ ~ W 75B-60 © t, O 'T n Qi~-- - --,- - O .f i U ~ ~ ~< P O i ~~ _~' ~_- o ~ ~ ~ r ©~ t ~ ~ ~~. P O ~ ~ ~- o - -- o , ~'~~ -- o;. o ' ,> o i -. o':. } a ®O ~'`b O I O O O O . ,© '', +' ~~ o • ~o ~i va' ~ ~ pga ~ ~ ~ t ~ ~ b ~ wl, ~ ~ ~ ~ ~, e JII I ~a ~~~~~ z W n W y Fq 2 R~~ m $ &~xO re pn ~ ~ ~- ~;• a ~ a~~~~~~€~ 0 a ~ t, u^ ~t Z. ea O<~ W: v_<9_~c O®®O IO O® O O I O O 0 0 k.a, ti-S ice' µ t ~~ ,i », .~' il~' tea- M .y r-,..._ ~ O . 4 ~ t 1 Y Y Y~i V ~ 1 t ~ '~. . ~ 6. I tr` !~ ~~ I ~ ~~ ~ ~~ 4 .. ~ ~ I ~.~$9~. y~.n ! 5 5 tl r ~ r.~y I O: I ~~ , ~~ ~ _- ~ _ ~ - b '~ ~ c~~,. ;. ~ ~i ~ -c~,t>~,~} ~ I ~~ -. _' _11i' ~ ~ ~ __ _ _. ®M o a ~~ ,~~ _I I ~ i _ ~ tlo' l ~° r g , ~~ ~~ i ;~ ~ " ~~ Ll a I .~ S a Icy ~~ -a I t I ~~ 1'~ C a 0 0 v c 0 L W N 0 0 W 3 av c ~ d Q ~~ W~ ~w 75B-61 D. Approvals Contemplated The Addendum will require approval by the City of Santa Ana Planning Commission and the City Council. In taking action on the Addendum the City, as Lead Agency, must consider the whole of the data presented in the MacArthur Place South Final EIR and this Addendum to the EIR. The proposed hotel will undergo site plan review and will require a limited ABC license for a beer and wine bar and special event activities. Future Requirement for Determination of No Hazard The relocation of the previously approved Cinema Tower will require a new request to the Federal Aviation Administration (FAA) for a determination of No Hazard to Air Navigation. A Determination of No Hazard is issued by the FAA if it is determined that the proposed project does not have a substantial physical or electromagnetic interference effect upon navigable airspace or air navigation facilities. The original FAA Determination was issued on September 1, 2004 and expired on March 1, 2006. The Determination was based on a building location (33° 41' 55.807" latitude; 117° 51' 57.727" longitude) in approximately the same footprint as now proposed. Subsequent to the first Determination, the project proponent relocated the building 174' to the north (33° 41' 57.496" latitude; 117° 51' 57.701" longitude) and applied for a No Hazard Determination based on that location. In May 2005, the FAA issued four Determinations of No Hazard for the four corners of the relocated building. The Determinations expired on November 8, 2006. A new request will be submitted to the FAA once a construction schedule has been established for the Cinema Tower. On February 17, 2005 the Airport Land Use Commission (ALUC) chose to treat the absence of the Determination of No Hazard as an impairment of their review and voted that the project was not consistent with AELUP. At a June 16, 2005 meeting, the ALUC staff requested and the Commission agreed to find the project conditionally consistent with the AELUP and incorporated the new FAA Determinations into its decision. In June 2005, when the EIR was certified, the City of Santa Ana was inconsistent with respect to the AELUP for John Wayne Airport. On December 18, 2008, the ALUC approved the City's General Plan Airport Environs Element and deemed the City consistent. MacArthur Place South D ~~~~ EIR Addendum 23 75B-62 Environmental Analysis For Projects with Previously Certified/Approved Environmental Documents Final Environmental Impact Report MacArthur Place South SCN 2004061140 The following analysis takes into consideration the preparation of an environmental document prepared at an earlier stage of the project and describes the modifications to the proposed project from what was analyzed in the EIR. This analysis evaluates the adequacy of the earlier document pursuant to § 15162 of the California Environmental Quality Act (CEQA) Guidelines. The Environmental Checklist is included following this analysis. Analysis of the facts related to the project will form the basis for the City of Santa Ana to determine whether any changes in the project, any changes in circumstances or any new information since the MacArthur Place EIR was certified require additional environmental review or preparation of a subsequent or supplemental EIR. I. Aesthetics The EIR determined that implementation of the project would introduce additional light and glare impacts to the project area. Mitigation measures were incorporated to reduce potential impacts to a less than significant level. Would the project: a) Have a substantial adverse effect on a scenic vista? (No Substantial Change from Previous Analysis) A complete evaluation of the aesthetics effects of the project was considered in the MacArthur Place South Final Environmental Impact Report ("EIR"). Neither the project site nor the surrounding area is considered a scenic vista. The retail/restaurant uses previously approved will be replaced by a four-story (55 feet tall) 185-room hotel fronting MacArthur Boulevard. The articulation and elevation of the hotel building are shown in Exhibit 8 -North and South Hotel Elevations and Exhibit 9 -East and West Hotel Elevations. While this is an increase in height from the retail/restaurant use, the adjacent development, both on site and across Main and MacArthur Boulevard, includes high- rise development. As a result, no significant impacts related to scenic vistas will occur. The 5- to 6-story (60 foot high) Cinema Lofts were a part of the project analyzed in the EIR. These lofts are no longer a part of the project. The Cinema Tower will be re-located from its previous location, adjacent to the retaiUrestaurant component, south to its new location, where the Cinema Lofts were planned. This southerly shift in location places the Cinema Tower south of MacArthur Boulevard by approximately 174 feet from the previously approved location. The changes as a result of the City's action on this project are not more significant than what was identified in the EIR. MacArthur Place South D ~~~~ EIR Addendum ° 25 75B-63 b) Substantially damage scenic resources, including, but not limited to, trees, rock outcroppings and historic buildings within a state scenic highway? (No Substantial Change from Previous Analysis) A complete evaluation of the aesthetics effects of the project was considered in the EIR. There are no scenic resources, thus the project will have no impact regarding scenic resources. c) Substantially degrade the existing visual character or quality of the site and its surroundings? (No Substantial Change from Previous Analysis) As depicted in the EIR, parking areas and pedestrian walkways will contain attractive landscaping treatments to enhance the open space areas. Trees and shrubbery will be used around the perimeter of the hotel, providing a softening of visual impacts at street level. Palm trees, Jacaranda and Pine trees will be planted along the perimeter of the hotel with palm trees planted at the front of the hotel. A number of trellises will be incorporated into the hotel along the south, east and west sides. The trellises will include landscaping with vines or floral vines for decorative purposes. The Jacaranda and Pine trees will serve as a buffer for the hotel along MacArthur Boulevard and along the east and west sides of the hotel. An updated landscape plan is included as Exhibit 10. The project incorporates landscaping around the hotel and adjacent to the Cinema Tower location. The proposed four-story hotel is compatible with the adjacent land uses. The North and South Lake Towers are 25 stories tall, the office buildings range in height from the 8 story buildings at 200 and 201 East Sandpointe Avenue to a 14 story building at 5 Hutton Centre Drive. There is also asix-story Doubletree Hotel south of the Lake Towers. The proposed addition of the hotel and deletion of the Cinema Lofts and retail/commercial square footage does change the visual character of the site beyond what was analyzed in the EIR. However, no significant changes to the existing visual character of the site will result from the project beyond those identified in the EIR because the proposed four-story hotel is consistent with the surrounding land uses. d) Create a new source of substantial light or glare that would adversely affect day or nighttime views in the area? (No Substantial Change from Previous Analysis) The exterior of the hotel will predominantly be covered by a stucco finish. Due to the developed nature of the project site and the existence of a hotel just north of MacArthur Boulevard, the proposed hotel is compatible with existing uses and is not expected to substantially increase light or glare. The following Mitigation Measure is proposed to reduce any potential impacts from light and glare: Mitigation Measure AE-1- Prior to issuance of building permits the project applicant shall ensure that building plans for the proposed project shall include the use of non- reflective building materials to minimize light and glare impacts. Implementation of Mitigation Measure AE-1 will reduce light and glare and will ensure that development of the project will have no more severe impacts beyond those addressed and mitigated in the EIR. MacArthur Place South D ~~~~ EIR Addendum a 26 75B-64 r. ~~?, ; O r O ~ - - ,. ..a _ p 31 ~~~ ! ~ - - - '~ .._ ~ ~ ~OOO ~ ~ ~., i ~~ r~ ` _ _S 0 l ~'' ~ ~ _ . 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[~/ ~ _. -Y 3 j i ~ ro~ a~~~ ,. P` f ~ ~ i M r' SS ,,-,~ , ~ ~ ~- ,, e ~ , ~ ~ ~ ~~ ~4 ~°~ P.. ~ ~~ rx F 1 ~ ~ ."'~ r. A~ w 3 t, t~ x ~ `'_~ ; q ~_~, ~ is ~` ~~ ~ - .. ~,~ ~ ,_ ,: ..r .- _. _, .. J ~ -1 ~ ~ ~ ~ - ~.. t f_. ~n ss-~U1-L_ w+a Y 3 r. ~: C.~-t Y~"*, dry, 33. ~ ,:.y ~ '~ ~ ~ f1- ~ ~ R .._ -__... _.__.__. ~1 1 Tel l W3 k X t~~p ~ - f. 'mss-.. '_ a;^ - ,.. ~_, ~ i ' R~~'~~y~"~~~~'~.~' C ~0 i~ a v a ~o u v C ~o J .n Z x w L O N d " E 4. v' ~ C ~ d t a Q A~ ~ W 75B-67 II. Air Quality The Air Quality analysis in the EIR was based on CEQA Guidelines thresholds. Short-term construction activity impacts exceeded significance thresholds for ROG due to the application of architectural coatings. Mitigation measures were included to minimize these unavoidable adverse impacts. The EIR analysis determined that project-related operational emissions will exceed the South Coast Air Quality Management District (SCAQMD) significance thresholds for CO, ROG and NOx primarily due to area source (consumer product) emissions. Mitigation measures were proposed to minimize the long-term unavoidable adverse impacts. Cumulative air quality impacts from the MacArthur Place South project were analyzed in the EIR and were determined to be significant and adverse when added to the existing non-attainment levels of the South Coast Air Basin. A statement of overriding considerations was adopted. Since the certification of the EIR, the state legislature passed AB 32 known as the Global Warming Solutions Act. This Addendum provides informa- tion related to greenhouse gas emissions impacts. An updated Trip Generation Evaluation (Traffic Evaluation), dated April 1, 2009, was prepared by Urban Crossroads. This evaluation is included herein as Appendix A. For purposes of air quality impacts, the Traffic Evaluation concludes that the elimination of the identified project components, the addition of the hotel and the conversion of the Lake Towers and low-rise Montage condominiums to apartment uses will result in a total of 83 fewer trips in the AM peak hour, 105 trips in the PM peak hour and 758 fewer trips on a daily basis. The revised project will result in less air quality impacts due to traffic emissions than the project approved in the EIR. a) Would the project conflict with or obstruct implementation of the applicable air quality plan? (No Substantial Change from Previous Analysis) Since the certification of the EIR, additional legislation requires the analysis of potential greenhouse gas (GHG) impacts due to development. State of California Assembly Bill 32 (AB 32), known as the Global Warming Solutions Act, was passed in August 2006. AB 32 requires that levels of GHG be reduced to 1990 levels by the year 2020. There are currently no federal regulations on the reduction of GHG to reduce their effects on global climate changes. Senate Bill 97 (SB 97) requires that the Governor's Office of Planning and Research develop guidelines for CEQA compliance related to GHG emissions, including mitigation measures for the reduction of GHG. The guidelines are required to be prepared on or before July 1, 2009. Global climate change in the weather of the earth can be measured by wind patterns, storms, precipita- tion and temperature. Climatic factors are divided between those caused primarily by human activity (such as greenhouse gas emissions and aerosol emissions) and those caused by natural forces (such as solar irradiance). A primary cause of greenhouse gas emissions is the burning of fossil fuels. There is currently no single model that is capable of estimating all of a project's direct and indirect GHG emissions.' The California Air Pollution Control Officers Association whitepaper notes that one of the most consistently used models for emissions estimates is the Urban Emissions Model (URBEMIS).z The URBEMIS model was used in the EIR to assess emissions for the project. URBEMIS is designed to model emissions associated with development of urban land uses. URBEMIS attempts to summarize criteria air pollutants and COz emissions that would occur during construction and operation of new development. This model was developed and approved by the California Air California Air Pollution Control Officers Association, CEQA & Climate Change (Evaluating and Addressing Greenhouse Gas Emissions from Projects Subject to the California Environmental Quality Act), January 2008. z Ibid. MacArthur Place South ~ ~~~~ EIR Addendum © 33 75B-68 Resources Board (GARB) and ensures statewide consistency in how COz emissions are modeled and reported from various project types. The URBEMIS model is the most effective tool for assessing COZ greenhouse gas emissions available to date. The EIR identified air quality impacts that would result from project implementation, both short-term construction and long-term operational. As detailed in the EIR, project-related operational emissions will exceed the SCAQMD significance thresholds for CO, ROG, and NOx primarily due to area source (consumer product) emissions. These are considered an unavoidable adverse impact. Additionally, construction activity impacts will exceed significance thresholds for ROG due to application of architectural coatings. The removal of the Cinema Lofts and the retail/restaurant uses, and addition of the hotel is not anticipated to either greatly alleviate or greatly increase project impacts from what was analyzed in the EIR. Thus, the project's impacts on air quality are anticipated to remain the same as the original project's impacts, which on a cumulative basis are significant and adverse. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. b) Would the project violate any air quality standard or contribute substantially to an existing or projected air quality violation? (No Substantial Change from Previous Analysis) The Air Quality Assessment in the EIR included projected COZ emissions for demolition, mass grading, fine grading, trenching, building construction, architectural coatings, and asphalt emissions. Construction and operational emissions are difficult to assess, given that no thresholds for greenhouse gases have been established. Typical thresholds are based on types of use, such as residential, office, or retail, and are further defined by such things as number of units and square footage. The project will include a construction phase during which heavy equipment will be used for demolition, grading, and construction. The construction schedule for the lofts, retail and restaurant portion of the previous project was 14 months for complete build out, and the construction schedule for the proposed project is anticipated to be the same. Short-term impacts in the area of greenhouse gases will be due to the use of heavy equipment. Short-term construction related impacts were limited to ROG emissions from architectural coatings. As detailed in the EIR, ROG emissions still exceed threshold levels even with the use of all available measures if all project paints and coating were applied in a single month. Thus, air quality impacts from construction of the proposed project will not change substantially from the previous analysis. As noted, in the EIR, the MacArthur Place South project will exceed thresholds for CO, ROG, and NOx in the long-term operational use. Long-term project-related impacts include exceeding the South Coast Air Quality Management District (SCAQMD) significance thresholds for CO, ROG, and NOx primarily due to area source (consumer product) emissions. The addition of the 185-room hotel will result in an increase in CO due to consumer product emissions by the hotel guests. The proposed reduction in unit size (removal of 15 units because the Cinema Lofts will not be built) could result in lower population estimates, which could reduce consumer use emissions. The EIR includes mitigation measures to reduce and minimize air quality impacts. The following Mitigation Measure is proposed in order to further minimize the incremental increase from greenhouse gases during construction of the hotel: Mitigation Measure AO-1 -During design and construction, the project developer shall incorporate features into the project that will minimize impacts from greenhouse gas emissions such as planting onsite trees as a means of providing carbon storage, promoting energy saving measures beyond Title 24 requirements, and encouraging the use of Energy Star equipment and appliances. MacArthur Place South ~ ~~~~ EIR Addendum o 34 75B-69 Implementation of Mitigation Measure AQ-1 will result in fewer operational emissions, resulting in no substantial change from the previous analysis in the area of greenhouse gases. c) Would the project result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air quality standard Including releasing emissions which exceed quantitative thresholds for ozone precursors? (No Substantial Change from Previous Analysis) The EIR identified cumulatively significant air quality impacts that would result from project implementation. The retail/restaurant component of project will be replaced by the 185-room hotel and the Cinema Lofts will no longer be built. In addition, revised total daily traffic estimates result in 758 fewer trips than the originally approved project, reducing air quality impacts due to traffic. Although changes to the project are proposed, no new or significant impacts will occur. Therefore, the EIR remains adequate and complete for this topic. d) Would the project expose sensitive receptors to substantial pollutant concentrations? (No Substantial Change from Previous Analysis) The EIR identified air quality impacts related to sensitive receptors with project implementation. No changes have occurred in this area from the analysis provided. Therefore, the EIR remains adequate and complete for this topic. e) Would the project create objectionable odors affecting a substantial number of people? (No Substantial Change from Previous Analysis) The EIR identified air quality impacts that would result from project implementation. The project involves the addition of a four-story hotel and removal of the Cinema Lofts and the retaiUrestaurant uses. If the hotel includes a restaurant, impacts would be substantially the same as the restaurant previously analyzed and now removed. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. III. Geology and Soils The EIR noted that the proposed project could be subject to potentially significant adverse geologic impacts. Mitigation measures were included to reduce impacts to a less than significant level. Would the project: a) Expose people or structures to potential substantial adverse effects, including the risk of loss, injury or death involving: i) Rupture of a known earthquake fault, as delineated on the most recent Alquist-Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial evidence of known fault? Refer to Division of Mines and Geology Special Publication 42 (No Substantial Change from Previous Analysis) The EIR included mitigation measures designed to minimize impacts due to the settlement potential and high moisture content of the soils. The proposed hotel will replace the retaiUrestaurant component of the project. The Cinema Lofts will be eliminated and the Cinema Tower will eventually be relocated south of the hotel. The hotel will have no different geological impacts from what was analyzed in the EIR. No changes have occurred in this area from the analysis provided in the EIR. The development of the project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. MacArthur Place South ~ ~~~~ EIR Addendum o 35 75B-70 ii) Strong seismic ground shaking? (No Substantial Change from Previous Analysis) The EIR included mitigation measures designed to minimize impacts due to strong seismic ground shaking. No changes have occurred in this area from the analysis provided in the EIR. The development of the project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. iii) Seismic-related ground failure, including liquefaction? (No Substantial Change from Previous Analysis) The EIR included mitigation measures designed to minimize impacts due to seismic-related ground failure. No changes have occurred in this area from the analysis provided in the EIR. The development of the project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. iv) Landslides? (No Substantial Change from Previous Analysis) The EIR included mitigation measures designed to minimize impacts due to landslides. No changes have occurred in this area from the analysis provided in the EIR. The development of the project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. b) Result in substantial soil erosion or the loss of topsoil? (No Substantial Change from Previous Analysis) The EIR included mitigation measures designed to minimize impacts due to soil erosion or loss of topsoil. The following Mitigation Measure is from the EIR and will reduce erosion. Mitigation Measure G-1 -During grading operations, the project applicant shall ensure special handling of on-site soils as required by the City of Santa Ana due to the high moisture content of the soils, which is well above optimum moisture conditions. The City of Santa Ana shall monitor the grading contractor to ensure stabilization of the soils during grading prior to placing and compacting fill soils over wet subgrade soils, as recommended in the geotechnical investigation prepared by Geotechnical Professionals, Inc. Implementation of mitigation measures in the EIR will reduce project impacts relating to erosion to a less than significant level. Thus, development of the project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. c) Be located on geologic unit or soil that is unstable or that would become unstable as a result of the project and potentially result in onsite or offsite landslide, lateral spreading, subsidence, liquefaction or collapse? (No Substantial Change from Previous Analysis) The EIR included mitigation measures designed to minimize impacts due to unstable soil. No changes have occurred in this area from the analysis provided in the EIR. The development of the project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. d) Be located on expansive soil as defined in Table 18-1-B of the Uniform Building Code (1994) creating substantial risks to life or property? (No Substantial Change from Previous Analysis) The EIR included mitigation measures designed to minimize impacts relating to expansive soil. No changes have occurred in this area from the analysis provided in the EIR. The development of the project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. MacArthur Place South ~ ~~~~ EIR Addendum © 36 75B-71 e) Have soils incapable of adequately supporting the use of septic tanks or alternative water disposal systems where sewers are not available for the disposal of water? (No Substantial Change from Previous Analysis) The EIR included mitigation measures designed to minimize impacts relating to geology and soils. The project will not include the use of septic systems or alternative water disposal systems. No changes have occurred in this area from the analysis provided in the EIR. The development of the project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. IV. Hazards and Hazardous Materials The EIR noted that the proposed project could be subject to potentially significant adverse hazards and hazardous materials impacts. Mitigation measures included in the EIR would reduce potential impacts to a level that would be less than significant. Would the project: a) Create a significant hazard to the public or the environment through the routine transport, use or disposal of hazardous materials? (No Substantial Change from Previous Analysis) A Phase I Preliminary Environmental Site Assessment and a Phase II Screening Subsurface Assess- ment were performed and discussed in the EIR. No changes have occurred in this area from that analysis. Therefore, the EIR as certified will remain adequate and complete for this topic. b) Create a significant hazard to the public or the environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment? (No Substantial Change from Previous Analysis) Neither the construction nor the operation of the proposed project will involve hazardous materials that might unwittingly be released into the environment. Therefore, there will be no impact due to the accidental release of such materials. The EIR as certified will remain adequate and complete for this topic. c) Emit hazardous emissions or handle hazardous or acutely hazardous materials, substances, or waste within one-quarter mile of an existing or proposed school? (No Substantial Change from Previous Analysis) The project involves the construction of a 185-room hotel, and no hazardous or acutely hazardous materials, substances, or waste will be emitted by the normal operation of the project. No changes have occurred in this area from the analysis provided in the EIR. The development of the project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. d) Be located on a site that is included on a list of hazardous materials sites compiled pursuant to Government Code Section 65962.5 and, as a result, would it create a significant hazard to the public or the environment? (No Substantial Change from Previous Analysis) The proposed site is not included on a list of hazardous materials sites and would not create a significant hazard to the public or the environment. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. MacArthur Place South ~ ~~~~ EIR Addendum o 37 75B-72 e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? (No Substantial Change from Previous Analysis) The nearest public use airport, John Wayne Airport, is approximately 1.1 miles from the site. The FAA previously issued two Determinations of No Hazard for two different locations of the Cinema Tower. As described in the Introduction, Section C, both Determinations have expired. The proposed relocation of the Cinema Tower will require a new aeronautical study by the FAA at a future time when the Cinema Tower is scheduled for construction. Mitigation Measure H-1 -Prior to the issuance of a building permit, the project developer shall provide evidence to the Planning Manager that an FAA Determination of No Hazard to Air Navigation has been obtained for the relocated Cinema Tower. The project developer shall demonstrate compliance with any conditions imposed by the FAA in their Determination. Implementation of the above mitigation measure will ensure that no new or more severe impacts beyond those addressed and mitigated in the EIR will occur. Therefore, the EIR remains complete and adequate as it relates to hazards. f) For a project within the vicinity of a private airstrip, would the project result in a safety hazard for people residing or working in the project area? (No Substantial Change from Previous Analysis) The project is not located within the vicinity of a private airstrip and, therefore, would not expose people residing or working in the project area to a safety hazard. g) Impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan? (No Substantial Change from Previous Analysis) The construction of the proposed project will not produce any physical constraints or impair an adopted emergency response plan or an emergency evacuation plan. Standard conditions have been imposed regarding provision of fire access roads and fire lane markings as well as project review by the Fire Authority. As analyzed in the EIR, there will be no impact related to impairment of emergency response plans or emergency evacuation plans. h) Expose people or structures to a significant risk of loss, injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? (No Substantial Change from Previous Analysis) The EIR identified potential impacts in the area of hazards and hazardous materials that would result from project implementation. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. V. Hydrology and Water Quality Hydrology and water quality impacts due to short-term construction activities and long-term operation were identified in the EIR. Mitigation measures were included to reduce potential impacts to less than significant. Mitigation measures from the EIR are incorporated herein by reference and include HW-1 thru HW-11, which, per the EIR, reduced project impacts to a less than significant level. These mitigation measures will be implemented as part of the project and will reduce short-term construction and long-term operational impacts to a less than significant level. MacArthur Place South ~ ~~~~ EIR Addendum o 38 75B-73 a) Would the project violate any water quality standards or waste discharge requirements? (No Substantial Change from Previous Analysis) A Preliminary Hydrology Study of Existing and Proposed Conditions and a Water Quality Manage- ment Plan were prepared for the MacArthur Place South project. The EIR identified impacts to hydrology and water quality that would result from project implementation. Recommendations from the technical studies for hydrology and water quality will continue to be observed. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. b) Would the project substantially deplete groundwater supplies or interfere substantially with groundwater recharge? (No Substantial Change from Previous Analysis) No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. c) Would the project substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, in a manner which would result in substantial erosion or siltation on or off site? (No Substantial Change from Previous Analysis) The EIR identified impacts to the existing and proposed drainage for the proposed project and described the requirements to mitigate impacts to hydrology and water quality. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. d) Would the project substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner which would result in flooding on- or off-site? (No Substantial Change from Previous Analysis) The EIR identified impacts to hydrology and water quality that would result from project implementa- tion. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. e) Would the project create or contribute runoff water which would exceed the capacity of existing or planned stormwater drainage systems or provide substantial additional sources of polluted runoff? (No Substantial Change from Previous Analysis) The EIR identified impacts due to runoff that would result from project implementation. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. f) Would the project otherwise substantially degrade water quality? (No Substantial Change from Previous Analysis) The EIR addressed potential impacts to water quality and included mitigation measures to reduce impacts. Mitigation Measures HW-1 through HW-11 included in the EIR are incorporated herein by reference and will be implemented to reduce impacts. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. ~ Would the project place housing within a 100 year flood hazard area as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map? (No Substantial Change from Previous Analysis) The EIR identified impacts to hydrology and water quality that would result from project implementa- tion. The project is not located in a 100-year flood hazard area. No changes have occurred in this area MacArthur Place South ~ ~~~~ EIR Addendum o 39 75B-74 from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. h) Would the project place within a 100-year flood hazard area structures that would impede or redirect flood flows? (No Substantial Change from Previous Analysis) The EIR identified impacts related to flood hazards that would result from project implementation. The project is not located in a 100-year flood hazard area. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. i) Would the project expose people or structures to a significant risk of loss, injury or death involving flooding, including flooding as a result of the failure of a levee or dam? (No Substantial Change from Previous Analysis) The EIR identified impacts related to flooding that would result from project implementation. The project is not located in the vicinity of a levee or a dam. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. j) Inundation by seiche, tsunami or mudflow? (No Substantial Change from Previous Analysis) The EIR identified impacts related to inundation by seiche, tsunami, or mudflow that would result from project implementation. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. VI. Land Use and Planning Would the project: a) Physically divide an established community? (No Substantial Change from Previous Analysis) The project site is comprised of an office park and as a result, no established community exists. Thus, the project will not physically divide an established community. Therefore, the EIR remains adequate and complete for this topic. b) Conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited to, the general plan, specific plan, local coastal program, or zoning ordinance adopted for the purpose of avoiding or mitigating an environmental effect? (No Substantial Change from Previous Analysis) The City's General Plan land use designation for the project site is District Center (DC), which specifically allows mixed-use development. Hotels are a permitted use in the DC designation. As detailed in the EIR, the project site underwent a zone change from General Commercial (C2) to the Specific Development (SD) zone. The project, as proposed, will have no new or more severe impacts beyond those addressed in the EIR. Therefore, the EIR remains adequate and complete. c) Conflict with any applicable habitat conservation plan or natural community conservation plan? (No Substantial Change from Previous Analysis) No habitat conservation or natural community conservation plan is applicable to the proposed project. The project will have no new or more severe impacts beyond those addressed in the EIR. Therefore, the EIR remains adequate and complete with respect to this topic. MacArthur Place South ~ ~~~~ EIR Addendum o 40 75B-75 VII. Noise As detailed in the EIR, construction operations would increase existing noise levels for the short term, and residential land uses would be subject to significant adverse long-term noise impacts. Mitigation measures were included in the EIR to reduce noise impacts to a less than significant level. Would the project result in: a) Exposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies? (No Substantial Change from Previous Analysis) The EIR identified short-term noise impacts from on-site demolition and construction activities. The primary source of construction noise is heavy equipment. The mitigation measures in the EIR reduced potentially significant short-term construction noise impacts to a less than significant level. The EIR identified long-term noise impacts as mobile source noise impacts from traffic, aircraft noise impacts from John Wayne Airport, and operational noise from the operation of the project components. However, the removal of the restaurant/retail and office/lofts component of the project, in addition to the conversion from condominium to apartment uses for the Lake Towers and the low-rise residential component, will reduce traffic by 758 daily trips. This is an additional benefit in conjunction with the mitigation measures in the EIR, which reduced potentially significant long-term noise impacts to a less than significant level. The addition of the hotel in the proposed project is anticipated to generate noise. However, implementation of the mitigation measures from the EIR and the additional mitigation measures in Section VII.c below will reduce impacts to a less than significant level. Development of the project will have no new or more severe impacts beyond those addressed in the EIR. Therefore, the EIR remains adequate and complete with respect to this topic. b) Exposure of persons to or generation of excessive groundborne vibration or groundborne noise levels? (No Substantial Change from Previous Analysis) Mitigation measures were identified to reduce noise impacts in the EIR. As detailed in the EIR, the Noise Study concluded that construction will generate excessive groundborne vibration or groundborne noise levels. However, because this will only occur during the construction phase of the project, the Noise Study concluded that this impact is not considered significant. Construction of the Cinema Lofts and the retail/restaurant component of the project have been eliminated and a 185-room hotel will be constructed in its place. Construction of the proposed hotel is expected to produce groundborne vibration or groundborne noise levels comparable to the retail/restaurant and the Cinema Lofts previously planned on site. Mitigation measures in the EIR will be implemented to reduce groundborne vibration/noise levels. These findings and the related mitigation measures from the EIR also apply to the proposed project. Development of the project will have no new or more severe impacts beyond those addressed in the EIR. Therefore, the EIR remains adequate and complete with respect to this topic. c) A substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project? (No Substantial Change from Previous Analysis) Operational noise impacts resulting from the retaiUrestaurant uses will no longer apply because the 8,580 square feet of restaurant and 5,291 square feet of retail development are no longer a part of the project. The hotel, which is a new component replacing the retaiUrestaurant uses, will be open 24 hours a day, 7 days a week. It is anticipated that noise will be comparable to that previously analyzed. In MacArthur Place South ~ ~~~~ EIR Addendum o 41 75B-76 order to ensure that no additional impacts result, the mitigation measures below are included to reduce noise impacts to a less than significant level. Mitigation Measure N-1 -During operation of the hotel, the project developer shall ensure that truck deliveries to the hotel shall be restricted to the hours of 7:00 a.m. to 10:00 p.m. Delivery trucks shall not be permitted to idle in the parking lots or loading areas and shall be required to have properly maintained, factory-approved mufflers. Delivery truck drivers shall be encouraged to minimize acceleration and maintain reduced vehicle speeds while on-site. Mitigation Measure N-2 -During project construction for the hotel, the project contractor shall verify that structural designs and acoustical baffling are implemented to reduce noise levels from mechanical equipment (ventilation fans, air conditioning, and refrigeration units and their associated inlet and exhaust systems) to a level that complies with the City's Municipal Code noise ordinance standards reproduced in the table below (and also reproduced in the EIR). Citv of Santa Ana Exterior Noise Ordinance Standards Noise Level That May Not Be Daytime Night Exceeded for More Than 7:00 a.m. -10:00 p.m. 10:00 pm. - 7:00 a.m. 30 minutes in any hour 55 dB(A) 50 dB(A) 15 minutes in any hour 60 dB(A) 55 dB(A) 5 minutes in any hour 65 d6(A) 60 d6(A) 1 minute in any hour 70 dB(A) 65 dB(A) Any time 75 dB(A) 70 dB(A) Source: Section 18-312 of the City of Santa Ana Municipal Code Implementation of the above mitigation measures will ensure that no new or more severe impacts beyond those addressed and mitigated in the EIR will occur. Therefore, the EIR remains complete and adequate as it relates to noise. In regard to traffic noise impacts, the project as proposed will result in 758 fewer trips per day than the approved project. Noise impacts due to traffic will be less than originally analyzed. Therefore, the EIR remains adequate and complete with respect to noise impacts from traffic. d) A substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the project? (No Substantial Change from Previous Analysis) Development of the project will have no new or more severe impacts related to ambient noise levels beyond those addressed in the EIR. While certain components of the project are being removed, they are being replaced with similar uses in a mixed-use environment. Therefore, the EIR remains adequate and complete with respect to this topic. e) For a project located within an airport land use plan, or where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? (No Substantial Change from Previous Analysis) John Wayne Airport is approximately 1.1 miles south of the project site. However, the project site is outside of both Noise Impact Zones 1 and 2. Mitigation measures have been identified to reduce the potential to expose people residing or working in the project area to excessive noise levels. Develop- ment of the project will have no new or more severe impacts beyond those addressed in the EIR. Therefore, the EIR remains adequate and complete with respect to this topic. MacArthur Place South ~ ~~~ 5~ EIR Addendum c~ a 42 75B-77 ~ For a project within the vicinity of a private airstrip, would the project expose people residing or working in the project area to excessive noise levels? (No Substantial Change from Previous Analysis) Development of the project will have no new or more severe impacts beyond those addressed in the EIR. The project is not located in the vicinity of a private airstrip. Therefore, the EIR remains adequate and complete with respect to this topic. VIII. Population and Housing Would the project: a) Induce substantial population growth in an area, either directly (for example, by proposing new homes and businesses) or indirectly (for example through extension of roads or other infrastructure)? (No Substantial Change from Previous Analysis) The proposed project will result in fewer residential units than what was analyzed in the EIR because the Cinema Lofts will be not be built. The project will reduce the number of residential units analyzed in the EIR by 15. The proposed project will have no more severe impacts than analyzed in the EIR and the City's General Plan. Therefore, the EIR remains adequate and complete for this topic. b) Displace substantial number of existing housing, necessitating the construction of replacement housing elsewhere? (No Substantial Change from Previous Analysis) No existing housing will be disturbed with implementation of the proposed project, as none exists on the site. Development of the project will have no new or more severe impacts beyond those addressed in the EIR. Therefore, the EIR remains adequate and complete with respect to this topic. c) Displace substantial numbers of people, necessitating the construction of replacement housing elsewhere? (No Substantial Change from Previous Analysis) As noted in item b) above, no existing housing will be disturbed with implementation of the project. Therefore, the EIR remains adequate and complete with respect to this topic. IX. Public Services The EIR identified potential impacts to service providers as a result of the proposed project. However, measures were included to ensure that coordination would occur with public service providers to minimize any potential impacts from occurring. a) Would the project result in substantial adverse impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times or other performance objectives for any of the public services? Fire Protection? Police Protection? Schools? Parks? Other Public Facilities? (No Substantial Change from Previous Analysis) The proposed project will require fire, police, and emergency services. Mitigation Measures in the EIR were designed to minimize potential impacts to such services. The addition of the hotel will result in a potential increased need for such services. The Police and Fire Department were consulted regarding the proposed project and its potential impacts to Police, Fire and emergency services. Staff members in the City's Planning Division verified with the Police and Fire Departments in the City of Santa Ana that the addition of the 185 room hotel will not impact their services to the City. The EIR provides for coordination with public service providers to ensure their ability to serve the project. The project will MacArthur Place South ~ ~-+~~~ 5~ EIR Addendum ~( a u 43 75B-78 have no new or more severe impacts to fire, police, and emergency services beyond those addressed and mitigated in the EIR. Therefore, the EIR remains adequate and complete with respect to this topic. X. Recreation The EIR provides for the payment of Park Acquisition and Development Fees, parkland dedication or in-lieu fee payments to reduce impacts to recreation facilities. a) Would the project increase the use of existing neighborhood and regional parks of other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated? (No Substantial Change from Previous Analysis) An evaluation of the impacts to recreation related to the project was presented in the EIR. As noted in the EIR, the proposed project will include on-site recreation amenities for residents of the condominiums. The proposed project reduces the number of residential units by 15. Additionally, the proposed project removes the Cinema Lofts analyzed in the EIR. The recreational amenities in the Cinema Lofts included an open-air amenity deck, a pool and outdoor area, a health spa, and a gym. Recreational amenities such as these will be provided in the Cinema Tower. The proposed hotel includes an activity lawn and apool/spa. The project will have no new or more severe impacts beyond those addressed in the EIR. Therefore, the EIR remains complete and adequate as it relates to this topic. b) Does the project include recreational facilities or require the construction or expansion of recreational facilities that might have an adverse physical effect on the environment? (No Substantial Change from Previous Analysis) As part of the proposed project, the hotel includes a pooUspa and an activity lawn and, as mentioned above, recreational amenities will be provided in the Cinema Tower. The project will have no new or more severe impacts beyond those addressed in the EIR. Therefore, the EIR remains complete and adequate as it relates to this topic. XI. Transportation/Traffic A Traffic Study was prepared by Urban Crossroads in October 2003 and revised in October 2004 for the MacArthur Place South project. The EIR included analysis based on that study. Urban Crossroads has prepared a Trip Generation Evaluation (Traffic Evaluation) dated April I, 2009 for this Addendum analyzing traffic impacts resulting from the elimination of identified project components and the addition of a hotel component. The following traffic analysis is based on the 2009 Traffic Evaluation, which is included herein as Appendix A. The Traffic Evaluation incorporated trip generation rates from the recently published Institute of Transportation Engineer's (ITE) information report entitled "Trip Generation" (8"' Edition, 2008). The 2003/2004 Traffic Study incorporated trip generation rates from the 7`h Edition ITE Trip Generation Rates. The 2009 Traffic Evaluation notes that the only categories with rate changes are ITE code 850 (AM and PM peak hour) and ITE code 932 (PM peak hour). These rates are applied to supermarket and high turnover (restaurant) uses. The table below, Trip Generation Rates, identifies the rates used to calculate traffic generation for the proposed project. MacArthur Place South ~ ~~~~ EIR Addendum a 44 75B-79 Trip Generation Rates Peak Hour Tri Rates AM PM Land Use ITE Code Units In Out Total In Out Total Daily Residential condoltownhouse 230 DU 0.07 0.37 0.44 0.35 0.17 0.52 5.81 High rise res. condoltownhouse 232 DU 0.06 0.28 0.34 0.24 0.14 0.38 4.18 Mid-rise apartment2 223 DU 0.09 0.21 0.30 0.23 0.16 0.39 4.68 High rise apartment 222 DU 0.08 0.22 0.30 0.21 0.14 0.35 4.20 Business hotel 312 occupied room 0.34 0.24 0.58 0.37 0.25 0.62 7.27 Movie theater w/o matinee 443 TSF nom3 nom nom 5.79 0.37 6.16 78.06 Single-tenant office building 715 TSF 1.6 0.20 1.80 0.26 1.47 1.73 11.57 Supermarket 850 TSF 2.19 1.40 3.59 5.36 5.14 10.50 102.24 High-turnover (sit down) restaurant 932 TSF 5.99 5.53 11.52 6.58 4.57 11.15 127.15 Source: ITE (Institute of Transportation Engineers) Trip Generation Manual, 8"' Edition, 2008. 1 DU =dwelling units, TSF =thousand square feet 2 Daily trip rate based on PM peak hour rate and PM peak to daily relationship for high rise apartments 3 Nom -nominal, near zero Would the project: a) Cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system (i. e., result in a substantial increase in either the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections)? (No Substantial Change from Previous Analysis) The EIR identified significant impacts due to the increase in traffic from the MacArthur Place South project. Mitigation Measures were included in the EIR to minimize the impacts. The 2009 Traffic Evaluation concluded that the proposed project, as detailed in this Addendum, would result in reduced trip generation for all timeframes evaluated. The reduction in traffic volumes is partly due to the analysis based on using the optional alternative for high- and low-rise apartment units rather than condominium units. The table below (Currently Approved Project Trip Generation Summary) details the currently approved project trip summary. Currently Approved Project Trip Generation Summary Peak Hour AM PM Land Use ITE Code Quantity Units' In Out To[al In Out Total Daily Condominium project (5-story) 230 276 DU 19 102 121 97 47 144 1,604 Lake Towers (high-rise condos) 232 349 DU 21 98 119 84 49 133 1,459 Cinema Tower condominiums 232 150 DU 9 42 51 36 21 57 627 Townhomes 230 15 DU 1 6 7 5 3 8 87 Office condos (single-tenant) 715 10 TSF 16 2 18 3 15 18 116 Retail 850 5.35 TSF 12 7 19 29 27 56 547 High-turnover (sit down) restaurant 932 8.55 TSF 51 47 98 56 39 95 1,087 Future use traffic total 129 304 433 310 201 511 5,527 Internal capture (5%) 6 t5 21 16 10 26 276 Future use external traffic total 123 289 412 294 191 485 5,251 MacArthur Place South ~ ~~~~ EIR Addendum v 45 75B-80 Peak Hour AM PM Land Use ITE Code Quantity Units In Out Total In Out Total Daily Existing uses demolished Theater (20% utilization of 40 TSF)Z 443 8.0 TSF 0 0 0 46 3 49 624 Restaurant (sports grille 932 12.0 TSF 0 0 0 79 55 134 1,526 Existing traffic total - - - 0 0 0 125 58 183 2,150 Net new traffic total (future external -existing) 123 289 412 169 133 302 3,101 Source: ITE (Institute of Transportation Engineers) Trip Generation Manual, 8"~ Edition, 2008. 1 DU =dwelling units, TSF =thousand square feet 2 Theater utilization of 20°k full occupancy at the time traffic counts were conducted. 3 Sports grill assumed to generate no AM peak hour traffic. The table below (Proposed Project Trip Generation Summary) details the proposed project trip generation summary based on the current ITE Trip Generation Manual. Proposed Project Trip Generation Summary Peak Hour AM PM Land Use ITE Code Quantity Units' In Out Total In Out Total Daily Condominium project (5-story) 230 276 DU 25 58 83 63 44 107 1,292 Lake Towers (high-rise condos) 222 349 DU 28 77 105 73 49 122 1,466 Cinema Tower condominiums 232 150 DU 9 42 51 36 21 57 627 Business hotel 312 185 occupied rm 63 44 107 68 46 114 1,345 Future use traffic total 125 221 346 240 160 400 4,370 Internal capture (5%) 6 11 17 12 8 20 237 Future use extemal traffic total 119 210 329 228 152 380 4,493 Existing uses demolished Theater (20% utilization of 40 TSF)z 443 8.0 TSF 0 0 0 46 3 49 624 Restaurant (sports grille 932 12.0 TSF 0 0 0 79 55 134 1,526 Existing traffic total - -- - 0 0 0 125 58 183 2,150 Proposed project net new traffic total (future external -existing) 119 210 329 103 94 197 2,343 Currently approved project net new traffic total 123 289 412 169 133 302 3,101 Drfference (Proposed -Approved) -4 -79 -83 -66 -39 -105 -758 Source: ITE (Insttute of Transportation Engineers) Trip Generation Manual, 8"~ Edition, 2008. 1 DU =dwelling units, TSF =thousand square feet 2 Theater utilization of 20% full occupancy at the time traffic counts were conducted. 3 Sports grill assumed to generate no AM peak hour traffic. As shown in the tables above, impacts due to traffic would be reduced with the proposed project. Therefore, the EIR remains complete and adequate as it relates to traffic, and the project, as currently proposed, would not result in an increase in the number of vehicle trips, the volume-to-capacity ratio on roads, or congestion at intersections. b) Exceed, either individually or cumulatively, a level of service standard established by the county congestion management agency for designated roads or highways? (No Substantial Change from Previous Analysis) The EIR addressed traffic impacts to surrounding streets and freeways. Mitigation measures were included to reduce impacts. Fair share contributions towards proposed improvements will reduce impacts to a less than significant level. The proposed project will result in fewer daily trips than the project as analyzed in the EIR, and no new or more significant impacts will occur. Therefore, the EIR MacArthur Place South (-j~~ ~~~~ EIR Addendum ~~ 0 46 75B-81 remains complete and adequate in regards to analysis of exceeding, either individually or cumulatively, levels of service established by the county congestion management agency. c) Result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that results in substantial safety risks? (No Substantial Change from Previous Analysis) No change in air traffic patterns will occur as a result of the proposed project. Therefore, the EIR remains complete and adequate as it relates to this topic. d) Substantially increase hazards due to a design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g. farm equipment)? (No Substantial Change from Previous Analysis) The analysis in the EIR considered traffic impacts on the existing streets within the project site and in the surrounding area. No design features or incompatible uses are proposed that would substantially increase hazards. Therefore, the EIR remains adequate and complete for this topic. e) Result in inadequate emergency access? (No Substantial Change from Previous Analysis) Emergency access exists within the development area of the proposed project, and no changes or modifications are proposed in this Addendum. Therefore, the EIR remains complete and adequate as it relates to emergency access. ~ Result in inadequate parking capacity? (No Substantial Change from Previous Analysis) Parking requirements were analyzed in the EIR, and provision was made for the required amount of parking for all components of the project. To accommodate the proposed hotel included in this Addendum, a total of 615 parking spaces will be provided comprised of a combination of spaces in the existing parking structure and surface parking lot until the Cinema Tower is constructed. When the Cinema Tower is constructed, a new parking structure will be built to meet the parking needs of the hotel and the Cinema Tower. No new parking impacts will occur with implementation of the proposed project. Therefore, the EIR remains complete and adequate for the provision of required parking. g) Conflict with adopted policies, plans or programs supporting alternative transportation (e.g. bus turnouts, bicycle racks)? (No Substantial Change from Previous Analysis) The proposed project will not conflict with adopted policies, plans or programs supporting alternative transportation. Therefore, the EIR remains complete and adequate as it relates to this topic. XII. Utilities and Service Systems The retail/restaurant and the Cinema Lofts components of the previously approved project will be removed, and the hotel will replace the retail and restaurant uses. The Cinema Lofts location will eventually accommodate the relocated Cinema Tower. The City of Santa Ana has confirmed that a 12-inch sewer main has recently been constructed that will meet the sewer needs of the proposed hotel. Additionally, as detailed below, staff in the City's Public Works Department has also indicated that adequate water infrastructure exits to support the project. The technical reports prepared for the EIR were relied upon to calculate the proposed project's impacts on water and sewer demand. Please see Sections XII.b and XII.d below for an analysis of water and sewer demand compared to the previously approved project. a) Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board? (No Substantial Change from Previous Analysis) The addition of the 185-room hotel and removal of the retaiUrestaurant and Cinema Lofts are not anticipated to exceed wastewater treatment requirements. Please refer to Sections XII.b and XII.d MacArthur Place South ~ ~~~~ EIR Addendum o 47 75B-82 below. Mitigation measures were designed to minimize potential impacts to utilities and service systems. The project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. b) Require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? (No Substantial Change from Previous Analysis) Mitigation measures were designed to minimize potential impacts to utilities and service systems. As detailed in correspondence with the City of Santa Ana Planning Division and Public Works Agency, the proposed hotel project sewer discharge need will be addressed by a new 12" sewer main that was recently constructed in MacArthur Place. More than adequate water and sewer infrastructures have been constructed by the project applicant at the proposed hotel project frontage to meet the project's water and sewer needs. The data from the Walden and Associates Domestic Sewer Technical Report for MacArthur Place dated March 3, 2004 and revised January 14, 2005 was utilized to calculate the proposed project impacts on sewer demands. The following components will not be a part of the proposed project: retail, restaurant, and commerciaUresidential components of the Cinema Lofts. The sewer demand calculation for those uses is detailed below. The table illustrates that the land uses eliminated will result in a reduction in sewer demand of 6,154 gallons per day. Reduction in Sewer Demand Square Feet Demand Demand Land Use (SF)IUnits (du) Coefficient (gallonslday) Cinema Site Commercial 10,000 SF 50 glksf/d 500 (Cinema Lofts) Cinema Site Residential 15 DU 215 gldldu 3,225 (Cinema Lofts) Restaurant 8,590 SF 175 glksfld 1,503 Retail 5,291 SF 175 glksf/d 926 Total -- -- 6,154 The project proposes to add a 185-room hotel. As detailed in the Domestic Sewer Technical Report for MacArthur Place, the Doubletree Hotel had a demand coefficient of 150 g/d/rm. This same demand coefficient was used to calculate the proposed hotel's sewer demand, as detailed in the table below. Sewer Demand of Proposed Hotel Demand Demand Land Use Rooms Coefficient (gallonslday) Proposed hotel 185 150 g/dlrm 27,750 As detailed in the EIR, the wastewater demand for the previous project was 282,608 gallons per day. The table below illustrates the increase in sewer demand for the proposed project. MacArthur Place South ~ ~~~~ EIR Addendum o 48 75B-83 Updated Sewer Demand Increase in Sewer Demand from the Proposed Project Wastewater Demand Gallons per Day (gallons per day) Previous wastewater demand 282,608 (per EIR) 304,204 Reduction in sewer demand from -6,154 -282,608 removed project components 21,596 Additional sewer demand from +27,750 185-room hotel Total updated sewer demand 304,204 As detailed in the table above, the reduction in sewer demand from the removed project components, plus the addition in sewer demand from the proposed hotel, result in an updated sewer demand of 304,204 gallons per day. The proposed project will increase the sewer demand by 21,596 gallons per day compared to the previous project. The City has indicated that the proposed hotel project sewer discharge need will be addressed by a new 12" sewer main, which has recently been constructed. As detailed in the Domestic Sewer Technical Report for MacArthur Place, a 12" line has a flow rate of 0.405 million gallons per day (MGD). The project, as addended, would result in a sewer demand of 304,204 gallons a day, which is less than .0405 million gallons per day capacity. The project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. c) Require or result in the construction of new storm water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? (No Substantial Change from Previous Analysis) As detailed in the EIR, the previous project was to be entirely developed with impermeable surfaces. The proposed project will also be entirely developed with impermeable surfaces. Thus, no adverse impact on the existing storm water drainage facilities is anticipated because the project as proposed will not significantly differ in terms of runoff from the project analyzed in the EIR. The project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. d) Have sufficient water supplies available to serve the project from existing entitlements and resources or are new or expanded entitlements needed? (No Substantial Change from Previous Analysis) Mitigation Measures were designed to minimize potential impacts to utilities and service systems. The project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. As detailed in the EIR, the City of Santa Ana Water Department provides water service to the MacArthur Place South project area. The data from the Walden and Associates Domestic Water Technical Report for MacArthur Place (Amendment No. 1) dated March 3, 2004 and Amended November 19, 2004 was utilized to calculate the proposed project impacts on water demand. The following components will not be a part of the proposed project: retail, restaurant, and commercial/residential components of the Cinema lofts. The water demand calculation for those uses is detailed below. As identified in the table below, the land uses eliminated will result in a reduction in water demand of 7,504 gallons per day. MacArthur Place South ~ ~~~~ EIR Addendum o 49 75B-84 Reduction in Water Demand Square Feet (SF) Demand Demand Land Use (Units (du) Coefficient (gallonslday) Cinema Site Commercial 10,000 SF 60 glksfld 600 (Cinema Lofts) Cinema Site Residential 15du 275 gldldu 4,125 (Cinema Lofts) Restaurant 8,590 SF 220 glksfld 1,890 Retail 5,291 SF 220 glksfld 1,164 Total -- -- 7,779 The project proposes to add a 185-room hotel. As detailed in the Amended Domestic Water Technical Report for MacArthur Place the Doubletree hotel had a demand coefficient of 180 g/d/rm. This same demand coefficient was used to calculate the proposed hotel's water demand, as detailed in the table below. Water Demand of Proposed Hotel Demand Demand Land Use Rooms Coefficient (gallonslday) Proposed Hotel 185 180 gldlrm 33,300 Updated Water Demand Increase in Water Demand from the Proposed Project Water Demand Gallons per Day (gallons per day) Previous water demand (per EIR) 354,535 Reduction in water demand from -7,779 380,056 removed project components -354,535 Additional water demand from +33,300 25,521 185-room hotel Total updated water demand 380,056 As detailed in the table above, the reduction in water demand from the removed project components plus the additional water demand from the proposed hotel result in an updated water demand of 380,056 gallons per day. The proposed project will increase the water demand by 25,521 gallons per day compared to the previous project. The updated water demand of 380,056 gallons per day converts to 426 acre feet per year, which is an increase of 29 acre feet per year compared to the previous project. As detailed in correspondence with the City of Santa Ana Planning Division and Public Works Agency, more than adequate water and sewer infrastructures, and services and laterals, have been constructed at the proposed hotel project frontage that can meet the project's water and sewer needs. A Sewer Study will not be necessary. Four 1-inch water meters, one 2-inch water meter, and a 6-inch sewer lateral are available at the project's frontage in MacArthur Boulevard. A 6-inch water vault and meter and an 8-inch fire service are also available. Additionally, as detailed in the EIR, at 2020, the City's overall water production would be 55,370 acre feet per year. Between 2010 and 2020 the City's water production would increase by 2,410 acre-feet per year. The increased amount of water production between 2006 and 2020 would accommodate the increased water demand generated by the MacArthur Place South ~ ~('~~5~ EIR Addendum o u 50 75B-85 project and the projected build out of the City's current General Plan. The project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. e) Result in a determination by the wastewater treatment provider, which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? (No Substantial Change from Previous Analysis) Mitigation measures were designed to minimize potential impacts to utilities and service systems. As detailed in the EIR, the previous project would not result in wastewater generation that would exceed the design capacity of the Orange County Sanitation District's (OCSD) Reclamation Plant No. 1. It is anticipated that OCSD would be able handle wastewater from the proposed 185-room hotel. However, if Plant No. 1 is operating at capacity, wastewater flows would be diverted to Reclamation Plant No. 2 in Huntington Beach. Thus, the proposed project would not result in a need to expand or construct a new wastewater treatment plan. The project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. f) Be served by a landfill with sufficient permitted capacity to accommodate the project's solid waste disposal needs? (No Substantial Change from Previous Analysis) Mitigation measures were designed to minimize potential impacts to utilities and service systems. As detailed in the EIR, the project as previously proposed would have a solid waste disposal demand of 6,424 pounds per day. The change in solid waste based on the hotel and the removal of the Cinema Lofts and the 13,872 square foot retail/restaurant component is not expected to be significant. The identified daily capacity available at the Bowerman landfill is adequate to support the potential increase. Mitigation Measure U-1 -Prior to issuance of building permits, the project developer shall ensure that the building plans for the hotel shall incorporate facilities for collection and pick-up of recyclable materials. Implementation of the above mitigation measure will ensure that no new or more severe impacts beyond those addressed and mitigated in the EIR will occur. Therefore, the EIR remains complete and adequate as it relates to utilities and service systems. g) Comply with federal, state, and local statutes and regulations related to solid waste? (No Substantial Change from Previous Analysis) The solid waste generated by the hotel will not violate federal, state, and local statutes and regulations related to solid waste. A trash enclosure is included on the northern side of the hotel. Mitigation measures were designed and included in the EIR to minimize potential impacts to utilities and service systems. The project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. XIII. Mandatory Findings of Significance a) Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal, or eliminate important examples of the major periods of California history or prehistory? (No Substantial Change from Previous Analysis) Impacts to the environment were analyzed in the MacArthur Place South EIR. Due to the location of the project on a previously developed, urbanized site, no impacts to biological resources will occur. The proposed project will not degrade the quality of the environment or substantially reduce the habitat MacArthur Place South ~ ~~~~ EIR Addendum o 51 75B-86 or endanger a fish, wildlife, or plant species. Therefore, the EIR, as addended, remains adequate and complete. b) Does the project have impacts that are individually limited, but cumulatively considerable? ("Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects)? (No Substantial Change from Previous Analysis) The EIR stated that the project would contribute cumulatively significant adverse emissions to the South Coast Basin, which is already anon-attainment area. This impact is significant and adverse and cannot be mitigated to levels of insignificance. The EIR also stated that the project would have cumulative impacts regarding transportation and traffic due to the uncertainty and issues regarding fair- share funding for mitigation measure T-6, regarding the construction of a two-lane metered on-ramp to the SR-55 freeway. Due to the uncertainty of implementation, cumulative impacts were considered for the year 2025. The project will have no new or more severe impacts beyond those addressed and mitigated in the MacArthur Place South EIR. c) Does the project have environmental effects that will cause substantial adverse effects on human beings, either directly or indirectly? (No Substantial Change from Previous Analysis) Mitigation measures have been provided in the MacArthur Place South EIR to reduce impacts. The project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. MacArthur Place South ~ ~~~ S~ EIR Addendum o u 52 75B-87 Conclusion This document constitutes the Addendum to the MacArthur Place South Final Environmental Impact Report SCH 200406 1 1 40 (EIR) as adopted and certified by the City of Santa Ana. This document complies with all relevant California Environmental Quality Act (CEQA) standards to determine if the EIR remains adequate to address the impacts resulting from the proposed project pursuant to CEQA Guidelines §15164. Approval of the Addendum by the City will not require circulation of the document for public review. (CEQA Guidelines § 15164) The Addendum will be included as part of the Final Environmental Impact Report. No changes or modifications are proposed to the original project that would require major revisions to the EIR. Additional mitigation measures are provided in the Addendum to reduce impacts from the project to a less than significant level. No new information of substantial importance or new significant impacts will result from the conversion of originally entitled uses described above to the hotel and the previously approved project consistent with CEQA Section 15064. Based on the analysis herein, the MacArthur Place South EIR remains adequate and complete for the project modifications discussed in this Addendum. The Addendum will require approval by the City of Santa Ana Planning Commission and City Council. In taking action on the Addendum the City, as Lead Agency, must consider the whole of the data presented in the MacArthur Place South Final EIR and this Addendum to the EIR. No additional approvals are necessary. Pursuant to CEQA §21166 and §15162, there is no evidence that the project or its underlying circumstances have changed in a way that exposes new or more severe impacts than those reported in the MacArthur Place South Final Environmental Impact Report as addended. Furthermore, there is no new information that indicates project alternatives or mitigation measures previously found infeasible are now feasible or have not been accepted and incorporated into the project. Therefore, reliance on the Final Environmental Impact Report as addended will still provide the public and decision makers with all information necessary to evaluate the plan from an environmental perspective. MacArthur Place South ~ ~~~~ EIR Addendum o 53 75B-88 Inventory of Applicable Mitigation Measures In adopting the Final EIR, the City's findings and resolutions contained 76 mitigation measures based on refinements and revisions made to the mitigation measures presented in the DEIR. The 76 mitigation measures were incorporated in the certified resolution. All mitigation measures and conditions will either be met in development or are a requirement of City ordinance. Each of these conditions, policies, and mitigation measures will be reviewed during the normal Site Plan review process. Additionally, uniformly applied policies and standards generated to ensure substantial mitigation of environmental effects are applied as conditions of approval or as routine steps in the development process. A Mitigation Monitoring Program has been adopted as part of the approval process to ensure methods, timing, and responsible parties to monitor all mitigation measures. Further refinements in Mitigation Monitoring are hereby included in the MacArthur Place South EIR Addendum to provide more specific descriptions of activities/improvements to ensure no significant impacts from the proposed project will result. These clarifications are summarized below: Mitigation Measure AE-1- Prior to issuance of building permits the project applicant shall ensure that building plans for the proposed project shall include the use of non-reflective building materials to minimize light and glare impacts. Mitigation Measure AQ-1 -During design and construction, the project developer shall incorporate features into the project that will minimize impacts from greenhouse gas emissions such as planting onsite trees as a means of providing carbon storage, promoting energy saving measures beyond Title 24 requirements and encouraging the use of Energy Star equipment and appliances. Mitigation Measure G-1 -During grading operations, the project applicant shall ensure special handling of on-site soils as required by the City of Santa Ana, due to the high moisture content of the soils, which is well above optimum moisture conditions. The City of Santa Ana shall monitor the grading contractor to ensure stabilization of the soils during grading prior to placing and compacting fill soils over wet subgrade soils, as recommended in the geotechnical investigation prepared by Geotechnical Professionals, Inc. Mitigation Measure H-1 -Prior to the issuance of a building permit, the project developer shall provide evidence to the Planning Manager that an FAA Determination of No Hazard to Air Navigation has been obtained for the relocated Cinema Tower. The project developer shall demonstrate compliance with any conditions imposed by the FAA in their determination. Mitigation Measure N-1 -During operation of the hotel, the project developer shall ensure that truck deliveries to the hotel shall be restricted to the hours of 7:00 a.m. to 10:00 p.m. Delivery trucks shall not be permitted to idle in the parking lots or loading areas and shall be required to have properly maintained, factory-approved mufflers. Delivery truck drivers shall be encouraged to minimize acceleration and maintain reduced vehicle speeds while on-site. Mitigation Measure N-2 -During project construction for the hotel, the project contractor shall verify that structural designs and acoustical baffling are implemented to reduce noise levels from mechanical equipment (ventilation fans, air conditioning, and refrigeration units and their associated inlet and exhaust systems) to a level that complies with the City's Municipal Code noise ordinance standards reproduced in the table below (and also reproduced in the EIR). MacArthur Place South ~ ~~~~ EIR Addendum o 54 75B-89 City of Santa Ana Exterior Noise Ordinance Standards Noise Level That May Not Be Daytime Night Exceeded for More Than 7:00 a.m. -10:00 p.m. 10:00 pm. - 7:00 a.m. 30 minutes in any hour 55 dB(A) 50 d6(A) 15 minutes in any hour 60 d6(A) 55 d6(A) 5 minutes in any hour 65 d6(A) 60 d6(A) 1 minute in any hour 70 d6(A) 65 dB(A) Any time 75 dB(A) 70 dB(A) Source: Section 18-312 of the City of Santa Ana Municipal Code Mitigation Measure U-1 that the building plans recyclable materials. MacArthur Place South EIR Addendum - Prior to issuance of building permits, the project developer shall ensure for the hotel shall incorporate facilities for collection and pick-up of D ~~~~ 55 75B-90 Environmental Checklist For CEQA Compliance 1. Project Title: Expanded Initial Study and Addendum to EIR for MacArthur Place South - SCN 2004061140 2. Lead Agency Name/Address: city of Santa Ana 20 Civic Center Plaza Santa Ana, California 92702 3. Contact Person/Phone No.: __ ___ __Vince Fregoso / (714) 667-2713 4. Project Location: Southeast Corner of Main St . and MacArthur Blvd. Santa Ana, California 5. Project Sponsor Name/Address 6. General Plan Designation 7. Zoning: Nexus Development Companies District Center Specific Development (76) __ 8. Description of Project: (Describe the whole action involved, including but not limited to later phases of the project, and any secondary, support, or off-site features necessary for its implementation. Attach additional sheets if necessary.) The project involves the addition of a four story, 185-room hotel and the removal of the Cinema Lofts (10,000 square feet of commercial office use and 15 units) and 13,871 square foot retail building consisting of 8,580 square feet of restaurant space and 5,290 square feet of retail. The Cinema Towers building will be moved south of its previous location (analyzed in the EIR). 9. Surrounding Land Uses and Setting: (Briefly describe the project's surroundings.) The project site is located at the southeast corner of MacArthur Boulevard and Main Street in southeast Santa Ana. East of the site is the Costa Mesa Freeway (SR-55), south and east of the site is the City of Irvine and the City of Costa Mesa is located to the southwest. John Wayne Airport is approximately 1.1 miles south of the project site. Surrounding land uses include residential, office and commercial/retail. 10. Other public agencies whose approval is required (e.g., permits, financing approval, or participation agreement.) None. MacArthur Place South EIR Addendum D ~~~~ 57 75B-91 Environmental Factors Potentially Affected: The environmental factors checked below would be potentially affected by that project, involving at least one impact that is a "Potentially Significant Impact" as indicated by the checklist on the following pages. ^ Aesthetics ^ ^ Agricultural Resources ^ ^ Air Quality ^ ^ Biological Resources ^ ^ Cultural Resources ^ ^ Geology /Soils ^ ^ Hazards and Hazardous Materials ^ ^ Hydrology /Water Quality ^ ^ Land Use /Planning Mineral Resources Noise Population /Housing Public Services Recreation Transportation /Traffic Utilities /Service Systems Mandatory Findings of Significance Environmental Determination (to be completed by the Lead Agency) On the basis of this initial evaluation: ^ I find that the proposed project COULD NOT have a significant effect on the environment and a NEGATIVE DECLARATION will be prepared. ^ I find that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because revisions to the project have been made by or agreed to by the applicant. A MITIGATED NEGATIVE DECLARATION will be prepared. ^ I find that the proposed project MAY have a significant effect on the environment and an ENVIRONMENTAL IMPACT REPORT is required. ^ I find that the proposed project MAY have a "potentially significant impact" or "potentially significant unless mitigated" impact on the environment, but at least one effect 1) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on the attached sheets. An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed. ® I find that although the proposed project could have a significant effect on the environment, because all potentially significant effects 1) have been analyzed adequately in an earlier EIR or NEGATIVE DECLARATION pursuant to applicable standards, and 2) have been avoided or mitigated pursuant to that earlier EIR or NEGATIVE DECLARATION, including revisions or mitigation measures that are imposed upon the proposed project, nothing further is required. Signature Date Printed Name For MacArthur Place South ~~ ~~~~ EIR Addendum ~~-.~ © 58 75B-92 Evaluation of Environmental Impacts: 1. A brief explanation is required for all answers except "No Substantial Change from Previous Analysis" answers that are adequately supported by the information sources a lead agency cites in the parentheses following each question. A "No Substantial Change from Previous Analysis" answer is adequately supported if the referenced information sources show that the impact simply does not apply to projects like the one involved (e.g., the project falls outside a fault rupture zone). A "No Substantial Change from Previous Analysis" answer should be explained where it is based on project-specific factors as well as general standards (e.g., the project will not expose sensitive receptors to pollutants, based on aproject-specific screening analysis). 2. All answers must take account of the whole action involved, including off-site as well as on-site, cumulative as well as project-level, indirect as well as direct, and construction as well as operational impacts. 3. Once the lead agency has determined that a particular physical impact may occur, then the checklist answers must indicate whether the impact is a "New Significant Impact," a "More Severe Impact," or "No Substantial Change from Previous Analysis." "More Severe Impacts" is appropriate if there is substantial evidence that an effect maybe significant. If one or more entries are "New Significant Impacts" or "More Severe Impacts" when the determination is made, an EIR is required. 4. "No Substantial Change from Previous Analysis" applies where the incorporation of mitigation measures has reduced an effect from "New Significant Impacts" or "More Severe Impacts" to "No Substantial Change from Previous Analysis". The lead agency must describe the mitigation measures, and briefly explain how they reduce the effect to a less than significant level (mitigation measures from Section XVII, "Earlier Analysis," may be cross-referenced). 5. Earlier analyses may be used where, pursuant to the tiering, program EIR, or other CEQA process, an effect has been adequately analyzed in an earlier EIR or negative declaration. Section 15063(c)(3)(D). In this case, a brief discussion should identify the following: a. Earlier Analysis Used. Identify and state where they are available for review. b. Impacts Adequately Addressed. Identify which effects from the above checklist were within the scope of and adequately analyzed in an earlier document pursuant to applicable legal standards, and state whether such effects were addressed by mitigation measures based on the earlier analysis. c. Mitigation Measures. For effects that are "No Substantial Change from Previous Analysis," describe the mitigation measures that were incorporated or refined from the earlier document and the extent to which they address site-specific conditions for the project. 6. Lead agencies are encouraged to incorporate into the checklist references to information sources for potential impacts (e.g., general plans, zoning ordinances). Reference to a previously prepared or outside document should, where appropriate, include a reference to the page or pages where the statement is substantiated. 7. Supporting Information Sources: A source list should be attached, and other sources used or individuals contacted should be cited in the discussion. 8. This is only a suggested form, and lead agencies are free to use different formats; however, lead agencies should normally address the questions from this checklist that are relevant to a project's environmental effects in whatever format is selected. 9. The explanation of each issue should identify: a. the significance criteria or threshold, if any, used to evaluate each question; and b. the mitigation measure identified, if any, to reduce the impact to less than significance MacArthur Place South ~ ~~~~ EIR Addendum o 59 75B-93 No Substantial New Change from Significant More Severe Previous Issues Impacts Impacts Malysis I. Aesthetics -Would the project: a. Have a substantial adverse effect on a scenic vista? ^ ^ b. Substantially damage scenic resources, including but not limited to, trees, rock ^ ^ outcroppings and historic buildings within a state scenic highway? c. Substantially degrade the existing visual character or quality of the site and its ^ ^ surroundings? d. Create a new source of substantial light or glare that would adversely affect day ^ ^ or nighttime views in the area? II. Air Quality -Where available, the significance criteria established by the applicable air quality management or pollution control district may be reli ed upon to make the following determinations. Would the project: a. Conflict with or obstruct implementation of applicable air quality plan? ^ ^ b. Violate any air quality standard or contribute substantially to an existing or ^ ^ projected air quality violation? c. Result in a cumulatively considerable net increase of any criteria pollutant for ^ ^ which the project region is non-attainment under an applicable federal or state ambient air quality standard (including releasing emissions which exceed quantitative thresholds for ozone precursors)? d. Expose sensitive receptors to substantial pollutant concentrations? ^ ^ e. Create objectionable odors affecting a substantial number of people? ^ ^ III. Geology and Soils -Would the project: a. Expose people or structures to potential substantial adverse effects, including the risk of loss, injury, or death involving: i. Rupture of a known earthquake fault, as delineated on the most recent ^ ^ Alquist-Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial evidence of a known fault? Refer to Division of Mines and Geology Special Publication 42. ii. Strong seismic ground shaking? ^ ^ iii. Seismic-related ground failure, including liquefaction? ^ ^ iv. Landslides? ^ ^ b. Result in substantial soil erosion or the loss of topsoil? ^ ^ c. Be located on a geologic unit or soil that is unstable, or that would become ^ ^ unstable as a result of the project, and potentially result in on- or off-site landslide, lateral spreading, subsidence, liquefaction, or collapse? d. Be located on expansive soil, as defined in Table 18-1-B of the Unrform Building ^ ^ Code (1994), creating substantial risks to life or property? e. Have solid incapable of adequately supporting the use of septic tanks or ^ ^ alternative waste water disposal systems where sewers are not available for the disposal of waste water? IV. Hazards and Hazardous Materials -Would the project: a. Create a significant hazard to the public or the environment through the routine ^ ^ transport, use, or disposal of hazardous materials? b. Create a significant hazard to the public or the environment through reasonably ^ ^ foreseeable upset and accident conditions involving the release of hazardous materials into the environment? c. Emit hazardous emissions or handle hazardous or acutely hazardous materials, ^ ^ substances, or waste within one-quarter mile of an existing or proposed school? d. Be located on a site that is included on a list of hazardous materials sites ^ ^ compiled pursuant to Government Code §659662.5 and, as a result, would it create a significant hazard to the public or the environment? e. For a project located within an airport land use plan or, where such a plan has not ^ ^ been adopted, within two miles where of a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? MacArthur Place South ~ ~~~~ EIR Addendum o 60 75B-94 No Substantial New Change from Significant More Severe Previous Issues Impacts Impacts Malysis f. For a project wthin the vicinity of a private airstrip, would the project result in a safety hazard for people residing or working in the project area? g. Impair implementation of or physically interfere with an adopted emergency ^ ^ response plan or emergency evacuation plan? h. Expose people or structures to a significant risk of loss, injury or death involving ^ ^ wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? V. Hydrology and Water Quality -Would the project: a. Violate any water quality standards or waste discharge requirements? ^ ^ b. Substantially deplete groundwater supplies or interfere substantially with ^ ^ groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level (e.g., the production rate of pre- existing nearby wells would drop to a level that would not support existing land uses or planned uses for which permits have been granted)? c. Substantially alter the existing drainage pattern of the site or area, including ^ ^ through the alteration of the course of stream or river, in a manner that would result inflooding on oroff-site? d. Substanfialy alter the existing drainage pattern of the site or area, including ^ ^ through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner that would result in flooding on- or off-site? e. Create or contribute runoff water that would exceed the capacity of existing or ^ ^ planned stormwater drainage systems or provide substantial additional sources of polluted runoff? f. Otherwise substantially degrade water quality? ^ ^ g. Place housing within a 100-year flood hazard area as mapped on a federal Flood ^ ^ Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map? h. Place within a 100-year flood hazard area structures that would impede or ^ ^ redirect flood flows? i. Expose people or structures to a significant risk of loss, injury or death involving ^ ^ flooding, including flooding as a result of the failure of a levee or dam? j. Inundation by seiche, tsunami, or mudfbw? ^ ^ VI. Land Use and Planning -Would the project: a. Physically divide an established community? ^ ^ b. Conflict with any applicable land use plan, policy, or regulation of an agency with ^ ^ jurisdiction over the project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? c. Conflict with any applicable habitat conservation plan or natural community ^ ^ conservation plan? VII. Noise -Would the project result in: a. Exposure of persons to or generation of noise levels in excess of standards ^ ^ established in the local general plan or noise ordinance, or applicable standards of other agencies? b. Exposure of persons to or generation of excessive groundborne vibration or ^ ^ groundborne noise levels? c. A substantial permanent increase in ambient noise levels in the project vicinity ^ ^ above levels existing without the project? d. A substantial temporary or periodic increase in ambient noise levels in the project ^ ^ vicinity above levels existing without the project? MacArthur Place South ~ ~~~~ EIR Addendum o 61 75B-95 No Substantial New Change from Significant More Severe Previous Issues Impacts Impacts Malysis e. For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? f. For a project within the vicinity of a private airstrip, would the project expose ^ ^ people residing or working in the project area to excessive noise levels? VIII. Population and Housing -Would the project: a. Induce substantial population growth in an area, either directly (for example, by ^ ^ proposing new homes and businesses) or indirectly (for example, through extension of roads or other infrastructure)? b. Displace substantial numbers of existing housing, necessitating the construction ^ ^ of replacement housing elsewhere? c. Displace substantial numbers of people, necessitating the construction of ^ ^ replacement housing elsewhere? IX. Public Services -Would the project result in substantial adverse physical impacts associ ated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause sgnificant environmental impacts, in order to maintain acceptable service ration, response times or other performance objectives for any of the public service: a. Fire protection? ^ ^ b. Police protection? ^ ^ c. Schools? ^ ^ d. Parks? ^ ^ e. Other public facilities? ^ ^ X. Recreation a. Would the project increase the use of existing neighborhood and regional parks ^ ^ or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated. b. Does the project include recreational facilities or require the construction or ^ ^ expansion of recreational facilities that might have an adverse physical effect on the environment? XI. Transportation/Traffic -Would the project: a. Cause an increase in traffic that is substantial in relation to the existing traffic load ^ ^ ^ and capacity of the street system (i.e., result in a substantial increase in either the number of vehicle trips, the volume to capacity ration on roads, or congestion at intersections?) b. Exceed, either individually or cumulatively, a level of service standard established ^ ^ ^ by the county congestion management agency for designated roads or highways? c. Result in a change in air traffic patterns, including either an increase in traffic ^ ^ ^ levels or a change in location that results in substantial safety risks? d. Substantially increase hazards due to a design feature (e.g., sharp curves or ^ ^ ^ dangerous intersections) or incompatible uses (e.g., farm equipment)? e. Result in inadequate emergency access? ^ ^ ^ f. Result in inadequate parking capacity? ^ ^ ^ g. Conflict with adopted policies supporting alternative transportation (e.g., bus ^ ^ ^ turnouts, bicycle racks)? XII. Utilities and Service Systems -Would the project: a. Exceed wastewater treatment requirements of the applicable Regional Water ^ ^ Quality Control Board? b. Require or result in the construction of new water or wastewater treatment ^ ^ facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? MacArthur Place South ~ ~~ EIR Addendum ~~ o 62 75B-96 ssues No Substantial New Change from Significant More Severe Previous Impacts Impacts Analysis c. Require or result in the construction of new storm water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? d. Are sufficient water supplies available to serve the project from existing ^ ^ entitlements and resources, or are new or expanded entitlements needed? e. Result in the determination by the wastewater treatment provider that serves or ^ ^ may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? f. Be served by a landfill with sufficient permitted capacity to accommodate the ^ ^ project's solid waste disposal needs? g. Comply with federal, state, and local statutes and regulations related to solid ^ ^ waste? XIII. Mandatory Findings of Significance a. Does the project have the potential to degrade the quality of the environment, ^ ^ substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? b. Does the project have impacts that are individually limited but cumulatively ^ ^ considerable? ("Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, effects of other current projects and the effects of probable future projects). c. Does the project have environmental effects that will cause substantial adverse ^ ^ effects on human beings, either directly or indirectly? Checklist prepared by CAA Planning on behalf of the City of Santa Ana. 85 Argonaut, Suite 220 Aliso Viejo, CA 92656 (949) 581-2888 MacArthur Place South EIR Addendum D ~~a~~ 63 75B-97 Appendix A MacArthur Place Specific Plan Amendment Trip Generation Evaluation, April 1, 2009 75B-98 41 Corporate Park, Suite 300 Irvine, CA 92b06 949.6b0.1994 main 949.b60.1911 fax www.urbanxroads.corn April 1, 2009 Mr. Rob Eres NEXUS DEVELOPMENT CORPORATION 1 MacArthur Place, Suite 300 Santa Ana, CA 92707-2707 Subject: MacArthur Place Specific Plan Amendment Trip Generation Evaluation Dear Mr. Eres: INTRODUCTION Urban Crossroads, Inc. is pleased to submit this letter report documenting the trip generation evaluation and comparison between the currently approved MacArthur Place Specific Development Plan and the proposed Specific Development Plan amendment. This letter report summarizes the land uses and trip generation calculations for the currently approved MacArthur Place Specific Development Plan and the proposed Specific Development Plan amendment. Based on the subsequent analysis presented in this letter report, replacing the currently approved townhomes (15 dwelling units), office condominium (10,000 square feet), retail (5,350 square feet), and sit down restaurant (8,550 square feet) uses with an 185 room hotel and allowing for the optional (temporary) conversion of some condominium uses to apartment uses will result in a net reduction in trip generation for the project site. The analysis in this letter report is based upon the recently published Institute of Transportation Engineer's (ITE) informational report Trip Generation (8th Edition, 2008). The last published analysis for the subject project was a letter report entitled Trip Generation Evaluation for the Chancae in Project Description of the Hutton Center Residential Development Proiect (Urban Crossroads, Inc., December, 2004). CURRENTLY APPROVED AND PROPOSED LAND USES The MacArthur Place Specific Development Plan currently approved land uses include the following uses which are unchanged by the proposed Specific Development Plan amendment: 06674-04 Letter Report 75B-99 Mr. Rob Eres NEXUS DEVELOPMENT CORPORATION April 1, 2009 Page 2 • Cinema Tower 150 condominium dwelling units (previously analyzed as ITE land use code 232) Uses which are proposed to be eliminated in the proposed Specific Development Plan amendment include: • 15 townhome (condominium) dwelling units (previously analyzed as ITE land use code 230) • 10,000 square feet of office condominium (single tenant) use (previously analyzed as ITE land use code 715) • 5,350 square feet of retail use (previously analyzed as ITE land use code 850) • 8,550 square feet of restaurant use (previously analyzed as ITE land use code 932) The proposed Specific Development Plan amendment would replace the uses being eliminated with a 185 room hotel (ITE code 312). Additionally, the Lake Towers 349 condominium dwelling units (previously analyzed as ITE land use code 232) are evaluated under an optional alternative to accommodate high-rise apartment (rental) units, rather than high-rise condominium (purchase) units. Similarly, the Integral "Montage" project 276 condominium project (previously analyzed as ITE land use code 230) shall be modified to accommodate mid-rise apartment (rental) units, rather than condominium (purchase) units. CURRENTLY APPROVED PROJECT TRIP GENERATION The currently approved project trip generation has been recalculated based upon the actual adopted land uses and the most current ITE trip generation data. Table 1 lists the ITE Trig Generation report (8th edition) trip rates for the currently approved land uses, proposed land uses, and also the existing land uses that were present on the site at the time the project was originally entitled. The net project trip generation consists of the trip generation for the future land use minus the trip generation for the existing uses that were present at the time the project was entitled. The 8th edition trip rates for the land use categories included in Table 1 are mostly unchanged compared to the previous 7th edition trip generation rates. The only categories with rate changes are ITE code 850 (AM and PM peak hour) and ITE code 932 (PM peak hour). MacArthur Place Specific Plan Amendment Trip Generation Evaluation City of Santa Ana, CA (JN: 06674-04 Letter Report) ~ URBAN utossrtonos 75B-100 Mr. Rob Eres NEXUS DEVELOPMENT CORPORATION April 1, 2009 Page 3 Table 2 summarizes the trip generation for the currently approved Specific Development Plan. As shown on Table 2, the currently approved Specific Development Plan project generates approximately 3,101 trip-ends per day with 412 vehicles per hour during the AM peak hour and 302 vehicles per hour during the PM peak hour. These results have been compared to the last published data, which is included as Attachment "A" to this letter report. The minor changes in the approved project land use quantities and trip rates have very little effect compared to the last published data on the overall net project trip generation (one additional AM peak hour trip, the same PM peak hour trip generation, and 16 fewer trips on a daily basis). PROPOSED SPECIFIC DEVELOPMENT PLAN AMENDMENT PROJECT TRIP GENERATION The proposed Specific Development Plan amendment will replace the office condominium, retail, restaurant, and 15 condominium townhome uses in the currently adopted Specific Development Plan with a 185 room hotel (ITE code 312). Additionally, the Lake Towers 349 condominium dwelling units will be converted to apartment units. Additionally, the analysis considers the effects of the potential change of the mid-rise condominiums (Montage by Integral) to apartments as an option. Table 3 summarizes the trip generation for the proposed Speck Development Plan amendment and compares the results to the trip generation for the currently adopted Specific Development Plan. As shown on Table 3, the proposed Specific Development Plan amendment project generates approximately 2,343 trip-ends per day with 329 vehicles per hour during the AM peak hour and 197 vehicles per hour during the PM peak hour. These results have been compared to the currently adopted Specific Development Plan trip generation presented previously on Table 2. The proposed Specific Development Plan amendment will result in reduced trip generation for all time frames evaluated. The proposed Specific Development Plan amendment will generate 83 fewer trips in the AM peak hour, 105 fewer trips in the PM peak hour, and 758 fewer trips on a daily basis. MacArthur Place Specific Plan Amendment Trip Generation Evaluation h City of Santa Ana, CA (JN.• 06674-04 Letter Repoli) V V R8~ o4ossROS-os 75B-101 Mr. Rob Eres NEXUS DEVELOPMENT CORPORATION April 1, 2009 Page 4 CLOSING Based on the results of the trip generation analysis, the proposed Specific Development Plan amendment will result in reduced trip generation during all time frames evaluated. Urban Crossroads, Inc. is pleased to provide this analysis for your use. Please feel free to contact me at (949) 660-1994, x210, if you have any questions regarding this letter report. Respectfully submitted, URBAN CROSSROADS, INC. ~~~-~` Carleton Waters, P.E. Principal CW:Ir JN: 06674-04 Letter Report Attachments MacArthur Place Specific Plan Amendment Trip Generation Evaluation City of Santa Ana, cA (JN: 06674-04 Letter Report) ~ URBAN CROSSROADS 75B-102 TABLE 1 TRIP GENERATION RATES' PEAK HOUR TRIP RATES ITE AM PM LAND USE CODE UNITS2 IN OUT TOTAL IN OUT TOTAL DAILY Residential Condo/Townhouse 230 DU 0.07 0.37 0.44 0.35 0.17 0.52 5.81 Hi h Rise Res. Condo.lTownhouse 232 DU 0.06 0.28 0.34 0.24 0.14 0.38 4.18 Mid-Rise artment"' 223 DU 0.09 0.21 0.3 0.23 0.16 0.39 4.68 Hi h Rise A artment 222 DU 0.08 0.22 0.3 0.21 0.14 0.35 4.2 Business Hotel 312 OCCUPIED ROOM 0.34 0.24 0.58 0.37 0.25 0.62 7.27 Movie Theater w/o Matinee 443 TSF Nom° Nom Nom 5.79 0.37 6.16 7$.06 Sin le Tenant Office Buildin 715 TSF 1.6 0.2 1.8 0.26 1.47 1.73 11.57 Su emiarket 850 TSF 2.19 1.4 3.59 5.36 5.14 10.5 102.24 High Turnover (Sit-Down) Restaurant 932 TSF 5.99 5.53 11.52 6.58 4.57 11.15 127.15 ' Source: ITE (Institute of Transportation Engineers) Trip Generation Manual, 8th Edition, 2008. z DU =Dwelling Units, TSF =Thousand Square Feet ~ Daily trip rate based on PM peak hour rate and PM peak to daily relationship for High Rise Apartments ° Nom =Nominal, near zero U:1UcJobsl 06600-07000106600\066741Exce1~06674-04.xISjT 7 75B-103 TABLE 2 CURRENTLY APPROVED PROJECT TRIP GENERATION SUMMARY1 PEAK HOUR ITE AM PM LAND USE Code QUANTI UNITSZ IN OUT TOTAL IN OUT TOTAL DAILY Condominium Pro'ect 5 sto 230 276 DU 19 102 121 97 47 144 1,604 Lake Towers Hi h-rise Condo's 232 349 DU 21 98 119 84 49 133 1,459 Cinema Tower Condominiums 232 150 DU 9 42 51 36 21 57 627 Townhomes 230 15 DU 1 6 7 5 3 8 87 Office Condo's sin le tenant 715 10 TSF 16 2 18 3 15 18 116 Retail 850 5.35 TSF 12 7 19 29 27 56 547 High Turnover (Sit-Down) Restaurant 932 8.55 TSF 51 47 98 56 39 95 1,087 Future Use Traffic Total 129 304 433 310 201 511 5,527 Internal Ca ture 5% 6 15 21 16 10 26 276 Future Use External Traffic Total 123 289 412 294 191 485 5,251 Existin Uses Demolished Theater 20% utilization of 40 TSF a 443 8.0 TSF 0 0 0 46 3 49 624 Restaurant (Sports Grill)° 932 12.0 TSF 0 0 0 79 55 134 1,526 Existing Traffic Total 0 0 0 125 5$ 183 2,150 Net New Traffic Total (Future External -Existing) 123 289 412 169 133 302 3,101 ' Source: ITE {Institute of Transportation Engineers) Trip Generation Manual, 8th Edition, 2008. DU =Dwelling Units, TSF =Thousand Square Feet ~ Theatre utilization of 20% full occupancy at the time traffic counts were conducted. 4 Sports Grill assumed to generate no AM peak hour traffic. U:\UcJobsl 06600-07000\066001066741Excell[06674-04.x1s]T 2 75B-104 TABLE 3 PROPOSED PROJECT TRIP GENERATION SUMMARY' PEAK HOUR ITE AM PM LAND USE Code UANTI UNITSZ IN OUT TOTAL IN OUT TOTAL DAILY Condominium Pro'ect 5 sto 223 276 DU 25 58 83 63 44 107 1,292 Lake Towers Hi h-rise artments 222 349 DU 28 77 105 73 49 122 1,466 Cinema Tower Condominiums 232 150 DU 9 42 51 36 21 57 627 Business Hotel 312 185 OCCUPIED ROOM 63 44 107 68 46 114 1,345 Future Use Traffic Total 125 221 346 240 160 400 4,730 Internal Ca ture 5°k 6 11 17 12 8 20 237 Future Use External Traffic Total 119 210 329 228 152 380 4,493 Existin Uses Demolished Theater 20% utilization of 40 TSF s 443 8.0 TSF 0 0 0 46 3 49 624 Restaurant (Sports Grill) 932 12.0 TSF 0 0 0 79 55 134 1,526 Existing Traffic Total 0 0 0 125 58 183 2,150 Pro osed Project Net New Traffic Total Future External - Existin) 119 210 329 103 94 197 2,343 Cum3ntl roved Project Net New Traffic Total 123 289 412 169 133 302 3,101 DIFFERENCE (Pro osed - roved) -4 -T9 -83 -66 -39 -105 -758 ' Source: ITE (Institute of Transportation Engineers) Trip Generation Manual, 8th Edition, 2008. Z DU =Dwelling Units, TSF =Thousand Square Feet s Theatre utilization of 20% full occupancy at the time traffic counts were conducted. 4 Sports Grill assumed to generate no AM peak hour traffic. U:1UcJobs\_06600.07000106600\p8R74\Excell[0667404.x1s]T 3 75B-105 ATTACHMENT A Urban Crossroads, Inc. Trip Generation Evaluation Letter (December, 2004) 75B-106 URBAN CROSSROADS Mr. Dan Bott CITY OF SANTA ANA 20 Civic Center Plaza Santa Ana, CA 92701 Subject: Trip Generation Evaluation for the Change in Project Description of the Hutton Center Residential Development Project Dear Mr. Bott: Urban Crossroads, Inc. is pleased to present this supplemental analysis of the potential effects of ongoing refinement of the project site plan on the conclusions of the previously completed traffic impact analysis for the subject project. Based on our supplemental analysis, we believe that the findings and conclusions of the traffic study continue to represent a reasonable worst case scenario with respect to the proposed project. This conclusion is based upon a comparison of peak hour and daily trip generation for the revised project description to the trip generation of the subject project as presented in the previously completed traffic impact analysis. Therefore, no additional traffic study is recommended. Exhibit A presents the revised site plan. The revised project description states that the 5-story condominium (Integral project component} now includes 276 units. The Cinema Tower includes 154 high rise condominium units, and the Lake Towers high- rise condominiums will consist of 347 units. In addition, there are 14 residential condominiums associated with 10,000 square feet of single tenant office use, located immediately south of the Cinema Tower. The leasable square footage for non- residential uses is 5,291 square feet of general retail uses, and 8,580 square feet for restaurant uses. ..~,: rc 41 Corporate Park Suite 300 Irvine, CA 92606 p:949.660.1994 f:949.660.1911 ` s urbanxroads.com .,, s ; ~4 ~~ 75B-107 Mr. Dan Bott CITY OF SANTA ANA December 15, 2004 Page 2 Compared with the project description as analyzed in the traffic study report, the total residential unit count has decreased 43 units (from 834 units to 791 units). The restaurant use square footage has increased from 5,500 square feet to 8,600 square feet. The retail use square footage has decreased from 8,000 to 5,300 square feet. The additional single tenant office building includes a total of 10,000 square feet. The trip generation calculation for the refined site plan is based on the most recent trip generation resource report (Institute of Transportation Engineers Trip Generation Rates, ITE 7th Edition). This is consistent with the calculations presented in the previously completed traffic study report. Table 1 indicates the refined proposed site plan land use trip generation rates. Table 2 provides a trip generation summary for the overall site. As indicated on Table 2, the net project (the proposed project trips minus the demolished existing land use trips) generates approximately 3,117 trip-ends per day with 411 vehicles per hour during the AM peak hour and 302 vehicles per hour during the PM peak hour. Table 2 also presents the refined site plan trip generation in comparison to the previously published traffic study report trip generation estimates. Compared to the previously published trip generation, the current site plan daily traffic volume decreases by 44 vehicle trips per day. The PM peak hour volume decreases by 2 vehicles per hour, while the AM peak hour volume has increased by 23 vehicle trips per hour. This represents a 6% increase compared to the AM peak hour trip generation included in the published traffic analysis. Most of this increase is attributable to the increase in restaurant square footage in the proposed site plan. If a use similar to the restaurant use being demolished (National Sports Grill) is located at this site, no AM peak hour trip generation would be expected and the net result would be no increase in AM peak hour trip generation. Alternately, if the National Sports Grill was replaced by a new restaurant (consistent with existing zoning) that included a breakfast clientele, the AM peak hour trip generation would actually decrease (given the reduction from 12,000 square feet to 8,580 square feet). 75B-108 Mr. Dan Bott CITY OF SANTA ANA December 15, 2004 Page 2 Overall, the total trip generation changes for the refined project site plan are minimal compared with the previously published project description trip generation. The change (a slight increase in AM peak hour trip generation and decreases in PM peak hour and daily trip generation) are unlikely to result in any additional significant traffic impact for the study area. Therefore, no additional traffic study is recommended. Urban Crossroads, Inc. is pleased to submit this addendum to the traffic study. Please give us a call at (949) 660-1994 if you have any further questions. Respectfully submitted, URBAN CROSSROADS, INC. Carleton Waters, P.E. Principal CW:MZ:ds JN:01446-12 Min Zhou, P.E. Associate 75B-109 TABLE 1 REVISED PROJECT TRIP GENERATION RATES' PEAK HOUR AM PM LAND USE ITE CODE QUANTITY UNITSZ IN OUT TOTAL IN OUT TOTAL DAILY Condominium ro'ect 5 sto condo 230 276 DU 0.07 0.37 0.44 0.35 0.17 0.52 5.86 Lake tower hi h-rise Condominium 232 347 DU 0.06 0.28 0.34 0.24 0.14 0.38 4.18 Condominium ro'ect Cinema Tower 232 154 DU 0.06 0.28 0.34 0.24 0.14 0.38 4.18 Townhomes 230 14 DU 0.07 0.37 0.44 0.35 0.17 0.52 5.86 Office condos sin le tenant 715 10 TSF 1.6 0.2 1.8 0.26 1.47 1.73 11.57 Restaurant sit in 932 8.6 TSF 5.99 5.53 11.52 6.66 4.26 10.92 127.15 Retail 850 5.30 TSF 1.98 1.27 3.25 5.33 5.12 10.45 102.24 TABLE 2 REVISED PROPOSED OVERALL SITE TRIP GENERATION SUMMARY' PEAK HOUR AM PM ITE CODE QUANTI UNITSZ IN OUT TOTAL IN OUT TOTAL DAILY 230 276 DU 19 102 121 97 47 144 1,617 232 347 DU 21 97 118 83 49 132 1,450 232 154 DU 9 43 52 37 22 59 644 Proposed Project Development 230 14 DU 1 5 6 5 2 7 82 715 10 DU 16 2 18 3 15 17 116 932 8.6 TSF 52 48 99 57 37 94 1,093 850 5.3 TSF 10 7 17 28 27 55 542 Internal Capture (5%) 128 -6 304 -15 432 -22 310 -15 198 -10 508 -25 5,545 -277 Subtotal 122 289 411 294 188 482 5,267 Existing Use Being Demolished' Theatre` 443 8.0 TSF 0 0 0 -46 -3 -49 -624 Restaurant (Sports Grill)5 932 12 TSF 0 0 0 -80 -51 -131 -1,526 NEW NET PROJECT TRIPS PROPOSED -DEMOLISHED EXIST 122 289 411 168 134 302 3,117 PREVIOUSLY PUBLISHED NET PROJECT TRIPS 97 290 388 176 128 304 3,182 DIFFERENCE NEW -PREVIOUSLY PUBLISHED 25 -2 23 -8 6 -2 -44 ' Source: ITE (Institute of Trenaportatlon Engineers) Trip Generation Manual, 7W Edition, 2003 Z TSF = Mousand square feet DU =Dwelling Units ~ From Existing Trip Generation Table. ` Theatro utilization of 20% full occupancy at the time traffic counts were conducted. ° Sports Grill assumed to generate no AM peak hour traffic U:1UcJobsl 0/4001014461Exceh(01446-12.x1s]T1 T2 75B-110 EXHIBIT A SITE PLAN Li n .~ "!"'T~ a R I. .' } x. !~ ~.- SANJIONTE.ivE ~ ~ iF _.- ~ ~... ~l ~ "' PEDESTRIAN LEVEL SITE PLAN MacARTHUR PLACE:MASTER PLAN NEXWS DEVELOIM6NT COR~ORAi1DN 13 DECEMBER 2004 HUTTON CENTER RESIDENTIAL DEVELOPMENT TRAFFIC STUDY, Santa Ana, Cal'rfornia - 01446:041027 sp URBA~1 75B-111 TABLE 3 PROPOSED PROJECT TRIP GENERATION SUMMARY' PEAK HOUR ITE AM PM LAND USE Code QUANTIT UNITSZ IN OUT TOTAL IN OUT TOTAL DAILY Condominium Pro~ect (5 sto 223 276 DU 25 58 83 63 44 107 1,292 Lake Towers Hi h-rise A artments 222 349 DU 28 77 105 73 49 122 1,466 Cinema Tower Condominiums 232 150 DU 9 42 51 36 21 57 627 Business Hotel 312 185 OCCUPIED ROOM 63 44 107 68 46 114 1,345 Future Use Traffic Total 125 221 346 240 160 400 4,730 Internal Ca lure 5%) 6 11 17 12 8 20 237 Future Use External Traffic Total 119 210 329 228 152 380 4,493 Existin Uses Demolished Theater (20% utilization of 40 TSF 3 443 8.0 TSF 0 0 0 46 3 49 624 Restaurant (Sports Grill) 932 12.0 TSF 0 0 0 79 55 134 1,526 Existing Traffic Total 0 0 0 125 58 183 2,150 Proposed Project Net New Traffic Total (Future External -Existing) 119 210 329 103 94 197 2,343 Currently Approved Project Net New Traffic Total 123 289 412 169 133 302 3,101 DIFFERENCE (Proposed -Approved) -4 -79 -83 -88 -39 -105 -758 ' Source: ITE (Institute of Transportation Engineers) Trip Generation Manual, 8th Edition, 2008. DU =Dwelling Units, TSF =Thousand Square Feet ' Theatre utilization of 20% full occupancy at the time traffic counts were conducted. 4 Sports Grill assumed to generate no AM peak hour traffic. U'+UcJobsl OC,600-07000'06600',066h3iExcet\(06674-04 xisJT 3 AMENDMENT TO ZOA09-4, DA05-2, CUP09-8 &VA09-2 7 ~~B'~ ~ 2 KO- 4/28/09 RESOLUTION NO. 2009- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE ADDENDUM TO THE FINAL ENVIRONMENTAL IMPACT REPORT NO. 2004-02 AND APPROVE THE MITIGATION MONITORING PROGRAM; APPROVE CONDITIONAL USE PERMIT NO. 2009-08 AS CONDITIONED FOR A HOTEL AND APPROVING VARIANCE NO. 2009-02 AS CONDITIONED TO ALLOW A REDUCTION IN THE REQUIRED PARKING FOR THE PROPERTY LOCATED AT 6 EAST MACARTHUR PLACE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The Applicant is requesting approval of a zoning ordinance amendment, a conditional use permit, an amendment to a development agreement and a variance to allow the construction of a new hotel within the MacArthur Place South development at 6 East MacArthur Place. B. On April 13, 2009, the Planning Commission Chairperson declared an impasse after a series of motions failed to achieve a majority vote. The Applicant has requested the items be denied by the Planning Commission to allow them to move forward to the City Council for a final decision. The items before the Planning Commission were as follows: 1. Adopt a resolution approving the Addendum to the Final Environmental Impact Report No. 2004-02 and approve the mitigation monitoring program. 2. Adopt an ordinance approving Zoning Ordinance Amendment No. 2009-04. 3. Adopt an ordinance approving the Amendment to Development Agreement No. 2005-02. 4. Adopt a resolution approving Conditional Use Permit No. 2009-08 as conditioned. 5. Adopt a resolution approving Variance No. 2009-02 as conditioned. Resolution No. 2009- 758-113 Page 1 of 30 C. On May 4, 2009 the City Council of the City of Santa Ana held a duly noticed public hearing and at that time considered all testimony, written and oral. D. Conditional Use Permit No. 2009-08 has been filed with the City of Santa Ana seeking to allow the construction of a hotel at 6 East MacAuhur Place. 1. Pursuant to SD-76, hotel uses are permitted subject to the issuance of a Conditional Use Permit. 2. Santa Ana Municipal Code Section 41-638 authorizes the City Council to grant a conditional use permit upon making certain findings. Will the proposed use provide a service or facility which will contribute to the general well being of the neighborhood or community? The proposed use will provide an additional service to the community by providing ahigh-quality business hotel that will offer a variety of amenities including 3,000 square feet of conference room/meeting space, media area, lounge, cafe, pool and spa to it guests. Conditions of approval have been included to ensure the quality and the attractiveness of the overall design which will contribute to the general well being of the community. Will the proposed use under the circumstances of the particular case be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity? The proposed hotel use in conjunction with the rest of the MacArthur Place South development will not be detrimental to persons residing and working in the area. Any effect relating to the health, safety and general welfare of persons residing or working in the vicinity have been addressed through various mitigation measures identified in the Addendum to Environmental Impact Report 2004-02. These mitigation measures cover all aspects of the hotel from construction to daily operation and include mitigation measures relating to construction noise and soil retention to the permitted hours of operation for material deliveries and pick-ups. Resolution No. 2009- 758-114 Page 2 of 30 iii. Will the proposed use adversely affect the present economic stability or future economic development of properties surrounding the area? The proposed hotel use will not adversely affect the economic stability within the MacArthur Place South development area. The 185-room hotel and 3,000 square foot conference/meeting rooms will provide a diverse customer base for adjacent retail and restaurant uses which will reinforce the economic viability of the project area. iv. Will the proposed use comply with the regulations and conditions specified in Chapter 41 for such use? The project will be in compliance with all applicable provisions of Chapter 41 of the Santa Ana Municipal Code as well as the provisions of the SD-76 zoning district with the exception of parking. A variance will be required to deviate from this standard. v. Will the proposed use adversely affect the General Plan or any specific plan of the City? The proposed project will not adversely affect the General Plan as hotel uses are conditionally permitted within the Specific Development No. 76 (SD-76) zoning district. The General Plan Land Use Element Policy 2.2 encourages commercial development to accommodate the City's need for goods and services. A hotel use with conference and meeting rooms provides a needed service within the City. Also Policy 2.6 encourages the creation of new employment opportunities which are compatible with surrounding land uses, and provide a net community benefit. A hotel use at this location will provide a sizable amount of diverse employment opportunities while remaining compatible with surrounding development. E. Applicant has requested approval of Variance No. 2009-02 to reduce the required parking. Based on code requirement, a total of 204 parking spaces are required for the hotel use while only 183 spaces are available. Of these 183 spaces, there is an agreement to use 25 of the parking Resolution No. 2009- Page 3 of 30 75B-115 spaces as overflow parking. As a result of this agreement, the effective parking deficit for the proposed hotel is 46 spaces. 2. The City Council determines that the following findings which must be established, pursuant to Santa Ana Municipal Code Section 41-638, in order to grant a variance, have been established: That because of special circumstances applicable to the subject property, including size, shape, topography, location or surroundings, that the strict application of the zoning ordinance is found to deprive the subject property of privileges not otherwise at variance with the intent and purpose of the provisions of this Chapter. The MacArthur Place South site is a contained site surrounded by existing commercial and residential developments. The shared parking analysis, prepared by Fehr & Peers has determined that sufficient parking will be provided for the project during times of peak demand. The parking variance will allow the applicant the ability to use the property in a manner that is consistent with similar surrounding commercial, residential and professional uses. ii. That the granting of a variance is necessary for the preservation and enjoyment of one or more substantial property rights. The granting of the variance to allow reduction in parking requirement will preserve the property owner's ability to develop the property with a high quality hotel that is consistent with the Specific Development No. 76 (SD-76) zoning district. The shared parking analysis, prepared by Fehr & Peers has determined that sufficient parking will be provided on site in a combination of surface and structured parking during times of peak demand. iii. That the granting of a variance will not be materially detrimental to the public welfare or injurious to surrounding property. The granting of the variance to allow reduction in parking requirement will not be materially detrimental to the public welfare or injurious to surrounding property. Conditions have been added requiring the submittal of a parking management plan for the surface parking lot Resolution No. 2009- 758-116 Page 4 of 30 relating to the use of tandem valet parking spaces. A separate condition has been added to requiring valet service on a 24-hour basis for hotel guests. iv. That the granting of a variance will not adversely affect the General Plan of the City. The granting of the variance to allow reduction in parking requirement will not adversely affect the General Plan of the City since the proposed hotel was designed in conformance with City Zoning, Development, and General Plan requirements except for the parking requirements. The General Plan Land Use Element Policy 2.2 encourages commercial development to accommodate the City's need for goods and services. A hotel use with conference and meeting rooms provides a needed service within the City. Also Policy 2.6 encourages the creation of new employment opportunities which are compatible with surrounding land uses, and provide a net community benefit. A hotel use at this location will provide a sizable amount of diverse employment opportunities while remaining compatible with surrounding development. Section 2. On June 20, 2005 the City Council approved and adopted Final Environmental Impact Report No. 2004-02, the Mitigation Monitoring Program, and the Statement of Overriding Considerations. In accordance with the California Environmental Quality Act, an Addendum to the Final Environmental Impact Report No. 2004-02 and the mitigation monitoring program was prepared for this project. Based upon the studies, the City Council determines that there are no new significant impacts or any increases in the severity of the impacts previously identified in the original Environmental Impact Report. The City Council hereby approves the Addendum to the Final Environmental Impact Report No. 2004-02 and approves the mitigation monitoring program, attached hereto as Exhibit "A" and incorporated as though fully set forth herein. Section 3. The City Council of the City of Santa Ana after conducting the public hearing hereby approves: A. Conditional Use Permit No. 2009-08 as conditioned in Exhibit "B" attached hereto and incorporated herein for the hotel located at 6 East Mac Arthur Place. B. Variance No. 2009-02 as conditioned in Exhibit "C" attached hereto and incorporated herein for the reduction of the number of required parking spaces for the property located at 6 East Mac Arthur Place. Resolution No. 2009- 758-117 Page 5 of 30 These decisions are based upon the evidence submitted at the abovesaid hearing, which includes but is not limited to: the Request for Council Action dated May 4, 2009 and exhibits attached thereto; and the public testimony written and oral; and the Final Environmental Impact Report No. 2004-02, the Mitigation Monitoring Program, and the Statement of Overriding Considerations was approved and adopted by resolution by the City Council on June 20, 2005 all of which are incorporated herein by this reference. Section 4. This Resolution shall not be effective unless and until Ordinance No. NS- becomes effective. If said ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise do not go into effect for any reason, then this resolution shall be null and void and have no further force and effect. Section 5. Applicant has requested the approval of the above entitlements which are incompatible with previously granted entitlements. As such, any and all previously approved entitlements, including but not limited to parking variances and conditional use permits, to build or operate the 13,470 square foot retail/restaurant building and the six- story office/residential (15-unit) loft building on the Cinema site, are hereby null and void and of no further force and effect. Section 6. This decision rendered by the City Council of the City of Santa Ana is final and is subject to judicial review pursuant to California Code of Civil Procedure section 1094.6. The Clerk of the Council shall give direct notice to the applicant of the Council's decision and these findings. ADOPTED this day of , 2009 Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Resolution No. 2009- 758-118 Page 6 of 30 Kylee O. Otto Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2009-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 75B-119 Resolution No. 2009- Page 7 of 30 Conditions for Approval for Conditional Use Permit No. 2009-08 Conditional Use Permit No. 2009-08 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. In addition, it shall meet the following conditions of approval: The applicant must comply in full with each and every condition listed below rior to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of this conditional use permit. A. Planning Division The project shall remain in compliance with Site Plan Review (DP No. 08-81). 2. Any amendment to this conditional use permit must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the conditional use permit must be amended. 3. Prior to issuance of a Certificate of Occupancy the applicant shall provide a Parking Management Plan documenting how the tandem valet parking will function. Included in this plan shall be a commitment on behalf the hotel operator to offer valet parking service on 24-hour basis to hotel guests. 4. A detailed landscape plan must be reviewed and approved prior to issuance of any building permits. In addition to the landscaping palette, the plan shall include details on the hardscape design, lighting concepts and outdoor furniture. At a minimum, the project shall incorporate the amount and size of landscaping as shown on Sheet CSL1.1. The exact specifications for these items are subject to the review and approval of the Planning Commission. 5. Prior to submittal to building plan check, required notations shall be added to the plan to address Fire Department comments from site plan review memorandum dated December 31, 2008. Exhibit B Resolution No. 2009- Page 8 of 30 75B-120 Mitigation Measures 6. After project occupancy, landscaping is to be maintained to include the minimum level of plant materials installed at the time of occupancy as required by the approved plans. 7. The following items must be included as exterior amenities for the development: Enhanced paving in the motor court, enhanced paving on the walkways, and a pool and spa. The exact specifications for these items are subject to the review and approval of the Planning Manager. 8. Pedestrian walkways shall be provided through all lots to establish pedestrian pathways throughout the development as shown on the approved Pedestrian Master Plan. The amenities to be provided along this pathway shall include decorative concrete and paving, accent lighting, and landscape planters as shown on the plans. The materials and design of the walkway is subject to the review and approval of the Planning Manager. The improvements must be completed prior to issuance of a certificate of occupancy for the hotel. 9. Signage to direct customers and guests to the adjacent parking structure shall be provided. A directional sign plan needs to be submitted and approved by the Planning Manager prior to issuance of a certificate of occupancy. 10. Construction workers for the project shall be prohibited from parking in the adjacent neighborhoods. 11. Prior to issuance of building permits, the project developer shall ensure that the building plans reflect the following information: outdoor lighting fixtures adjacent to exterior doors and within walkways and parking lots shall generate a minimum 1.0 foot candle level of light during normal operation hours. During non-operating hours, outdoor lighting fixtures shall generate no less than .25 foot candle level of light. All lighting shall be directed towards the interior of the project site. 12. Prior to issuance of building permits, building plans for the proposed project shall reflect the use of non-reflective building materials to minimize light and glare impacts. 13. Prior to the issuance of building permits, a Final Landscape Plan for the project shall be approved by the City of Santa Ana Planning and Building Agency. The Final Landscape Plan shall be based on the conceptual landscape plan included in the EIR. Resolution No. 2009- Page 9 of 30 75B-121 14. Prior to issuance of Certificate of Occupancy Permits, the required landscaping for each building component of the project shall be installed to the satisfaction of the City of Santa Ana Planning Department. 15. Prior to the issuance of a building permit, the project developer shall provide evidence to the Planning Manager that an FAA "No Hazard" determination has been secured. The project developer shall demonstrate compliance with any conditions imposed by the FAA. 16. During construction, the contractor shall be required to comply with SCAQMD Fugitive Dust Rule 403 to suppress dust generated by construction operations. To ensure compliance with SCAQMD Fugitive Dust Rule 403, grading plans and demolition plans for the proposed project shall reflect the following notes: • All materials excavated or graded shall be sufficiently watered to prevent excessive amounts of dust. Watering with complete coverage shall occur at least twice daily, once in the late morning and once after work is done for the day. • All clearing and earthwork activities shall cease during periods of high winds (winds greater than 25 mph averaged over one hour) or during Stage 1 or Stage 2 smog episodes. • Internal roadways and project site entry and exit points shall be cleaned at the end of each day by the project developer. Dust and debris from construction activities that migrates or is carried onto MacArthur Boulevard or Main Street adjacent to the project site shall also be cleaned each day. • All material transported off-site shall either be sufficiently watered or securely covered to prevent excessive amounts of dust. Haul trucks leaving the site shall have a minimum freeboard distance of 12 inches. • Construction equipment leaving the project site shall be wheel washed. • The amount of area disturbed by clearing and earthwork activities shall be minimized at all times. • Equipment engines shall be maintained in good condition and in proper tune according manufacturer's specifications. • To the extent feasible, construction equipment shall use alternative clean fuels such as compressed natural gas equipment with oxidation catalysts. If alternative Resolution No. 2009- Page 10 of 30 75B-122 clean fuels are not feasible, gasoline powered construction equipment shall be used. • Construction equipment operating on diesel fuel shall use particulate filters or low sulfur diesel. • To the extent feasible construction operations shall use electricity from power poles in-lieu of temporary diesel orgasoline-powered generators. 17. Prior to commencement of construction activities, the project developer shall identify to the City a construction relations officer to act as a community liaison concerning on-site activity, including resolution of issues related to dust generation from grading/paving activities. A publicly visible sign shall be posted with the name of construction relations officer and a telephone number. 18. During finish work, the construction contractor shall ensure the minimization of ROG emissions. Building plans for the project shall specify and require the use of pre-coated building materials, use of high pressure-low volume (HPL~ paint applicators with 50 percent efficiency, and use of lower volatility paint not to exceed 100 grams of ROG per liter. 19. During construction and grading activities, the developer's construction contractor shall comply with the measures set forth in the Storm Water Pollution Prevention Plan (SWPPP) to ensure that airborne dust is kept to a minimum. 20. Prior to issuance of building permits and to the extent feasible, building plans for the proposed project shall reflect the use of the following measures. • Use low-polluting high energy-efficient appliances • Install solar panels on roofs to supply electricity for heating and cooling • Use double-paned windows to reduce thermal loss • Install automatic lighting on/off controls and energy-efficient lighting • Use light colored roofing materials in new construction to deflect heat away from buildings. 21. During grading operations, special handling of on-site soils shall be required due to the high moisture content of the soils, which is well above optimum moisture conditions. The City of Santa Ana shall monitor the grading contractor to ensure stabilization of the soils during grading prior to placing and compacting fill soils over wet sub-grade soils, as recommended in the geotechnical investigation prepared by Geotechnical Professionals, Inc. Resolution No. 2009- Page 11 of 30 75B-123 22. Prior to issuance of building permits, the project developer shall ensure that pile foundations are incorporated into the project design to mitigate the potential settlement hazards beneath the proposed buildings. Pile foundations shall be installed according to the recommendations provided in the project geotechnical report. 23. Prior to initiation of project grading, the project developer shall ensure that all existing utilities will be relocated, abandoned and removed, rerouted, or protected in coordination with the project developer and affected utility companies. 24. Prior to issuance of a grading permit for project construction, the project developer shall ensure that a Final Geotechnical Report on the project site is prepared. All recommendations from this Final Geotechnical Report shall be incorporated into the final grading plan for the project. 25. Prior to issuance of building permits, the project developer shall ensure that all structures on the site are designed in accordance with the seismic design provisions set forth in the Final Geotechnical Report and the Uniform Building Code in order to promote safety in the event of a seismic event. 26. Prior to issuance of grading permits, the project developer shall determine and demonstrate to the City of Santa Ana that the foundation piles for the project would not intrude into the Orange County groundwater basin. In the event the foundations intrude into the groundwater basin, the project developer shall obtain approval and/or permits from the Orange County Water District and the Regional Water Quality Control Board. Any measures required by these agencies will be incorporated into the final design and construction specifications for the project. 27. Prior to issuance of grading permits, the project developer shall ensure that provisions set forth in the Final Geotechnical Report regarding dust control measures during site preparation, grading and construction are incorporated into the final construction specifications for the project. 28. Prior to issuance of grading permits, the project developer shall provide proof to the City of Santa Ana of an NPDES permit from the RWQCB for on-site dewatering activities. 29. Prior to issuance of a grading permit for the project, the project developer shall prepare and submit a Notice of Intent (NOI) to the State Water Resources Control Board (SWRCB). The developer will also submit the NOI and the project Water Discharge identification Number (WDIN) provided by the SWRCB to the City of Santa Ana City Engineer. Resolution No. 2009- Page 12 of 30 75B-124 30. During all site preparation, grading and construction, the project developer shalt ensure that the project contractor complies with all applicable requirements of the NPDES permit, the Drainage Area Management Plan (DAMP), and the City's Local Implementation Plan (LIP). BMPs from the DAMP and the LIP will be implemented by the project contractors, as appropriate during site preparation, grading and construction. 31. Prior to issuance of a grading permit, the project developer shall prepare a Final Storm Water Pollution Prevention Plan (SWPPP). This plan shall be submitted and approved by the City Engineer prior to initiation of any grading activity. The project shall maintain the SWPPP on the construction site throughout the construction period. 32. During all site preparation, grading and construction, the project developer shall ensure that its contractor implements the provisions of the SWPPP. 33. Prior to the issuance of grading permits, the project developer shall submit a Final Water Quality Management Plan (1IVQMP) based on the Final Grading Plan, to be approved by the City's Director of Public Works. The WQMP shall be consistent with the DAMP and shall contain provisions and BMPs for construction and operation conditions. 34. Prior to the issuance of building permits, the project developer shall pay the City's drainage impact fee. 35. Prior to the issuance of grading permits, the project developer shall verify that structural BMPs have been permanently incorporated into project plans. Such BMPs shall ensure that pollutants from project-related storm water runoff are mitigated consistently with applicable state and local standards. 36. Prior to issuance of grading permits, the project developer shall submit a final drainage plan to the City identifying the exact size and location of drainage facilities. 37. Prior to issuance of grading permits, the project developer shall provide proof of an NPDES permit from RWQCB to the City for onsite dewatering activities. 38. Prior to issuance of building permits, the project developer shall ensure that any restaurant is fitted with grease interceptors to the size and capacity as designated by the City of Santa Ana Building Division. Resolution No. 2009- Page 13 of 30 75B-125 39. Prior to building occupancy, to the extent possible, all equipment shall be enclosed within a building or separate structure. Where this is not possible, barriers may be necessary to shield the equipment from the existing and proposed residential buildings. Depending on the size and style of the equipment, silencers in the intake and exhaust ducts may also be necessary to reduce noise at the residential buildings to an acceptable level. 40. Construction plans for the proposed project shall reflect the following note: "During demolition and construction, the contractor shall adhere to all City Noise Ordinance requirements to limit all construction activity, including equipment start-up, to between the hours of 7:00 a.m. and 8:00 p.m. Mondays through Saturdays. No construction shall take place on Sundays or federal holidays. 41. During construction, the contractor shall site all construction staging and storage areas away from sensitive receptors to the furthest extent possible. 42. During construction activities, the project developer shall ensure that all pile driving equipment shall be enclosed on all sides with an acoustical blanket barrier that provides a minimum sound transmission class (STC) rating of 30. The height of the blanket enclosure shall be at least 20-feet. With the exception of points of access to the enclosure area, there shall be no openings or gaps in the enclosure, and all points of access are to remain closed during pile driving activities. Notwithstanding Mitigation Measure No. 67, pile driving shall not commence prior to 8:00 a.m. on Saturday. 43. Prior to issuance of grading permits, the project developer shall submit a construction equipment staging plan to the City of Santa Ana for approval. 44. Prior to the start of construction activity, the project developer shall post the name and telephone number of the construction relations officer on-site. 45. Prior to any site preparation, grading or construction, the project contractor shall provide to resident associations in the Sandpointe neighborhood, the Main Attraction Condominiums and the Pinnacle Apartments a project schedule indicating the type of construction activity and duration, construction staging areas and the name and telephone number of the construction relations officer. 46. Prior to issuance of a building permit, the project developer shall coordinate any required relocation of fire hydrants on the property with Santa Ana Fire Department. Final approval from the Fire Department is required regarding location of hydrants on the project site. Resolution No. 2009- Page 14 of 30 75B-126 47. Prior to issuance of a grading permit, the project developer shall submit building plans to the Santa Ana Police Department in order to ensure compliance with the City of Santa Ana's Building Security Ordinance. The Police Department must approve the building plans with regard to the Building Security Ordinance prior to initiation of grading. 48. Prior to issuance of a building permit, the project developer shall prepare a Mandated Security Plan, which would need final Police department approval. The plan is required to address issues such as onsite uniform security staffing, restriction of hours of operation for the parking garages, implementation of electronic security, mechanical surveillance, and compliance with the basic principles of Crime Prevention Through Environmental Design. 49. Prior to issuance of a building permit, the project developer shall comply with Senate Bill 50 and pay applicable school impact fees. Currently, the Santa Ana Unified School District's adopted Fee Justification for residential development is $2.14 per square foot and $0.33 per square foot for commercial development. 50. Prior to issuance of a building permit, the project developer shall ensure that the appropriate park Acquisition and Development Fee and parkland dedication or in-lieu payments have been made. 51. Prior to issuance of building permits, the project developer shall submit a Construction Plan to Santa Ana Fire Department. The plan must be consistent with the Fire Department Fire Code requirements and must show that emergency access to the construction site is adequate. 52. Prior to issuance of building permits, the project developer shall provide evidence to the Santa Ana Fire Department that the proposed fire protection and life saving systems incorporated in the project are adequate. 53. Prior to issuance of building permits, the project developer shall submit the final design of the project, including fire sprinklers system design to the Santa Ana Fire Department for approval. 54. Prior to issuance of building occupancy permits, the project developer in cooperation with the City of Santa Ana, shall provide for the restriping of the outside southbound through lane at the intersection of Main Street and Sunflower to a shared through and right turn lane. 55. Prior to issuance of building occupancy permits, the project developer in cooperation with the City of Santa Ana, shall provide for the restriping the shared through right- Resolution No. 2009- Page 15 of 30 75B-127 turn lane at Hutton Centre Drive and MacArthur Boulevard to provide an exclusive through lane and construct a second northbound right turn lane for the northbound traffic. 56. Prior to issuance of building occupancy permits, the project developer shall pay for the construction of a third eastbound through lane on MacArthur Boulevard between Hutton Centre Drive/Imperial Promenade and the SR-55 northbound on-ramp. 57. Prior to the issuance of building occupancy permits, the project developer in cooperation with the City of Santa Ana, shall provide for the installation of a traffic signal at Hutton Centre Drive and Hutton Centre Loop. 58. Prior to issuance of building occupancy permits, the project developer shall pay for the construction of a fourth eastbound lane on MacArthur Boulevard between Hutton Centre Drive/Imperial Promenade and the SR-55 southbound on-ramp. 59. Prior to issuance of building occupancy permits, the project developer shall contribute $200,000 for the City of Santa Ana to prepare a neighborhood traffic study to assess any intrusion of project traffic into the Sandpointe Neighborhood. If traffic intrusion is attributable to the project, corrective measures could include forced-turn channelization, semi-diverters, diagonal diverters and cul-de-sacs. 60. Prior to issuance of building occupancy permits, the project developer shall develop a parking plan in cooperation with the City of Santa Ana to ensure that parking needs are met. 61. Prior to issuance of building occupancy permits the project developer shall pay afair- share contribution for restriping a second eastbound right-turn lane at the intersection of Main Street and Sunflower in order to achieve LOS D for 2025. 62. Prior to issuance of grading permits, the project developer shall coordinate with SCE to determine the exact location of all underground and overhead electrical facilities. All electrical facilities and associated structures to be left on the project site shall be protected from damage. 63. Prior to issuance of grading permits, the project developer shall ensure that grading plans reflect the under grounding of utility lines serving the proposed project. 64. Prior to issuance of grading permits, the project developer shall coordinate with Southern California Gas to determine the exact location of all underground natural gas facilities. All gas pipelines and associated structures to be left on the project site must be protected from damage. Resolution No. 2009- Page 16 of 30 75B-128 65. Prior to issuance of grading permits, the project developer shall coordinate with Adelphia Communications to determine the exact location of all underground cable facilities. The developer shall protect all existing cable lines and associated structures to be left on the project site for damage. 66. Prior to issuance of grading permits, the project developer shall coordinate with SBC Communications (formerly Pacific Bell) to determine the exact location of all underground telephone facilities. The developer shall protect all existing telephone lines and associated structures to be left on the project site from damage. 67. Prior to issuance of grading permits, the project developer shall demonstrate to the City of Santa Ana that construction-related waste generated on-site would be recycled wherever feasible as the first choice of disposal method, leaving the option of landfill disposal as a last alternative. The proposed commercial uses shall incorporate facilities for collection and pick-up of recyclable materials into the design of the project. 68. Prior to issuance of grading permits, the project developer shall coordinate with the Santa Ana Water Division to determine the exact location of all existing underground water supply facilities and take action to prevent damage to these facilities to be left on the project site or interfere with their operation. The project developer shall pay their fair share amount for the necessary facilities to accommodate project-related water supplies. 69. Prior to issuance of building permits, the existing eight-inch sewer line along Hutton Centre Drive north of Sandpointe Avenue, shall be replaced with a new 10-inch sewer line. 70. Prior to issuance of grading permits, the project developer shall coordinate with Waste Management on the type and location of facilities needed to provide solid waste disposal service to the project site. 71. Prior to issuance of grading permits, the project developer shall perform soil testing to determine is soil to be excavated from the site will require off-site disposal. If the soil is found to be contaminated, it will be properly disposed of in compliance with California environmental laws, regulations and policies. 72. During the design and construction, the project developer shall incorporate features in to the project that will minimize impacts from greenhouse gas emissions such as planting onsite trees as a means of providing carbon storage, promoting energy Resolution No. 2009- Page 17 of 30 75B-129 saving measures beyond Title 24 requirements and encouraging the use of Energy Star equipment and appliances. 73. Prior to the issuance of a building permit, the project developer shall provide evidence to the Planning Manager that the FAA Determination of No Hazard to Air Navigation has been obtained for the relocated Cinema Tower. The project developer shall demonstrate compliance with any conditions imposed by the FAA in their determination. 74. During operation of the hotel, the project developer shall ensure that truck deliveries to the hotel shall be restricted to the hours of 7:00 a.m. to 10:00 p.m. Delivery trucks shall not be permitted to idle in the parking lots or loading areas and shall be required to have properly maintained, factory-approved mufflers. Delivery truck drivers shall be encouraged to minimize acceleration and maintain reduced vehicle speeds while on-site. 75. During project construction for the hotel, the project contractor shall verify that structural designs and acoustical baffling are implemented to reduce noise levels form mechanical equipment (ventilation fans, air conditioning and refrigeration units and their associated inlet and exhaust systems) to a level that complies with the City's Municipal Code noise ordinance standards. 76. Prior to issuance of building permits, the project developer shall ensure that the building plans for the hotel shall incorporate facilities for collection and pick-up of recyclable materials. B. Police Department A security plan must be submitted to the Police Department at the plan check stage for approval. The plan must cover all aspects of the projects security including security personnel, surveillance equipment, and hardware. The project will be required to have a minimum of four state licensed uniformed security personnel. One security officer will be required for each building, one for the podium level and one for the parking garage. 2. All project walkways shall be illuminated to a minimum maintained one footcandle of light. 3. Existing surface parking lot must conform to the provisions of Chapter 8, Article II Division 3 of the Santa Ana Municipal Code (Building Security Ordinance). These code conditions will require that the existing project's lighting be upgraded to current Resolution No. 2009- Page 18 of 30 75B-130 code standards. Lighting standards cannot be located in required landscape planters. Resolution No. 2009- Page 19 of 30 75B-131 Conditions for Approval for Variance No. 2009-02 Variance No. 2009-08 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. In addition, it shall meet the following conditions of approval: The applicant must comply in full with each and every condition listed below rior to exercising the rights conferred by this variance. The applicant must remain in compliance with all conditions listed below throughout the life of the variance. Failure to comply with each and every condition may result in the revocation of this variance. A. Planning Division The project shall remain in compliance with Site Plan Review (DP No. 08-81). 2. Any amendment to this variance must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the variance must be amended. 3. Prior to issuance of a Certificate of Occupancy the applicant shall provide a Parking Management Plan documenting how the tandem valet parking will function. Included in this plan shall be a commitment on behalf the hotel operator to offer valet parking service on 24-hour basis to hotel guests. 4. A detailed landscape plan must be reviewed and approved prior to issuance of any building permits. In addition to the landscaping palette, the plan shall include details on the hardscape design, lighting concepts and outdoor furniture. At a minimum, the project shall incorporate the amount and size of landscaping as shown on Sheet CSL1.1. The exact specifications for these items are subject to the review and approval of the Planning Commission. 5. Prior to submittal to building plan check, required notations shall be added to the plan to address Fire Department comments from site plan review memorandum dated December 31, 2008. Mitigation Measures 6. After project occupancy, landscaping is to be maintained to include the minimum level of plant materials installed at the time of occupancy as required by the approved plans. Exhibit C Resolution No. 2009- Page 20 of 30 75B-132 7. The following items must be included as exterior amenities for the development: Enhanced paving in the motor court, enhanced paving on the walkways, and a pool and spa. The exact specifications for these items are subject to the review and approval of the Planning Manager. 8. Pedestrian walkways shall be provided through all lots to establish pedestrian pathways throughout the development as shown on the approved Pedestrian Master Plan. The amenities to be provided along this pathway shall include decorative concrete and paving, accent lighting, and landscape planters as shown on the plans. The materials and design of the walkway is subject to the review and approval of the Planning Manager. The improvements must be completed prior to issuance of a certificate of occupancy for the hotel. 9. Signage to direct customers and guests to the adjacent parking structure shall be provided. A directional sign plan needs to be submitted and approved by the Planning Manager prior to issuance of a certificate of occupancy. 10. Construction workers for the project shall be prohibited from parking in the adjacent neighborhoods. 11. Prior to issuance of building permits, the project developer shall ensure that the building plans reflect the following information: outdoor lighting fixtures adjacent to exterior doors and within walkways and parking lots shall generate a minimum 1.0 foot candle level of light during normal operation hours. During non-operating hours, outdoor lighting fixtures shall generate no less than .25 foot candle level of light. All lighting shall be directed towards the interior of the project site. 12. Prior to issuance of building permits, building plans for the proposed project shall reflect the use of non-reflective building materials to minimize light and glare impacts. 13. Prior to the issuance of building permits, a Final Landscape Plan for the project shall be approved by the City of Santa Ana Planning and Building Agency. The Final Landscape Plan shall be based on the conceptual landscape plan included in the EIR. 14. Prior to issuance of Certificate of Occupancy Permits, the required landscaping for each building component of the project shall be installed to the satisfaction of the City of Santa Ana Planning Department. 15. Prior to the issuance of a building permit, the project developer shall provide evidence to the Planning Manager that an FAA "No Hazard" determination has been Resolution No. 2009- Page 21 of 30 75B-133 secured. The project developer shall demonstrate compliance with any conditions imposed by the FAA. 16. During construction, the contractor shall be required to comply with SCAQMD Fugitive Dust Rule 403 to suppress dust generated by construction operations. To ensure compliance with SCAQMD Fugitive Dust Rule 403, grading plans and demolition plans for the proposed project shall reflect the following notes: • All materials excavated or graded shall be sufficiently watered to prevent excessive amounts of dust. Watering with complete coverage shall occur at least twice daily, once in the late morning and once after work is done for the day. • All clearing and earthwork activities shall cease during periods of high winds (winds greater than 25 mph averaged over one hour) or during Stage 1 or Stage 2 smog episodes. • Internal roadways and project site entry and exit points shall be cleaned at the end of each day by the project developer. Dust and debris from construction activities that migrates or is carried onto MacArthur Boulevard or Main Street adjacent to the project site shall also be cleaned each day. • All material transported off-site shall either be sufficiently watered or securely covered to prevent excessive amounts of dust. Haul trucks leaving the site shall have a minimum freeboard distance of 12 inches. • Construction equipment leaving the project site shall be wheel washed. • The amount of area disturbed by clearing and earthwork activities shall be minimized at all times. • Equipment engines shall be maintained in good condition and in proper tune according manufacturer's specifications. • To the extent feasible, construction equipment shall use alternative clean fuels such as compressed natural gas equipment with oxidation catalysts. If alternative clean fuels are not feasible, gasoline powered construction equipment shall be used. • Construction equipment operating on diesel fuel shall use particulate filters or low sulfur diesel. • To the extent feasible construction operations shall use electricity from power poles in-lieu of temporary diesel or gasoline-powered generators. Resolution No. 2009- Page 22 of 30 75B-134 17. Prior to commencement of construction activities, the project developer shall identify to the City a construction relations officer to act as a community liaison concerning on-site activity, including resolution of issues related to dust generation from grading/paving activities. A publicly visible sign shall be posted with the name of construction relations officer and a telephone number. 18. During finish work, the construction contractor shall ensure the minimization of ROG emissions. Building plans for the project shall specify and require the use of pre-coated building materials, use of high pressure-low volume (HPL~ paint applicators with 50 percent efficiency, and use of lower volatility paint not to exceed 100 grams of ROG per liter. 19. During construction and grading activities, the developer's construction contractor shall comply with the measures set forth in the Storm Water Pollution Prevention Plan (SWPPP) to ensure that airborne dust is kept to a minimum. 20. Prior to issuance of building permits and to the extent feasible, building plans for the proposed project shall reflect the use of the following measures. • Use low-polluting high energy-efficient appliances • Install solar panels on roofs to supply electricity for heating and cooling • Use double-paned windows to reduce thermal loss • Install automatic lighting on/off controls and energy-efficient lighting Use light colored roofing materials in new construction to deflect heat away from buildings. 21. During grading operations, special handling of on-site soils shall be required due to the high moisture content of the soils, which is well above optimum moisture conditions. The City of Santa Ana shall monitor the grading contractor to ensure stabilization of the soils during grading prior to placing and compacting fill soils over wet sub-grade soils, as recommended in the geotechnical investigation prepared by Geotechnical Professionals, Inc. 22. Prior to issuance of building permits, the project developer shall ensure that pile foundations are incorporated into the project design to mitigate the potential settlement hazards beneath the proposed buildings. Pile foundations shall be installed according to the recommendations provided in the project geotechnical report. Resolution No. 2009- Page 23 of 30 75B-135 23. Prior to initiation of project grading, the project developer shall ensure that all existing utilities will be relocated, abandoned and removed, rerouted, or protected in coordination with the project developer and affected utility companies. 24. Prior to issuance of a grading permit for project construction, the project developer shall ensure that a Final Geotechnical Report on the project site is prepared. All recommendations from this Final Geotechnical Report shall be incorporated into the final grading plan for the project. 25. Prior to issuance of building permits, the project developer shall ensure that all structures on the site are designed in accordance with the seismic design provisions set forth in the Final Geotechnical Report and the Uniform Building Code in order to promote safety in the event of a seismic event. 26. Prior to issuance of grading permits, the project developer shall determine and demonstrate to the City of Santa Ana that the foundation piles for the project would not intrude into the Orange County groundwater basin. In the event the foundations intrude into the groundwater basin, the project developer shall obtain approval and/or permits from the Orange County Water District and the Regional Water Quality Control Board. Any measures required by these agencies will be incorporated into the final design and construction specifications for the project. 27. Prior to issuance of grading permits, the project developer shall ensure that provisions set forth in the Final Geotechnical Report regarding dust control measures during site preparation, grading and construction are incorporated into the final construction specifications for the project. 28. Prior to issuance of grading permits, the project developer shall provide proof to the City of Santa Ana of an NPDES permit from the RWQCB for on-site dewatering activities. 29. Prior to issuance of a grading permit for the project, the project developer shall prepare and submit a Notice of Intent (NOI) to the State Water Resources Control Board (SWRCB). The developer will also submit the NOI and the project Water Discharge identification Number (WDIN) provided by the SWRCB to the City of Santa Ana City Engineer. 30. During all site preparation, grading and construction, the project developer shall ensure that the project contractor complies with all applicable requirements of the NPDES permit, the Drainage Area Management Plan (DAMP), and the City's Local Implementation Plan (LIP). BMPs from the DAMP and the LIP will be implemented Resolution No. 2009- Page 24 of 30 75B-136 by the project contractors, as appropriate during site preparation, grading and construction. 31. Prior to issuance of a grading permit, the project developer shall prepare a Final Storm Water Pollution Prevention Plan (SWPPP). This plan shall be submitted and approved by the City Engineer prior to initiation of any grading activity. The project shall maintain the SWPPP on the construction site throughout the construction period. 32. During all site preparation, grading and construction, the project developer shall ensure that its contractor implements the provisions of the SWPPP. 33. Prior to the issuance of grading permits, the project developer shall submit a Final Water Quality Management Plan (WQMP) based on the Final Grading Plan, to be approved by the City's Director of Public Works. The WQMP shall be consistent with the DAMP and shall contain provisions and BMPs for construction and operation conditions. 34. Prior to the issuance of building permits, the project developer shall pay the City's drainage impact fee. 35. Prior to the issuance of grading permits, the project developer shall verify that structural BMPs have been permanently incorporated into project plans. Such BMPs shall ensure that pollutants from project-related storm water runoff are mitigated consistently with applicable state and local standards. 36. Prior to issuance of grading permits, the project developer shall submit a final drainage plan to the City identifying the exact size and location of drainage facilities. 37. Prior to issuance of grading permits, the project developer shall provide proof of an NPDES permit from RWQCB to the City for onsite dewatering activities. 38. Prior to issuance of building permits, the project developer shall ensure that any restaurant is fitted with grease interceptors to the size and capacity as designated by the City of Santa Ana Building Division. 39. Prior to building occupancy, to the extent possible, all equipment shall be enclosed within a building or separate structure. Where this is not possible, barriers may be necessary to shield the equipment from the existing and proposed residential buildings. Depending on the size and style of the Resolution No. 2009- Page 25 of 30 75B-137 equipment, silencers in the intake and exhaust ducts may also be necessary to reduce noise at the residential buildings to an acceptable level. 40. Construction plans for the proposed project shall reflect the following note: "During demolition and construction, the contractor shall adhere to all City Noise Ordinance requirements to limit all construction activity, including equipment start-up, to between the hours of 7:00 a.m. and 8:00 p.m. Mondays through Saturdays. No construction shall take place on Sundays or federal holidays. 41. During construction, the contractor shall site all construction staging and storage areas away from sensitive receptors to the furthest extent possible. 42. During construction activities, the project developer shall ensure that all pile driving equipment shall be enclosed on all sides with an acoustical blanket barrier that provides a minimum sound transmission class (STC) rating of 30. The height of the blanket enclosure shall be at least 20-feet. With the exception of points of access to the enclosure area, there shall be no openings or gaps in the enclosure, and all points of access are to remain closed during pile driving activities. Notwithstanding Mitigation Measure No. 67, pile driving shall not commence prior to 8:00 a.m. on Saturday. 43. Prior to issuance of grading permits, the project developer shall submit a construction equipment staging plan to the City of Santa Ana for approval. 44. Prior to the start of construction activity, the project developer shall post the name and telephone number of the construction relations officer on-site. 45. Prior to any site preparation, grading or construction, the project contractor shall provide to resident associations in the Sandpointe neighborhood, the Main Attraction Condominiums and the .Pinnacle Apartments a project schedule indicating the type of construction activity and duration, construction staging areas and the name and telephone number of the construction relations officer. 46. Prior to issuance of a building permit, the project developer shall coordinate any required relocation of fire hydrants on the property with Santa Ana Fire Department. Final approval from the Fire Department is required regarding location of hydrants on the project site. 47. Prior to issuance of a grading permit, the project developer shall submit building plans to the Santa Ana Police Department in order to ensure compliance with the City of Santa Ana's Building Security Ordinance. The Police Department must approve the building plans with regard to the Building Security Ordinance prior to initiation of grading. Resolution No. 2009- Page 26 of 30 75B-138 48. Prior to issuance of a building permit, the project developer shall prepare a Mandated Security Plan, which would need final Police department approval. The plan is required to address issues such as onsite uniform security staffing, restriction of hours of operation for the parking garages, implementation of electronic security, mechanical surveillance, and compliance with the basic principles of Crime Prevention Through Environmental Design. 49. Prior to issuance of a building permit, the project developer shall comply with Senate Bill 50 and pay applicable school impact fees. Currently, the Santa Ana Unified School District's adopted Fee Justification for residential development is $2.14 per square foot and $0.33 per square foot for commercial development. 50. Prior to issuance of a building permit, the project developer shall ensure that the appropriate park Acquisition and Development Fee and parkland dedication or in- lieu payments have been made. 51. Prior to issuance of building permits, the project developer shall submit a Construction Plan to Santa Ana Fire Department. The plan must be consistent with the Fire Department Fire Code requirements and must show that emergency access to the construction site is adequate. 52. Prior to issuance of building permits, the project developer shall provide evidence to the Santa Ana Fire Department that the proposed fire protection and life saving systems incorporated in the project are adequate. 53. Prior to issuance of building permits, the project developer shall submit the final design of the project, including fire sprinklers system design to the Santa Ana Fire Department for approval. 54. Prior to issuance of building occupancy permits, the project developer in cooperation with the City of Santa Ana, shall provide for the restriping of the outside southbound through lane at the intersection of Main Street and Sunflower to a shared through and right turn lane. 55. Prior to issuance of building occupancy permits, the project developer in cooperation with the City of Santa Ana, shall provide for the restriping the shared through right-turn lane at Hutton Centre Drive and MacArthur Boulevard to provide an exclusive through lane and construct a second northbound right turn lane for the northbound traffic. 56. Prior to issuance of building occupancy permits, the project developer shall pay for the construction of a third eastbound through lane on MacArthur Boulevard between Hutton Centre Drive/Imperial Promenade and the SR-55 northbound on- ramp. Resolution No. 2009- Page 27 of 30 75B-139 57. Prior to the issuance of building occupancy permits, the project developer in cooperation with the City of Santa Ana, shall provide for the installation of a traffic signal at Hutton Centre Drive and Hutton Centre Loop 58. Prior to issuance of building occupancy permits, the project developer shall pay for the construction of a fourth eastbound lane on MacArthur Boulevard between Hutton Centre Drive/Imperial Promenade and the SR-55 southbound on-ramp. 59. Prior to issuance of building occupancy permits, the project developer shall contribute $200,000 for the City of Santa Ana to prepare a neighborhood traffic study to assess any intrusion of project traffic into the Sandpointe Neighborhood. If traffic intrusion is attributable to the project, corrective measures could include forced-turn channelization, semi-diverters, diagonal diverters and cul-de-sacs. 60. Prior to issuance of building occupancy permits, the project developer shall develop a parking plan in cooperation with the City of Santa Ana to ensure that parking needs are met. 61. Prior to issuance of building occupancy permits the project developer shall pay a fair-share contribution for restriping a second eastbound right-turn lane at the intersection of Main Street and Sunflower in order to achieve LOS D for 2025. 62. Prior to issuance of grading permits, the project developer shall coordinate with SCE to determine the exact location of all underground and overhead electrical facilities. All electrical facilities and associated structures to be left on the project site shall be protected from damage. 63. Prior to issuance of grading permits, the project developer shall ensure that grading plans reflect the under grounding of utility lines serving the proposed project. 64. Prior to issuance of grading permits, the project developer shall coordinate with Southern California Gas to determine the exact location of all underground natural gas facilities. All gas pipelines and associated structures to be left on the project site must be protected from damage. 65. Prior to issuance of grading permits, the project developer shall coordinate with Adelphia Communications to determine the exact location of all underground cable facilities. The developer shall protect all existing cable lines and associated structures to be left on the project site for damage. 66. Prior to issuance of grading permits, the project developer shall coordinate with SBC Communications (formerly Pacific Bell) to determine the exact location of all underground telephone facilities. The developer shall protect all existing Resolution No. 2009- Page 28 of 30 75B-140 telephone lines and associated structures to be left on the project site from damage. 67. Prior to issuance of grading permits, the project developer shall demonstrate to the City of Santa Ana that construction-related waste generated on-site would be recycled wherever feasible as the first choice of disposal method, leaving the option of landfill disposal as a last alternative. The proposed commercial uses shall incorporate facilities for collection and pick-up of recyclable materials into the design of the project. 68. Prior to issuance of grading permits, the project developer shall coordinate with the Santa Ana Water Division to determine the exact location of all existing underground water supply facilities and take action to prevent damage to these facilities to be left on the project site or interfere with their operation. The project developer shall pay their fair share amount for the necessary facilities to accommodate project-related water supplies. 69. Prior to issuance of building permits, the existing eight-inch sewer line along Hutton Centre Drive north of Sandpointe Avenue, shall be replaced with a new 10-inch sewer line. 70. Prior to issuance of grading permits, the project developer shall coordinate with Waste Management on the type and location of facilities needed to provide solid waste disposal service to the project site. 71. Prior to issuance of grading permits, the project developer shall perform soil testing to determine is soil to be excavated from the site will require off-site disposal. If the soil is found to be contaminated, it will be properly disposed of in compliance with California environmental laws, regulations and policies. 77. During the design and construction, the project developer shall incorporate features in to the project that will minimize impacts from greenhouse gas emissions such as planting onsite trees as a means of providing carbon storage, promoting energy saving measures beyond Title 24 requirements and encouraging the use of Energy Star equipment and appliances. 78. Prior to the issuance of a building permit, the project developer shall provide evidence to the Planning Manager that the FAA Determination of No Hazard to Air Navigation has been obtained for the relocated Cinema Tower. The project developer shall demonstrate compliance with any conditions imposed by the FAA in their determination. 79. During operation of the hotel, the project developer shall ensure that truck deliveries to the hotel shall be restricted to the hours of 7:00 a.m. to 10:00 p.m. Delivery trucks shall not be permitted to idle in the parking lots or loading areas Resolution No. 2009- Page 29 of 30 75B-141 and shall be required to have properly maintained, factory-approved mufflers. Delivery truck drivers shall be encouraged to minimize acceleration and maintain reduced vehicle speeds while on-site. 80. During project construction for the hotel, the project contractor shall verify that structural designs and acoustical baffling are implemented to reduce noise levels form mechanical equipment (ventilation fans, air conditioning and refrigeration units and their associated inlet and exhaust systems) to a level that complies with the City's Municipal Code noise ordinance standards. 81. Prior to issuance of building permits, the project developer shall ensure that the building plans for the hotel shall incorporate facilities for collection and pick-up of recyclable materials. B. Police Department A security plan must be submitted to the Police Department at the plan check stage for approval. The plan must cover all aspects of the projects security including security personnel, surveillance equipment, and hardware. The project will be required to have a minimum of four state licensed uniformed security personnel. One security officer will be required for each building, one for the podium level and one for the parking garage. 2. All project walkways shall be illuminated to a minimum maintained one footcandle of light. 3. Existing surface parking lot must conform to the provisions of Chapter 8, Article II Division 3 of the Santa Ana Municipal Code (Building Security Ordinance). These code conditions will require that the existing project's lighting be upgraded to current code standards. Lighting standards cannot be located in required landscape planters. Resolution No. 2009- Page 30 of 30 75B-142 State Clearinghouse No.: 2004061140 Draft EIR (Distributed): March 4, 2005 Final EIR (Certified On): June 20, 2005 r . ~ w? ~ k''. _ a ~ x T,. ~ x„ ._ ..~.. ..,.. .~ ; ,~ •~~.dd..~s.. ~ v i t...~ ~ '~ -u , _. "-" ~ ~ ~ ,-. ~ ~ ~ ~~ x Y , .. ~ r ~ .., ~ ~ .. ^.. .~. ~~g~ '.~ _. sig.' 4 ~; ~ . ~~ Addendum to Final Environmental Impact Report No. 2004-02 MacArthur Place South $d~.do., lie City of Santa Ana March 2009 Prepared for: Lead Agency City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92702 Contact Person: Vince Fregoso Principal Planner Planning Division (714) 667-2713 Prepared by: CAA Planning 85 Argonaut, Suite 220 Aliso Viejo, California 92656 Contact Person: Shawna L. Schaffner Chief Executive Officer (949) 581-2888 75B-143 75B-144 State Clearinghouse No.: 2004061140 Draft EIR (Distributed): March 4, 2005 Final EIR (Certified On): June 20, 2005 Contents Introduction ................................................................................................................................................... l A. Executive Summary ..................................................................................................................1 B. Environmental Impact Report Addendum ................................................................................. 1 C. Statutory Requirements .............................................................................................................1 Project Description ........................................................................................................................................ 5 A. Location .....................................................................................................................................5 B. Background ............................................................................................................................... 5 C. Description of Proposed Project ..............................................................................................15 D. Approvals Contemplated .........................................................................................................23 Environmental Analysis ..............................................................................................................................25 Conclusion .................................................................................................................................................. 53 Inventory of Applicable Mitigation Measures ............................................................................................ 54 Environmental Checklist ............................................................................................................................. 57 List of Exhibits Exhibit 1 - Regional Map ............................................................................................................................. 7 Exhibit 2 - Project Vicinity Map ................................................................................................................ .. 9 Exhibit 3 - 2005 Site Plan .......................................................................................................................... 11 Exhibit 4 - 2005 Cinema Site Plan ............................................................................................................. 13 Exhibit 5 - Proposed Site Plan .................................................................................................................... 17 Exhibit 6 - Proposed Cinema Site Plan ...................................................................................................... 19 Exhibit 7 - Ground Floor Plan .................................................................................................................... 21 Exhibit 8 - North and South Hotel Elevations ............................................................................................ 27 Exhibit 9 - East and West Hotel Elevations ............................................................................................... 29 Exhibit 10 -Landscape Plan ....................................................................................................................... 31 Appendix A -MacArthur Place Specific Plan Amendment Trip Generation Evaluation, April 1, 2009 MacArthur Place South EIR Addendum 75B-145 75B-146 Introduction A. Executive Summary The Final Environmental Impact Report ("EIR") for the MacArthur Place South project was certified on June 20, 2005. The project is a mixed use development consisting of three 25-story residential towers, three low rise condominium buildings, asix-story residentiaUoffice building with 10,000 square feet of office and 15 residential loft units, and asingle-story 13,871 square-foot retail building consisting of 8,580 square feet of restaurant and 5,290 square feet of retail. The project site is located at the southeast corner of MacArthur Boulevard and Main Street in southeast Santa Ana. East of the site is the Costa Mesa Freeway (SR-55), south and east of the site is the City of Irvine and the City of Costa Mesa is located to the southwest. John Wayne Airport is approximately 1.1 miles south of the project site. This document constitutes the Addendum to the Final EIR for the Mac Arthur Place South project, SCH #2004061140, as certified by the City of Santa Ana. The Addendum reviews the environmental impacts identified in the EIR in relation to changes to the project since the EIR was certified. These include the elimination of the Cinema Lofts (comprised of 15 residential units and 10,000 square feet of office use), removal of 13,871 square feet of retaiUrestaurant uses, the addition of a 185 room hotel, moving the Cinema Tower south of its approved location and the eventual construction of a parking structure for joint use by the hotel and Cinema Tower. An Initial Study Checklist, pursuant to CEQA, is included herein. The Initial Study and the Addendum fully comply with all relevant California Environrental Quality Act (CEQA) standards to determine if the EIR remains adequate to address the impacts resulting from the project pursuant to CEQA Guidelines § 15164. B. Environmental Impact Report Addendum Pursuant to § 15367 of the CEQA Guidelines, the City of Santa Ana is the Lead Agency for this project. As defined, the lead agency has the principal responsibility for carrying out or approving a project. This Addendum updates the progress made in the project, as certified, and serves to update the information in the EIR as contemplated in CEQA Guidelines § 15164. This document will also be used to acknowledge the addition of mitigation measures and further project modifications to the site. The CEQA Guidelines (California Code of Regulations § 15000, et seq.) authorize the use of an Addendum for the purpose of making minor or technical changes, as long as these changes do not rise to the level of requiring a subsequent or supplemental EIR pursuant to CEQA Guidelines § 15162. CEQA Guidelines § 15164 states: a) The lead agency or a responsible agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in Section 15162 calling for preparation of a subsequent EIR have occurred. C. Statutory Requirements Section 21166 of the California Environmental Quality Act (CEQA, Public Resources Code §21000, et seq.) sets the standard to determine whether another EIR should be prepared when an original EIR has been prepared. Section 21166 states: MacArthur Place South EIR Addendum 75B-147 When an environmental impact report has been prepared for a project pursuant to this division, no subsequent or supplemental environmental impact report shall be required by the lead agency or by any responsible agency, unless one or more of the following events occurs: (a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report. (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report. (c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available. Section 21166 is further explained in the CEQA Guidelines at § 15162 as follows: (a) When an EIR has been certified or a negative declaration adopted for a project, no subsequent EIR shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following.• (1) Substantial .changes are proposed in the project which will require major revisions of the previous EIR or Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; (2) Substantial changes occur with respect to the circumstances under which the project is undertaken, which will require major revisions of the previous EIR or Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or (3) New information of substantial importance which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the Negative Declaration was adopted, shows any of the following.• (A) The project will have one or more sign cant effects not discussed in the previous EIR or negative declaration; (B) Significant effects previously examined will be substantially more severe than shown in the previous EIR; (C) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible, and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or MacArthur Place South EIR Addendum 2 75B-148 (D) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. (b) If changes to a project or its circumstances occur or new information becomes available after adoption of a negative declaration, the lead agency shall prepare a subsequent EIR if required under subsection (a). Otherwise, the lead agency shall determine whether to prepare a subsequent negative declaration, an addendum, or no further documentation. (c) Once a project has been approved, the lead agency's role in project approval is completed, unless further discretionary approval on that project is required. Information appearing after an approval does not require reopening that approval. If after the project is approved, any of the conditions described in subsection (a) occurs, a subsequent EIR or negative declaration shall only be prepared by the public agency which grants the next discretionary approval for the project, if any. In this situation no other Responsible Agency shall grant an approval for the project until the subsequent EIR has been certified or subsequent negative declaration adopted. (d) A subsequent EIR or subsequent negative declaration shall be given the same notice and public review as required under Section 15087 or Section 15072. A subsequent EIR or negative declaration shall state where the previous document is available and can be reviewed. The key to §21166 and § 15162 is to determine if any circumstances have changed enough to justify repeating a substantial portion of the environmental documentation process. If conditions do not justify a new or supplemental EIR, but minor additional or technical changes (such as traffic updates, additional mitigation measures, or project improvements) are appropriate to keep the document current and useful, an agency may prepare an Addendum (CEQA Guidelines § 15164). This Addendum will document the character of any changes or additions to support the determination to prepare an Addendum. It will also provide an opportunity to evaluate all components of § 15162 to determine if the EIR still reflects the full scope of the environmental impact. Where appropriate, citations to the EIR will be made, and assumptions made in the EIR will be evaluated for continuing validity. As described in this Addendum, there are no new significant impacts or any increase in the severity of the impacts previously identified in the EIR. There are no substantial changes proposed in the project which require major revisions of the previous EIR. Therefore, in accordance with CEQA § 15164, this Addendum to the previously certified MacArthur Place South EIR is the appropriate environmental document for the action proposed herein. The §21166 test is the prevailing authority under state law on the question of whether a new environmental document is necessary. This test is a substantive one to determine the document's continuing accuracy and utility. No substantial changes are proposed in the project, no substantial changes in the circumstances for implementation of the project and no new information that was not known at the time the EIR was certified has become available. Therefore, the EIR, as certified, remains adequate and complete. MacArthur Place South EIR Addendum 75B-149 MacArthur Place South Project Approvals The MacArthur Place South project required the following review and discretionary approvals as described in the EIR: • Certification of a Final Environmental Impact Report • Zone change to Specific Development (SD) zone • Site plan review • Lot line adjustment • Tentative/Final Tract Maps • Conditional Use Permit • Parking variance • Airport Land Use Commission consistency finding • Development Agreement • Federal Aviation Administration determination for construction cranes • Regional Water Quality Control Board approval for dewatering activities No change in the required approvals is proposed. This Addendum identifies the requirement for the future submittal to the Federal Aviation Administration (FAA) for an updated Determination of No Hazard for the Cinema Tower construction. However, no construction schedule for the Cinema Tower has been established as of the date of this Addendum. MacArthur Place South EIR Addendum 4 75B-150 Project Description The following project description is based on information in the MacArthur Place South Environmental Impact Report. Modifications to the project are included in this Addendum to update the project as proposed. A. Location MacArthur Place South is a partially developed residential and office park located in the City of Santa Ana, in the County of Orange, California, immediately west of the Costa Mesa Freeway (SR-55) and approximately three-quarters mile north of the San Diego Freeway (I-405). The City of Irvine is located south and east of the site. The City of Costa Mesa is located to the southwest. The John Wayne Airport is located approximately 1.1 miles south. A Regional Map and a Project Vicinity Map are included herein as Exhibit 1 and Exhibit 2, respectively. The project lies within the boundaries of MacArthur Boulevard, Main Street, Sandpointe Avenue, and the Costa Mesa Freeway. MacArthur Place and Hutton Center Drive bisect the site. MacArthur Place runs south from MacArthur Boulevard to Sandpointe Avenue, and Hutton Centre runs from Sandpointe Avenue around to MacArthur Place. Some maps identify the entire street as Hutton Centre Drive. The project site is approximately 10 acres and is surrounded by high-rise office buildings, a hotel, and parking structures. To the west, between Sunflower Avenue and MacArthur Boulevard, are the Sandpointe single-family neighborhood, the Main Attraction condominiums and an existing Mobil service station. North of MacArthur Boulevard along Main Street is an existing Arco service station and the California Apartments. Immediately north of the MacArthur Place South project is the MacArthur Place mixed use development. B. Background The MacArthur Place South EIR identified the project area as an existing office park formerly known as Hutton Centre. Since 1982, approximately 1,551,096 square feet of office, restaurant, theater, retail, and hotel land uses have been developed in Hutton Centre. The structures range from single- story buildings to office towers ranging in height from 8 to 14 stories. In 2001 the City approved a 162-room hotel and health club for Hutton Centre, which did not move forward. The entitlement for the hotel and the health club were relinquished to implement the MacArthur Place South project. The MacArthur Place South EIR included analysis of the following project components: • Three 25-story residential towers, with a total of 501 residential units • One low-rise loft building with 14 residential units and 10,000 square feet of office space • A condominium complex including three low-rise buildings, with a total of 276 residential units • A restaurant and retail building totaling 13,871 square feet MacArthur Place South EIR Addendum 5 75B-151 The entire MacArthur Place South project layout, as originally approved, is included herein as Exhibit 3 - 2005 Site Plan. A detailed layout of the Cinema Tower, the Cinema Lofts, and retail/restaurant portion of the original plan is shown in Exhibit 4 - 2005 Cinema Site Plan. Lake Towers The 25-story Lake Towers buildings, now known as Skyline at MacArthur Place, are situated along the west side of a man-made lake within the Hutton Centre complex. The North Tower includes 173 residential units, and the South Tower includes 174 residential units. The towers are approximately 257'6" in height, including parking facilities, mechanical equipment, and rooftop appurtenances. Two levels of subterranean parking and two levels of above ground parking are provided that include a total of 735 parking stalls. Residential unit types include one-bedroom plus den, two-bedroom, and two-bedroom plus den. A central amenity deck is provided between the towers and is accessible from the third floor of each tower. The amenity deck includes a lap pool, a lounge pool, a spa pool, a sundeck with private cabanas, a barbeque and picnic area, and an outdoor terrace. A water feature extends from the pool and bisects the amenity deck. A ladies' spa and fitness room are located in the north tower and a men's spa and lounge billiards/game room are in the south tower. Cinema Tower The Cinema Tower will be located west of Hutton Centre Drive. The approved tower will be 260' tall, including mechanical equipment and rooftop appurtenances, and will include 154 residential units. Parking will include one level of subterranean parking, which will be located under the entirety of the Cinema Tower, the Cinema Lofts, and the retail/restaurant portion of the site, with a total of 316 parking spaces. An additional 128 surface parking stalls will be provided surrounding the Cinema Tower, the Cinema Lofts, and the retail/restaurant components. Four residential unit types will be provided in the Cinema Tower including one-bedroom units, one-bedroom plus den units, two-bedroom units, and two-bedroom plus den units. Cinema Lofts The Cinema Lofts will be between 5 and 6 stories, with the highest point reaching 60 feet. The Cinema Lofts will contain 14 residential units and 10,000 square feet of office above the residential space and will include a spa on the third floor and a gym on the fourth floor. An amenity deck will be located on the third floor and will serve the residents of the Cinema Tower and the Cinema Lofts. A pedestrian bridge will connect the Cinema Tower to the Cinema Lofts and provide access to the amenity deck, which will include a pool and an outdoor terrace. Retail/Restaurant The retail/restaurant component, situated along the northern project boundary, will include three retail spaces with a total of 5,291 square feet and two restaurant spaces with 8,580 square feet. Parking will be provided on the adjacent surface lot. MacArthur Place South EIR Addendum 75B-152 MacArthur Place South EIR Addendum 7 75B-153 Exhibit 1 -Regional Map 75B-154 n C (pSTIE W Q ~,~ "~A'q q J ~ $ Q 1 vr3 ~S 9 3 t^' E N 6ARRy w ¢ ~ ~ BY r ~ ~ ~ ~ H E < ~ a PL ~ H ARLI N, N _ -- - J -__. ~ Q a ,~ ~ uW ~ o AV TON aV W ~ ~ ~~ ~ i LILLlf ~~ y y ~~ AY N 300 Z J N > ~ 600 c ~ o ~ a ~ Q'ti AV INT P~K SI ARF ~~ nY > ~ AV ~P ~~~ ~ o C~LU E ~ ~~ V ~ NE AU ~ $ ~` MACARTFNIR S 9p ~ 1 s w CURIE AV ~, ~ . Pl ~~ h~ ~ ti =~ ~ z N BELL AU ti ~ FIRST ~ AMERIC/W ~ lip H c BLV[~ ~ E PEA TyOR i~ ~ ,UNIpER AV '~CQ PE AV ~ gyp, ~L~~yrv~M. 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Maps Exhibit 2 -Project Vicinity Map MacArthur Place South EIR Addendum 75B-155 75B-156 ,Y® a ~~ ~. .I~ if. a A ~~ ~ ~~ ~~ ~~~ i~~ ~ g ;~~ j ~ ~, _ ~~ ~ r _ _ I~ i GS, ~ O ' ~- ~~ ~ ~. dg r $ fl ~ ~ f11 ~~ I ~ ~~ ~ o ~1i9 ~ .' I ~~~, o , ~ _ '~ Q -~ 00 . ~`. ~ _. +~ %~ J ~ '~ ' n {~ ~ ~~ .: ._ ., o ~_ ... .. ,, ,,, o~ E - - -~ ~, ~~ n n I I I l I I. ~i i ~C~ =1:Il l:lfllli 1 1 I ~- -~ ~~' i A I III'II:' I ~ R ~ II.II III III'~!I I ~' ~ IL.. In'n' IIHIIII III ~ (~j ~ - ~ :, 1. ~ ~ - ~ i 7~ .: ~ <•Xl LX> ~ Cp j z II ~ ~~ -. L_: s -- „ ' IJ f-p CFJ ~S W ~? ~ ~ ~ L. - - -- ~ - I ~„ n. I - - -- ----~. -_ ,i.... -- -__ -_- rr_ ~,~ -- _-=- i1 2 ~' 2 Up ~O II v PEES c a d 0 0 N .L X W s 5 m v E m aD' c ~ d to ra Q ~~ ~w 75B-157 75B-158 YPYP py5 S E ~ _~ - _ - - "v E3 ~: ~3 ~$ r d~5 ~l ES vEy~ 3~a ~1 ~~ P i i Y P Y 9 n P Ya E. 1p 3 E~ !. End 3 s 8 1p ~° Y gg g~g 6 £ p@ ~ b ~ . 3 2; Y ~a ~ '~ @IY~a iE t ~, ~~ f ~a@~ ~~ ~~ s~atl ~~ €~ a ~~ '~ ~~ ~~ ~~ ~' ~~ ~s ~ s 3~ ~~ ~° if ~e ~~ ~~ 9$ ~ 3~ ~~ ~ ~~ ~~ ~~ 4! s~ : ~~ ~ C E O 1 O a I ~ r'~4 ~ I t _~ 1 1 1 1 t ii:' - _ ~ _ ~, ~''~__ ., / ~ ~ ~ ~ ~ 'S \~ [ 1 i ~' .~ w ~/ z ~ o ~ i ~ ~ - ~ ~ ~ ti I a. ~ z i _~ z~ ~ ~ a ~--~ ` X I \ ~~ ~/\j ~. ,~., t ~ °. l LJ~ / ~ .- . ~ - _ _ _ irrrf-~I dOOI ~ 3b1N30 ~_ ~ °i NOl1fIH - ._ ~; _ _ '; ~ y ~ ~ U w3 I w i z o u ~~ ~I m i "~ ~: ~ ~_-~ ~ .~ o ~~ ~~ C ~ ~ ~~ _ .~ QZ¢ ~ L ~ Q J Jf ~ f _ W ~ J ~ J W l~ l ~ \ ~' - \ ~\\ ~; J J y lp: \\ l i .1 \w L _ 'OnlB 21f1H1UVJVW t -..~' -... ..~ z \~ _ ~ - C ~,.i Y6 a v H °O Q1 C v 0 0 N ~_ t x W L_ O N ~ E m da' c 3 71 L 'O r o a Q (j ~ W 75B-159 75B-160 Low-Rise Condominiums The condominium portion of the project, known as the Montage ("Project"), as approved, called for the development of three separate buildings, ranging in height from 50 to 60 feet (five and six stories), containing 276 residential units. Vehicle access is provided via aright-in/right-out driveway on MacArthur Boulevard and from Sandpointe Avenue to an internal roadway. Eight residential unit types are proposed ranging from one to three bedrooms and baths. The residential styles include typical single-story condominiums, townhouses, and "live/work" units. An interior courtyard will contain a water feature and a recreation area including a tot lot, a swimming pool, a game table, a BBQ area, and a seating area. A total of 689 parking stalls will be provided on two levels of parking - one subterranean level and one above ground. The buildings will be separated by a landscaped promenade along interior-facing patios and balconies. The architectural design provides a staggered roofline, with portions extending to six stories in height. This design will provide a visual relief from that of a solid structure with a single roofline. C. Description of Proposed Project The project applicant is proposing the removal of the Cinema Lofts and the retail/restaurant components and the addition of a 185-room hotel and surface parking. The table below shows the project components that will be removed and added. It is important to note that the Final EIR analyzed 501 high-rise residential units and 14 lofts. However, the City of Santa Ana approved a configuration including 499 high-rise residential units and 15 lofts. Each of the project components, as approved by the City of Santa Ana, is discussed in more detail below. Exhibit 5 -Proposed Site Plan depicts the revised MacArthur Place South site plan. To be removed To be added Cinema Lofts (15 units and 10,000 square feet of office use) 185-room hotel Restaurant (8,580 square feet) Retail (5,291 square feet) Lake Towers The residential towers have been constructed, with a total of 349 units. The owner of the Lake Towers has submitted a proposal to the City of Santa Ana to allow for-rent units while maintaining the amenities originally approved. Traffic impacts resulting from condominium to for-rent units are analyzed herein in order to provide aworst-case analysis. The proposal to allow for-rent units has been approved by the City of Santa Ana Planning Commission, but has not been considered by the City Council at the time of this writing. No other modifications to this component of the project are proposed. Cinema Tower The Cinema Tower will be relocated south approximately 174 feet from the location analyzed in the project Final EIR. The Cinema Tower will remain west of Hutton Center Drive, across from the North Lake Tower, and 150 units are planned. Parking for the Cinema Tower will be accommodated in a future parking structure that will be located where a temporary surface parking lot is currently proposed. The surface parking lot will also be used as parking for the proposed hotel in the interim. MacArthur Place South EIR Addendum 15 75B-161 Cinema Lofts The 15 Cinema Lofts will be eliminated from the project. The lofts included resident-serving amenities such as a spa, a gym, and an amenity deck that included a pool and an outdoor terrace. Similar amenities will be provided in the Cinema Tower. Retai t/Restaurant The retaiUrestaurant component analyzed in the EIR included three retail spaces with 5,291 square feet and two restaurant spaces with 8,580 square feet for a total of 13, 871 square feet. Parking would be provided on the surface lot. The retail/restaurant component will be eliminated to be replaced with the addition of the Marriott hotel. Low-Rise Condominiums The owner of the low-rise condominiums site has submitted a proposal to the City of Santa Ana to change the low-rise condominiums as analyzed in the MacArthur Place EIR to for-rent residential units while maintaining the amenities originally approved. Traffic impacts resulting from condominium to for-rent unit uses are analyzed herein in order to provide aworst-case analysis. The proposal to alter the land use has not been approved by the City at the time of this writing. No other modifications to this component of the project are proposed. Hotel The proposed hotel will be constructed where the retail and restaurant uses and the Cinema Tower were previously located. The 4-story hotel will have 185 rooms with approximately 100,097 square feet. Amenities will include a pool and a spa. A plan showing the hotel, the parking lot, and the existing parking structure is included as Exhibit 6 -Proposed Cinema Site Plan. A plan showing the ground floor plan for the new hotel is included herein as Exhibit 7 -Ground Floor Plan. Development will occur in one phase with the entire 185-room hotel being constructed at the same time. A total of 615 parking spaces will be provided, which will be comprised of a combination of spaces in the existing parking structure and surface parking lot. Specifically, the parking will include 133 dedicated surface parking spaces, 25 dedicated spaces from the existing office parking structure, and 475 spaces from the office parking structure available in the evening. When the Cinema Tower is constructed, a new parking structure will be built to meet the parking needs of the hotel and the Cinema Tower. MacArthur Place South EIR Addendum 16 75B-162 i i~ ~ .~ r ~ E ¢g 6ld ~ ~ ~ pp qq 'ftin• ~ _. .`~' + ~ f ~e ~:; ~• ~e ,,, `~ :~`. t ~'. C R a d -o a N a 0 a s x W t 5 0 ~ E m a v' ~~ ~d zv rv a ~~ ~w 75B-163 75B-164 ~ ~ ~ 9 Q ~~ ~ ~ ~ ~ ~ ~~ tl ~ ~ s ~ } F ~ ° e ~ t ~ ~ ~6 tl ~~ ~ ~ y ~ 1 ~ ~ ~ N e 1 ~ ~ ! ~ ~p f~ ~~~~ ~ai~ 19 ~~ gBi :~t ~ ~ ~t 9 tl~~ ~tli ~`~~ 5 tl~,tld ~ i ~ ~ c f ~~~ ~ ~~ ~~~ ~ ~gf l~ i~i ~ tlB p#F ptll l •• ~ ~ 80E 1 tl1 : ~B d l B ~I v !!l OO9G~O o n o memmmmmmmmmammmmmmm J -- '~ ---- --! -' wrr~rw ways ..~. ~:% v .r ~. I Z __-__-_I ~ '_ ~,~ _ ~~ j 1 ~~ p l _ ~~ ~~ , Ali ¢~ -- ~. I Z.~ r=i<I , u C t0 a a N r0 41 _C U N O a O a` a r X W rn t 0 d v E m d -'o c ~ N t a aL ~ cS Q m d' ~ W 'a: m© m ' ' i a .i '-:~~•.T.,~,...~ sac 75B-165 ~ I~ f~_1 ~ n' ; I I 75B-166 © 4. fi O ~ a` i' o t q > ~~E © i i Q ~T ~ # /~ ~- W O ® o } {± ~' ~ h <~a---o =- -- t o '' f' o ~• `• ~~ ~ ~~~~ ~ ~ d ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ W ~~Iloo 8 ,J ~~! y .. ~ ~b ~~~ Z ~~~~ g w a$g"s ~~tf~p$'f i ~~g~~i~~gR~S m= n gm6~~~~ n~e$ a ~ ~a~`~~~°~~~ a ~r 2,.~ W ~~ Z~ u"<~ e C a L LL C L L x W N t 5 0 m ~ ~ -'o c ~ d L ~ 'L ~ f.~ t0 ~ ~ W • •m®O IO O® O O~ O O 0 0 - r _ - ra, _ __ _. ._ ._~ ~ , a _ _ ,_~_~~ ~ C ~ e ~ ~ ~ n e ~ ~ ~ ~ -i - ` O 1 ~ t ~ ?li Y ~ ~ 4~ ~ -aY 1 -0Y y ! ~I ~, r7 C' ,.,. ---- e ~ --~C~ ,a~ ~, ~ ~ .o F. j ~ [__ J V' ~ f ~~~ 0 ~.J -~ v~"-~ _i 75B-167 }® >E I A ? O '. Q. L 75B-168 D. Approvals Contemplated The Addendum will require approval by the City of Santa Ana Planning Commission and the City Council. In taking action on the Addendum the City, as Lead Agency, must consider the whole of the data presented in the MacArthur Place South Final EIR and this Addendum to the EIR. The proposed hotel will undergo site plan review and will require a limited ABC license for a beer and wine bar and special event activities. Future Requirement for Determination of No Hazard The relocation of the previously approved Cinema Tower will require a new request to the Federal Aviation Administration (FAA) for a determination of No Hazard to Air Navigation. A Determination of No Hazard is issued by the FAA if it is determined that the proposed project does not have a substantial physical or electromagnetic interference effect upon navigable airspace or air navigation facilities. The original FAA Determination was issued on September 1, 2004 and expired on March 1, 2006. The Determination was based on a building location (33° 41' 55.807" latitude; 117° 51' 57.727" longitude) in approximately the same footprint as now proposed. Subsequent to the first Determination, the project proponent relocated the building 174' to the north (33° 41' 57.496" latitude; 117° 51' 57.701" longitude) and applied for a No Hazard Determination based on that location. In May 2005, the FAA issued four Determinations of No Hazard for the four corners of the relocated building. The Determinations expired on November 8, 2006. A new request will be submitted to the FAA once a construction schedule has been established for the Cinema Tower. On February 17, 2005 the Airport Land Use Commission (ALUC) chose to treat the absence of the Determination of No Hazard as an impairment of their review and voted that the project was not consistent with AELUP. At a June 16, 2005 meeting, the ALUC staff requested and the Commission agreed to find the project conditionally consistent with the AELUP and incorporated the new FAA Determinations into its decision. In June 2005, when the EIR was certified, the City of Santa Ana was inconsistent with respect to the AELUP for John Wayne Airport. On December 18, 2008, the ALUC approved the City's General Plan Airport Environs Element and deemed the City consistent. MacArthur Place South EIR Addendum 23 75B-169 75B-170 Environmental Analysis For Projects with Previously Certified/Approved Environmental Documents Final Environmental Impact Report MacArthur Place South SCN 2004061140 The following analysis takes into consideration the preparation of an environmental document prepared at an earlier stage of the project and describes the modifications to the proposed project from what was analyzed in the EIR. This analysis evaluates the adequacy of the earlier document pursuant to § 15162 of the California Environmental Quality Act (CEQA) Guidelines. The Environmental Checklist is included following this analysis. Analysis of the facts related to the project will form the basis for the City of Santa Ana to determine whether any changes in the project, any changes in circumstances or any new information since the MacArthur Place EIR was certified require additional environmental review or preparation of a subsequent or supplemental EIR. I. Aesthetics The EIR determined that implementation of the project would introduce additional light and glare impacts to the project area. Mitigation measures were incorporated to reduce potential impacts to a less than significant level. Would the project: a) Have a substantial adverse effect on a scenic vista? (No Substantial Change from Previous Analysis) A complete evaluation of the aesthetics effects of the project was considered in the MacArthur Place South Final Environmental Impact Report ("EIR"). Neither the project site nor the surrounding area is considered a scenic vista. The retaiUrestaurant uses previously approved will be replaced by a four-story (55 feet tall) 185-room hotel fronting MacArthur Boulevard. The articulation and elevation of the hotel building are shown in Exhibit 8 -North and South Hotel Elevations and Exhibit 9 -East and West Hotel Elevations. While this is an increase in height from the retail/restaurant use, the adjacent development, both on site and across Main and MacArthur Boulevard, includes high- rise development. As a result, no significant impacts related to scenic vistas will occur. The 5- to 6-story (60 foot high) Cinema Lofts were a part of the project analyzed in the EIR. These lofts are no longer a part of the project. The Cinema Tower will be re-located from its previous location, adjacent to the retail/restaurant component, south to its new location, where the Cinema Lofts were planned. This southerly shift in location places the Cinema Tower south of MacArthur Boulevard by approximately 174 feet from the previously approved location. The changes as a result of the City's action on this project are not more significant than what was identified in the EIR. MacArthur Place South EIR Addendum 25 75B-171 b) Substantially damage scenic resources, including, but not limited to, trees, rock outcroppings and historic buildings within a state scenic highway? (No Substantial Change from Previous Analysis) A complete evaluation of the aesthetics effects of the project was considered in the EIR. There are no scenic resources, thus the project will have no impact regarding scenic resources. c) Substantially degrade the existing visual character or quality of the site and its surroundings? (No Substantial Change from Previous Analysis) As depicted in the EIR, parking areas and pedestrian walkways will contain attractive landscaping treatments to enhance the open space areas. Trees and shrubbery will be used around the perimeter of the hotel, providing a softening of visual impacts at street level. Palm trees, Jacaranda and Pine trees will be planted along the perimeter of the hotel with palm trees planted at the front of the hotel. A number of trellises will be incorporated into the hotel along the south, east and west sides. The trellises will include landscaping with vines or floral vines for decorative purposes. The Jacaranda and Pine trees will serve as a buffer for the hotel along MacArthur Boulevard and along the east and west sides of the hotel. An updated landscape plan is included as Exhibit 10. The project incorporates landscaping around the hotel and adjacent to the Cinema Tower location. The proposed four-story hotel is compatible with the adjacent land uses. The North and South Lake Towers are 25 stories tall, the office buildings range in height from the 8 story buildings at 200 and 201 East Sandpointe Avenue to a 14 story building at 5 Hutton Centre Drive. There is also asix-story Doubletree Hotel south of the Lake Towers. The proposed addition of the hotel and deletion of the Cinema Lofts and retaiUcommercial square footage does change the visual character of the site beyond what was analyzed in the EIR. However, no significant changes to the existing visual character of the site will result from the project beyond those identified in the EIR because the proposed four-story hotel is consistent with the surrounding land uses. d) Create a new source of substantial light or glare that would adversely affect day or nighttime views in the area? (No Substantial Change from Previous Analysis) The exterior of the hotel will predominantly be covered by a stucco finish. Due to the developed nature of the project site and the existence of a hotel just north of MacArthur Boulevard, the proposed hotel is compatible with existing uses and is not expected to substantially increase light or glare. The following Mitigation Measure is proposed to reduce any potential impacts from light and glare: Mitigation Measure AE-1- Prior to issuance of building permits the project applicant shall ensure that building plans for the proposed project shall include the use of non- reflective building materials to minimize light and glare impacts. Implementation of Mitigation Measure AE-1 will reduce light and glare and will ensure that development of the project will have no more severe impacts beyond those addressed and mitigated in the EIR. MacArthur Place South EIR Addendum 26 75B-172 ~- ~ S, i ~ © .......~... ~ 9 ~ O ... .. .., a __ I ~. _.. ~~ o ~ ~+ u ++ ~ ~ -- f ~~ , u:l 1 r ~ ~ OOG'1t:~:N ~ r I~~ L ~e O ~ ~ d ® + -- ~ Q I -.1 lJ ~ ~~ ; ~ ~ ~~ 5~ O ~y_ ~ I Z a ~ O ~ _ i ~ ~ O ~ ~~ ~ I Y; O L ~''~ O ~ O ~€ =i _ 1. ~s ~p ~~ ~ O 4 d ~ $~ a d \ O ~ ~ ~~ ~ ~' gg ~3 -- ~ Q I' r ~ p} ^~LLI ~q{ ~I, O R i ~~ ~__~ ~ i O O ~~ ~~ z, _- ______....~ _.a b b ~ ~o~~o ~' I ~~ ~~ ~ o O o pp ~ m _ ~ _.,« E ~ O ct < O j~ '. c ~ ~ ~ B ~ 2 ~ ~ ~ ~ ~ ~F ~ N r O N IQ 1 W ~l Y Q t N C ~0 L O Z L W L J O ~ j d o c ~ m L O 1. o Q Q (0 ~_ ~ W 75B-173 75B-174 o~+p~ a~ u<1 29 o ~ ®~. 1 o ~ ~. ~Q ~ ~ ._;,. 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(~ ~'~,~ f T-r +~ ~ ~ . r ~. r!. ~~ € fir. ~ , ~ ~~ -- _ ~ ~ ~ r Y ~yy f ~ ~~ ~ ~'~ a P ~ ~ t ~' 3 1~ p ~i r r. ~'- Y 1 y fX T ~~ ~ ~{ 4 ~ ~z i ~ ~ 9 I, c R a a a V N C R J + O L X W M t 0 ~~ a~ c ~ d r~ t ~ QQ m ~ ~ ud 75B-177 75B-178 II. Air Quality The Air Quality analysis in the EIR was based on CEQA Guidelines thresholds. Short-term construction activity impacts exceeded significance thresholds for ROG due to the application of architectural coatings. Mitigation measures were included to minimize these unavoidable adverse impacts. The EIR analysis determined that project-related operational emissions will exceed the South Coast Air Quality Management District (SCAQMD) significance thresholds for CO, ROG and NOx primarily due to area source (consumer product) emissions. Mitigation measures were proposed to minimize the long-term unavoidable adverse impacts. Cumulative air quality impacts from the MacArthur Place South project were analyzed in the EIR and were determined to be significant and adverse when added to the existing non-attainment levels of the South Coast Air Basin. A statement of overriding considerations was adopted. Since the certification of the EIR, the state legislature passed AB 32 known as the Global Warming Solutions Act. This Addendum provides informa- tion related to greenhouse gas emissions impacts. An updated Trip Generation Evaluation (Traffic Evaluation), dated April 1, 2009, was prepared by Urban Crossroads. This evaluation is included herein as Appendix A. For purposes of air quality impacts, the Traffic Evaluation concludes that the elimination of the identified project components, the addition of the hotel and the conversion of the Lake Towers and low-rise Montage condominiums to apartment uses will result in a total of 83 fewer trips in the AM peak hour, 105 trips in the PM peak hour and 758 fewer trips on a daily basis. The revised project will result in less air quality impacts due to traffic emissions than the project approved in the EIR. a) Would the project conflict with or obstruct implementation of the applicable air quality plan? (No Substantial Change from Previous Analysis) Since the certification of the EIR, additional legislation requires the analysis of potential greenhouse gas (GHG) impacts due to development. State of California Assembly Bill 32 (AB 32), known as the Global. Warming Solutions Act, was passed in August 2006. AB 32 requires that levels of GHG be reduced to 1990 levels by the year 2020. There are currently no federal regulations on the reduction of GHG to reduce their effects on global climate changes. Senate Bill 97 (SB 97) requires that the Governor's Office of Planning and Research develop guidelines for CEQA compliance related to GHG emissions, including mitigation measures for the reduction of GHG. The guidelines are required to be prepared on or before July 1, 2009. Global climate change in the weather of the earth can be measured by wind patterns, storms, precipita- tion and temperature. Climatic factors are divided between those caused primarily by human activity (such as greenhouse gas emissions and aerosol emissions) and those caused by natural forces (such as solar irradiance). A primary cause of greenhouse gas emissions is the burning of fossil fuels. There is currently no single model that is capable of estimating all of a project's direct and indirect GHG emissions.' The California Air Pollution Control Officers Association whitepaper notes that one of the most consistently used models for emissions estimates is the Urban Emissions Model (URBEMIS).z The URBEMIS model was used in the EIR to assess emissions for the project. URBEMIS is designed to model emissions associated with development of urban land uses. URBEMIS attempts to summarize criteria air pollutants and COZ emissions that would occur during construction and operation of new development. This model was developed and approved by the California Air ~ California Air Pollution Control Officers Association, CEQA & Climate Change (Evaluating and Addressing Greenhouse Gas Emissions from Projects Subject to the California Environmental Quality Act), January 2008. 2 Ibid. MacArthur Place South EIR Addendum 33 75B-179 Resources Board (GARB) and ensures statewide consistency in how COZ emissions are modeled and reported from various project types. The URBEMIS model is the most effective tool for assessing COZ greenhouse gas emissions available to date. The EIR identified air quality impacts that would result from project implementation, both short-term construction and long-term operational. As detailed in the EIR, project-related operational emissions will exceed the SCAQMD significance thresholds for CO, ROG, and NOx primarily due to area source (consumer product) emissions. These are considered an unavoidable adverse impact. Additionally, construction activity impacts will exceed significance thresholds for ROG due to application of architectural coatings. The removal of the Cinema Lofts and the retaiUrestaurant uses, and addition of the hotel is not anticipated to either greatly alleviate or greatly increase project impacts from what was analyzed in the EIR. Thus, the project's impacts on air quality are anticipated to remain the same as the original project's impacts, which on a cumulative basis are significant and adverse. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. b) Would the project violate any air quality standard or contribute substantially to an existing or projected air quality violation? (No Substantial Change from Previous Analysis) The Air Quality Assessment in the EIR included projected COZ emissions for demolition, mass grading, fine grading, trenching, building construction, architectural coatings, and asphalt emissions. Construction and operational emissions are difficult to assess, given that no thresholds for greenhouse gases have been established. Typical thresholds are based on types of use, such as residential, office, or retail, and are further defined by such things as number of units and square footage. The project will include a construction phase during which heavy equipment will be used for demolition, grading, and construction. The construction schedule for the lofts, retail and restaurant portion of the previous project was 14 months for complete build out, and the construction schedule for the proposed project is anticipated to be the same. Short-term impacts in the area of greenhouse gases will be due to the use of heavy equipment. Short-term construction related impacts were limited to ROG emissions from architectural coatings. As detailed in the EIR, ROG emissions still exceed threshold levels even with the use of all available measures if all project paints and coating were applied in a single month. Thus, air quality impacts from construction of the proposed project will not change substantially from the previous analysis. As noted, in the EIR, the MacArthur Place South project will exceed thresholds for CO, ROG, and NOx in the long-term operational use. Long-term project-related impacts include exceeding the South Coast Air Quality Management District (SCAQMD) significance thresholds for CO, ROG, and NOx primarily due to area source (consumer product) emissions. The addition of the 185-room hotel will result in an increase in CO due to consumer product emissions by the hotel guests. The proposed reduction in unit size (removal of 15 units because the Cinema Lofts will not be built) could result in lower population estimates, which could reduce consumer use emissions. The EIR includes mitigation measures to reduce and minimize air quality impacts. The following Mitigation Measure is proposed in order to further minimize the incremental increase from greenhouse gases during construction of the hotel: Mitigation Measure AO-1 -During design and construction, the project developer shall incorporate features into the project that will minimize impacts from greenhouse gas emissions such as planting onsite trees as a means of providing carbon storage, promoting energy saving measures beyond Title 24 requirements, and encouraging the use of Energy Star equipment and appliances. MacArthur Place South EIR Addendum 34 75B-180 Implementation of Mitigation Measure AQ-1 will result in fewer operational emissions, resulting in no substantial change from the previous analysis in the area of greenhouse gases. c) Would the project result in a cumulatively considerable net increase of any criteria pollutant for which the prvject region is non-attainment under an applicable federal or state ambient air quality standard Including releasing emissions which exceed quantitative thresholds for ozone precursors? (No Substantial Change from Previous Analysis) The EIR identified cumulatively significant air quality impacts that would result from project implementation. The retaiUrestaurant component of project will be replaced by the 185-room hotel and the Cinema Lofts will no longer be built. In addition, revised total daily traffic estimates result in 758 fewer trips than the originally approved project, reducing air quality impacts due to traffic. Although changes to the project are proposed, no new or significant impacts will occur. Therefore, the EIR remains adequate and complete for this topic. d) Would the project expose sensitive receptors to substantial pollutant concentrations? (No Substantial Change from Previous Analysis) The EIR identified air quality impacts related to sensitive receptors with project implementation. No changes have occurred in this area from the analysis provided. Therefore, the EIR remains adequate and complete for this topic. e) Would the project create objectionable odors affecting a substantial number of people? (No Substantial Change from Previous Analysis) The EIR identified air quality impacts that would result from project implementation. The project involves the addition of a four-story hotel and removal of the Cinema Lofts and the retaiUrestaurant uses. If the hotel includes a restaurant, impacts would be substantially the same as the restaurant previously analyzed and now removed. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. III. Geology and Soils The EIR noted that the proposed project could be subject to potentially significant adverse geologic impacts. Mitigation measures were included to reduce impacts to a less than significant level. Would the project: a) Expose people or structures to potential substantial adverse effects, including the risk of loss, injury or death involving: i) Rupture of a known earthquake fault, as delineated on the most recent Alquist-Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial evidence of known fault? Refer to Division of Mines and Geology Special Publication 42 (No Substantial Change from Previous Analysis) The EIR included mitigation measures designed to minimize impacts due to the settlement potential and high moisture content of the soils. The proposed hotel will replace the retaiUrestaurant component of the project. The Cinema Lofts will be eliminated and the Cinema Tower will eventually be relocated south of the hotel. The hotel will have no different geological impacts from what was analyzed in the EIR. No changes have occurred in this area from the analysis provided in the EIR. The development of the project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. MacArthur Place South EIR Addendum 35 75B-181 ii) Strong seismic ground shaking? (No Substantial Change from Previous Analysis) The EIR included mitigation measures designed to minimize impacts due to strong seismic ground shaking. No changes have occurred in this area from the analysis provided in the EIR. The development of the project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. iii) Seismic-related ground failure, including liquefaction? (No Substantial Change from Previous Analysis) The EIR included mitigation measures designed to minimize impacts due to seismic-related ground failure. No changes have occurred in this area from the analysis provided in the EIR. The development of the project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. iv) Landslides? (No Substantial Change from Previous Analysis) The EIR included mitigation measures designed to minimize impacts due to landslides. No changes have occurred in this area from the analysis provided in the EIR. The development of the project will have no new or more severe impacts beyond those addressed and mitigated in the F,IR. b) Result in substantial soil erosion or the loss of topsoil? (No Substantial Change from Previous Analysis) The EIR included mitigation measures designed to minimize impacts due to soil erosion or loss of topsoil. The following Mitigation Measure is from the EIR and will reduce erosion. Mitigation Measure G-1 -During grading operations, the project applicant shall ensure special handling of on-site soils as required by the City of Santa Ana due to the high moisture content of the soils, which is well above optimum moisture conditions. The City of Santa Ana shall monitor the grading contractor to ensure stabilization of the soils during grading prior to placing and compacting fill soils over wet subgrade soils, as recommended in the geotechnical investigation prepared by Geotechnical Professionals, Inc. Implementation of mitigation measures in the EIR will reduce project impacts relating to erosion to a less than significant level. Thus, development of the project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. c) Be located on geologic unit or soil that is unstable or that would become unstable as a result of the project and potentially result in onsite or offsite landslide, lateral spreading, subsidence, liquefaction or collapse? (No Substantial Change from Previous Analysis) The EIR included mitigation measures designed to minimize impacts due to unstable soil. No changes have occurred in this area from the analysis provided in the EIR. The development of the project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. d) Be located on expansive soil as defined in Table 18-1-B of the Uniform Building Code (1994) creating substantial risks to life or property? (No Substantial Change from Previous Analysis) The EIR included mitigation measures designed to minimize impacts relating to expansive soil. No changes have occurred in this area from the analysis provided in the EIR. The development of the project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. MacArthur Place South EIR Addendum 36 75B-182 e) Have soils incapable of adequately supporting the use of septic tanks or alternative water disposal systems where sewers are not available for the disposal of water? (No Substantial Change from Previous Analysis) The EIR included mitigation measures designed to minimize impacts relating to geology and soils. The project will not include the use of septic systems or alternative water disposal systems. No changes have occurred in this area from the analysis provided in the EIR. The development of the project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. IV. Hazards and Hazardous Materials The EIR noted that the proposed project could be subject to potentially significant adverse hazards and hazardous materials impacts. Mitigation measures included in the EIR would reduce potential impacts to a level that would be less than significant. Would the project: a) Create a significant hazard to the public or the environment through the routine transport, use or disposal of hazardous materials? (No Substantial Change from Previous Analysis) A Phase I Preliminary Environmental Site Assessment and a Phase II Screening Subsurface Assess- ment were performed and discussed in the EIR. No changes have occurred in this area from that analysis. Therefore, the EIR as certified will remain adequate and complete for this topic. b) Create a significant hazard to the public or the environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment? (No Substantial Change from Previous Analysis) Neither the construction nor the operation of the proposed project will involve hazardous materials that might unwittingly be released into the environment. Therefore, there will be no impact due to the accidental release of such materials. The EIR as certified will remain adequate and complete for this topic. c) Emit hazardous emissions or handle hazardous or acutely hazardous materials, substances, or waste within one-quarter mile of an existing or proposed school? (No Substantial Change from Previous Analysis) The project involves the construction of a 185-room hotel, and no hazardous or acutely hazardous materials, substances, or waste will be emitted by the normal operation of the project. No changes have occurred in this area from the analysis provided in the EIR. The development of the project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. d) Be located on a site that is included on a list of hazardous materials sites compiled pursuant to Government Code Section 65962.5 and, as a result, would it create a significant hazard to the public or the environment? (No Substantial Change from Previous Analysis) The proposed site is not included on a list of hazardous materials sites and would not create a significant hazard to the public or the environment. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. MacArthur Place South EIR Addendum 37 75B-183 e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? (No Substantial Change from Previous Analysis) The nearest public use airport, John Wayne Airport, is approximately 1.1 miles from the site. The FAA previously issued two Determinations of No Hazard for two different locations of the Cinema Tower. As described in the Introduction, Section C, both Determinations have expired. The proposed relocation of the Cinema Tower will require a new aeronautical study by the FAA at a future time when the Cinema Tower is scheduled for construction. Mitigation Measure H-1 -Prior to the issuance of a building permit, the project developer shall provide evidence to the Planning Manager that an FAA Determination of No Hazard to Air Navigation has been obtained for the relocated Cinema Tower. The project developer shall demonstrate compliance with any conditions imposed by the FAA in their Determination. Implementation of the above mitigation measure will ensure that no new or more severe impacts beyond those addressed and mitigated in the EIR will occur. Therefore, the EIR remains complete and adequate as it relates to hazards. ~ For a project within the vicinity of a private airstrip, would the project result in a safety hazard for people residing or working in the project area? (No Substantial Change from Previous Analysis) The project is not located within the vicinity of a private airstrip and, therefore, would not expose people residing or working in the project area to a safety hazard. g) Impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan? (No Substantial Change from Previous Analysis) The construction of the proposed project will not produce any physical constraints or impair an adopted emergency response plan or an emergency evacuation plan. Standard conditions have been imposed regarding provision of fire access roads and fire lane markings as well as project review by the Fire Authority. As analyzed in the EIR, there will be no impact related to impairment of emergency response plans or emergency evacuation plans. h) Expose people or structures to a significant risk of loss, injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? (No Substantial Change from Previous Analysis) The EIR identified potential impacts in the area of hazards and hazardous materials that would result from project implementation. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. V. Hydrology and Water Quality Hydrology and water quality impacts due to short-term construction activities and long-term operation were identified in the EIR. Mitigation measures were included to reduce potential impacts to less than significant. Mitigation measures from the EIR are incorporated herein by reference and include HW-1 thru HW-11, which, per the EIR, reduced project impacts to a less than significant level. These mitigation measures will be implemented as part of the project and will reduce short-term construction and long-term operational impacts to a less than significant level. MacArthur Place South EIR Addendum 38 75B-184 a) Would the project violate any water quality standards or waste discharge requirements? (No Substantial Change from Previous Analysis) A Preliminary Hydrology Study of Existing and Proposed Conditions and a Water Quality Manage- ment Plan were prepared for the MacArthur Place South project. The EIR identified impacts to hydrology and water quality that would result from project implementation. Recommendations from the technical studies for hydrology and water quality will continue to be observed. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. b) Would the project substantially deplete groundwater supplies or interfere substantially with groundwater recharge? (No Substantial Change from Previous Analysis) No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. c) Would the project substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, in a manner which would result in substantial erosion or siltation on or off site? (No Substantial Change from Previous Analysis) The EIR identified impacts to the existing and proposed drainage for the proposed project and described the requirements to mitigate impacts to hydrology and water quality. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. d) Would the project substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner which would result in flooding on- or off-site? (No Substantial Change from Previous Analysis) The EIR identified impacts to hydrology and water quality that would result from project implementa- tion. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. e) Would the project create or contribute runoff water which would exceed the capacity of existing or planned stormwater drainage systems or provide substantial additional sources of polluted runoff? (No Substantial Change from Previous Analysis) The EIR identified impacts due to runoff that would result from project implementation. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. ~ Would the project otherwise substantially degrade water quality? (No Substantial Change from Previous Analysis) The EIR addressed potential impacts to water quality and included mitigation measures to reduce impacts. Mitigation Measures HW-1 through HW-11 included in the EIR are incorporated herein by reference and will be implemented to reduce impacts. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. g) Would the project place housing within a 100 year flood hazard area as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map? (No Substantial Change from Previous Analysis) The EIR identified impacts to hydrology and water quality that would result from project implementa- tion. The project is not located in a 100-year flood hazard area. No changes have occurred in this area MacArthur Place South EIR Addendum 39 75B-185 from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. h) Would the project place within a 100 year flood hazard area structures that would impede or redirect flood flows? (No Substantial Change from Previous Analysis) The EIR identified impacts related to flood hazards that would result from project implementation. The project is not located in a 100-year flood hazard area. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. i) Would the project expose people or structures to a significant risk of loss, injury or death involving flooding, including flooding as a result of the failure of a levee or dam? (No Substantial Change from Previous Analysis) The EIR identified impacts related to flooding that would result from project implementation. The project is not located in the vicinity of a levee or a dam. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. j) Inundation by seiche, tsunami or mudflow? (No Substantial Change from Previous Analysis) The EIR identified impacts related to inundation by seiche, tsunami, or mudflow that would result from project implementation. No changes have occurred in this area from the analysis provided in the EIR. Therefore, the EIR remains adequate and complete for this topic. VI. Land Use and Planning Would the project: a) Physically divide an established community? (No Substantial Change from Previous Analysis) The project site is comprised of an office park and as a result, no established community exists. Thus, the project will not physically divide an established community. Therefore, the EIR remains adequate and complete for this topic. b) Conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited to, the general plan, specific plan, local coastal program, or zoning ordinance adopted for the purpose of avoiding or mitigating an environmental effect? (No Substantial Change from Previous Analysis) The City's General Plan land use designation for the project site is District Center (DC), which specifically allows mixed-use development. Hotels are a permitted use in the DC designation. As detailed in the EIR, the project site underwent a zone change from General Commercial (C2) to the Specific Development (SD) zone. The project, as proposed, will have no new or more severe impacts beyond those addressed in the EIR. Therefore, the EIR remains adequate and complete. c) Conflict with any applicable habitat conservation plan or natural community conservation plan? (No Substantial Change from Previous Analysis) No habitat conservation or natural community conservation plan is applicable to the proposed project. The project will have no new or more severe impacts beyond those addressed in the EIR. Therefore, the EIR remains adequate and complete with respect to this topic. MacArthur Place South EIR Addendum 40 75B-186 VII. Noise As detailed in the EIR, construction operations would increase existing noise levels for the short term, and residential land uses would be subject to significant adverse long-term noise impacts. Mitigation measures were included in the EIR to reduce noise impacts to a less than significant level. Would the project result in: a) Exposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies? (No Substantial Change from Previous Analysis) The E[R identified short-term noise impacts from on-site demolition and construction activities. The primary source of construction noise is heavy equipment. The mitigation measures in the EIR reduced potentially significant short-term construction noise impacts to a less than significant level. The EIR identified long-term noise impacts as mobile source noise impacts from traffic, aircraft noise impacts from John Wayne Airport, and operational noise from the operation of the project components. However, the removal of the restaurant/retail and office/lofts component of the project, in addition to the conversion from condominium to apartment uses for the Lake Towers and the low-rise residential component, will reduce traffic by 758 daily trips. This is an additional benefit in conjunction with the mitigation measures in the EIR, which reduced potentially significant long-term noise impacts to a less than significant level. The addition of the hotel in the proposed project is anticipated to generate noise. However, implementation of the mitigation measures from the EIR and the additional mitigation measures in Section VII.c below will reduce impacts to a less than significant level. Development of the project will have no new or more severe impacts beyond those addressed in the EIR. Therefore, the EIR remains adequate and complete with respect to this topic. b) Exposure of persons to or generation of excessive groundborne vibration or groundborne noise levels? (No Substantial Change from Previous Analysis) Mitigation measures were identified to reduce noise impacts in the EIR. As detailed in the EIR, the Noise Study concluded that construction will generate excessive groundborne vibration or groundborne noise levels. However, because this will only occur during the construction phase of the project, the Noise Study concluded that this impact is not considered significant. Construction of the Cinema Lofts and the retaiUrestaurant component of the project have been eliminated and a 185-room hotel will be constructed in its place. Construction of the proposed hotel is expected to produce groundborne vibration or groundborne noise levels comparable to the retail/restaurant and the Cinema Lofts previously planned on site. Mitigation measures in the EIR will be implemented to reduce groundborne vibration/noise levels. These findings and the related mitigation measures from the EIR also apply to the proposed project. Development of the project will have no new or more severe impacts beyond those addressed in the EIR. Therefore, the EIR remains adequate and complete with respect to this topic. c) A substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project? (No Substantial Change from Previous Analysis) Operational noise impacts resulting from the retail/restaurant uses will no longer apply because the 8,580 square feet of restaurant and 5,291 square feet of retail development are no longer a part of the project. The hotel, which is a new component replacing the retail/restaurant uses, will be open 24 hours a day, 7 days a week. It is anticipated that noise will be comparable to that previously analyzed. In MacArthur Place South EIR Addendum 41 75B-187 order to ensure that no additional impacts result, the mitigation measures below are included to reduce noise impacts to a less than significant level. Mitigation Measure N-1 -During operation of the hotel, the project developer shall ensure that truck deliveries to the hotel shall be restricted to the hours of 7:00 a.m. to 10:00 p.m. Delivery trucks shall not be permitted to idle in the parking lots or loading areas and shall be required to have properly maintained, factory-approved mufflers. Delivery truck drivers shall be encouraged to minimize acceleration and maintain reduced vehicle speeds while on-site. Mitigation Measure N-2 -During project construction for the hotel, the project contractor shall verify that structural designs and acoustical baffling are implemented to reduce noise levels from mechanical equipment (ventilation fans, air conditioning, and refrigeration units and their associated inlet and exhaust systems) to a level that complies with the Ciry's Municipal Code noise ordinance standards reproduced in the table below (and also reproduced in the EIR). City of Santa Ana Exterior Noise Ordinance Standards Noise Level That May Not Be Daytime Night Exceeded for More Than 7:00 a.m. -10:00 p.m. 10:00 pm. - 7:00 a.m. 30 minutes in any hour 55 d6(A) 50 dB(A) 15 minutes in any hour 60 dB(A) 55 dB(A) 5 minutes in any hour 65 dB(A) 60 dB(A) 1 minute in any hour 70 d6(A) 65 d6(A) Any time 75 d6(A) 70 dB(A) Source: Section 18-312 of the City of Santa Ana Municipal Code Implementation of the above mitigation measures will ensure that no new or more severe impacts beyond those addressed and mitigated in the EIR will occur. Therefore, the EIR remains complete and adequate as it relates to noise. In regard to traffic noise impacts, the project as proposed will result in 758 fewer trips per day than the approved project. Noise impacts due to traffic will be less than originally analyzed. Therefore, the EIR remains adequate and complete with respect to noise impacts from traffic. d) A substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the project? (No Substantial Change from Previous Analysis) Development of the project will have no new or more severe impacts related to ambient noise levels beyond those addressed in the EIR. While certain components of the project are being removed, they are being replaced with similar uses in a mixed-use environment. Therefore, the EIR remains adequate and complete with respect to this topic. e) For a project located within an airport land use plan, or where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? (No Substantial Change from Previous Analysis) John Wayne Airport is approximately 1.1 miles south of the project site. However, the project site is outside of both Noise Impact Zones 1 and 2. Mitigation measures have been identified to reduce the potential to expose people residing or working in the project area to excessive noise levels. Develop- ment of the project will have no new or more severe impacts beyond those addressed in the EIR. Therefore, the EIR remains adequate and complete with respect to this topic. MacArthur Place South EIR Addendum 42 75B-188 ~ For a project within the vicinity of a private airstrip, would the project expose people residing or working in the project area to excessive noise levels? (No Substantial Change from Previous Analysis) Development of the project will have no new or more severe impacts beyond those addressed in the EIR. The project is not located in the vicinity of a private airstrip. Therefore, the EIR remains adequate and complete with respect to this topic. VIII. Population and Housing Would the project: a) Induce substantial population growth in an area; either directly (for example, by proposing new homes and businesses) or indirectly (for example through extension of roads or other infrastructure)? (No Substantial Change from Previous Analysis) The proposed project will result in fewer residential units than what was analyzed in the EIR because the Cinema Lofts will be not be built. The project will reduce the number of residential units analyzed in the EIR by 15. The proposed project will have no more severe impacts than analyzed in the EIR and the City's General Plan. Therefore, the EIR remains adequate and complete for this topic. b) Displace substantial number of existing housing, necessitating the construction of replacement housing elsewhere? (No Substantial Change from Previous Analysis) No existing housing will be disturbed with implementation of the proposed project, as none exists on the site. Development of the project will have no new or more severe impacts beyond those addressed in the EIR. Therefore, the EIR remains adequate and complete with respect to this topic. c) Displace substantial numbers of people, necessitating the construction of replacement housing elsewhere? (No Substantial Change from Previous Analysis) As noted in item b) above, no existing housing will be disturbed with implementation of the project. Therefore, the EIR remains adequate and complete with respect to this topic. IX. Public Services The EIR identified potential impacts to service providers as a result of the proposed project. However, measures were included to ensure that coordination would occur with public service providers to minimize any potential impacts from occurring. a) Would the project result in substantial adverse impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times or other performance objectives for any of the public services? Fire Protection? Police Protection? Schools? Parks? Other Public Facilities? (No Substantial Change from Previous Analysis) The proposed project will require fire, police, and emergency services. Mitigation Measures in the EIR were designed to minimize potential impacts to such services. The addition of the hotel will result in a potential increased need for such services. The Police and Fire Department were consulted regarding the proposed project and its potential impacts to Police, Fire and emergency services. Staff members in the City's Planning Division verified with the Police and Fire Departments in the City of Santa Ana that the addition of the 185 room hotel will not impact their services to the City. The EIR provides for coordination with public service providers to ensure their ability to serve the project. The project will MacArthur Place South EIR Addendum 43 75B-189 have no new or more severe impacts to fire, police, and emergency services beyond those addressed and mitigated in the EIR. Therefore, the EIR remains adequate and complete with respect to this topic. X. Recreation The EIR provides for the payment of Park Acquisition and Development Fees, parkland dedication or in-lieu fee payments to reduce impacts to recreation facilities. a) Would the project increase the use of existing neighborhood and regional parks of other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated? (7Vo Substantial Change from Previous Analysis) An evaluation of the impacts to recreation related to the project was presented in the EIR. As noted in the E[R, the proposed project will include on-site recreation amenities for residents of the condominiums. The proposed project reduces the number of residential units by 15. Additionally, the proposed project removes the Cinema Lofts analyzed in the EIR. The recreational amenities in the Cinema Lofts included an open-air amenity deck, a pool and outdoor area, a health spa, and a gym. Recreational amenities such as these will be provided in the Cinema Tower. The proposed hotel includes an activity lawn and spool/spa. The project will have no new or more severe impacts beyond those addressed in the EIR. Therefore, the EIR remains complete and adequate as it relates to this topic. b) Does the project include recreational facilities or require the construction or expansion of recreational facilities that might have an adverse physical effect on the environment? (No Substantial Change from Previous Analysis) As part of the proposed project, the hotel includes spool/spa and an activity lawn and, as mentioned above, recreational amenities will be provided in the Cinema Tower. The project will have no new or more severe impacts beyond those addressed in the EIR. Therefore, the EIR remains complete and adequate as it relates to this topic. XI. Transportation/Traffic A Traffic Study was prepared by Urban Crossroads in October 2003 and revised in October 2004 for the MacArthur Place South project. The EIR included analysis based on that study. Urban Crossroads has prepared a Trip Generation Evaluation (Traffic Evaluation) dated April I, 2009 for this Addendum analyzing traffic impacts resulting from the elimination of identified project components and the addition of a hotel component. The following traffic analysis is based on the 2009 Traffic Evaluation, which is included herein as Appendix A. The Traffic Evaluation incorporated trip generation rates from the recently published Institute of Transportation Engineer's (ITE) information report entitled "Trip Generation" (8`" Edition, 2008). The 2003/2004 Traffic Study incorporated trip generation rates from the 7`" Edition ITE Trip Generation Rates. The 2009 Traffic Evaluation notes that the only categories with rate changes are ITE code 850 (AM and PM peak hour) and ITE code 932 (PM peak hour). These rates are applied to supermarket and high turnover (restaurant) uses. The table below, Trip Generation Rates, identifies the rates used to calculate traffic generation for the proposed project. MacArthur Place South EIR Addendum 44 75B-190 Trip Generation Rates Peak Hour Trip Rates AM PM Land Use ITE Code Units In Out Total In Out Total Daily Residential condoltownhouse 230 DU 0.07 0.37 0.44 0.35 0.17 0.52 5.81 High rise res. condo/townhouse 232 DU 0.06 0.28 0.34 0.24 0.14 0.38 4.18 Mid-rise apartmentz 223 DU 0.09 0.21 0.30 0.23 0.16 0.39 4.68 High rise apartment 222 DU 0.08 0.22 0.30 0.21 0.14 0.35 4.20 Business hotel 312 occupied room 0.34 0.24 0.58 0.37 0.25 0.62 7.27 Movie theater w/o matinee 443 TSF nom3 nom nom 5.79 0.37 6.16 78.06 Single-tenant office building 715 TSF 1.6 0.20 1.80 0.26 1.47 1.73 11.57 Supermarket 850 TSF 2.19 1.40 3.59 5.36 5.14 10.50 102.24 High-turnover (sit down) restaurant 932 TSF 5.99 5.53 11.52 6.58 4.57 11.15 127.15 Source: ITE (Institute of Transportation Engineers) Trip Generation Manual, 8'h Edition, 2008. 1 DU =dwelling units, TSF =thousand square feet 2 Daily trip rate based on PM peak hour rate and PM peak to daily relationship for high rise apartments 3 Nom -nominal, near zero Would the project: a) Cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system (i. e., result in a substantial increase in either the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections)? (No Substantial Change from Previous Analysis) The EIR identified significant impacts due to the increase in traffic from the MacArthur Place South project. Mitigation Measures were included in the EIR to minimize the impacts. The 2009 Traffic Evaluation concluded that the proposed project, as detailed in this Addendum, would result in reduced trip generation for all timeframes evaluated. The reduction in traffic volumes is partly due to the analysis based on using the optional alternative for high- and low-rise apartment units rather than condominium units. The table below (Currently Approved Project Trip Generation Summary) details the currently approved project trip summary. Currently Approved Project Trip Generation Summary Peak Hour AM PM Land Use ITE Code Quantity Units In Out Total In Out Total Daily Condominium project (5-story) 230 276 DU 19 102 121 97 47 144 1,604 Lake Towers (high-rise condos) 232 349 DU 21 98 119 84 49 133 1,459 Cinema Tower condominiums 232 150 DU 9 42 51 36 21 57 627 Townhomes 230 15 DU 1 6 7 5 3 8 87 Office condos (single-tenant) 715 10 TSF 16 2 18 3 15 18 116 Retail 850 5.35 TSF 12 7 19 29 27 56 547 High-turnover (sit down) restaurant 932 8.55 TSF 51 47 98 56 39 95 1,087 Future use traffic total 129 304 433 310 201 511 5 527 Internal capture (5%) 6 15 21 16 10 26 276 Future use external traffic total 123 289 412 294 191 485 5,251 MacArthur Place South EIR Addendum 45 75B-191 Peak Hour AM PM Land Use ITE Code Quantity Units' In Out Total In Out Total Daily Existing uses demolished Theater (20% utilization of 40 TSF)z 443 8.0 TSF 0 0 0 46 3 49 624 Restaurant (sports grill)3 932 12.0 TSF 0 0 0 79 55 134 1,526 Existing traffic total -- -- -- 0 0 0 125 58 183 2,150 Net new traffic total (future external -existing) 123 289 412 169 133 302 3,101 Source: ITE (Institute of Transportation Engineers) Trip Generation Manual, 8~h Edition, 2008. 1 DU =dwelling units, TSF =thousand square feet 2 Theater utilization of 20% full occupancy at the time traffic counts were conducted. 3 Sports grill assumed to generate no AM peak hour traffic. The table below (Proposed Project Trip Generation Summary) details the proposed project trip generation summary based on the current ITE Trip Generation Manual. Proposed Project Trip Generation Summary Peak Hour AM PM Land Use ITE Code Quantity Units In Out Total In Out Total Daily Condominium project (5-story) 230 276 DU 25 58 83 63 44 107 1,292 Lake Towers (high-rise condos) 222 349 DU 28 77 105 73 49 122 1,466 Cinema Tower condominiums 232 150 DU 9 42 51 36 21 57 627 Business hotel 312 185 occupied rm 63 44 107 68 46 114 1,345 future use traffic total 125 221 346 240 160 400 4,370 Internal capture (5%) 6 11 17 12 8 20 237 Future use external traffic total 119 210 329 228 152 380 4,493 Existing uses demolished Theater (20% utilization of 40 TSF)z 443 8.0 TSF 0 0 0 46 3 49 624 Restaurant (sports grill)3 932 12.0 TSF 0 0 0 79 55 134 1,526 Existing traffic total -- - -- 0 0 0 125 58 183 2,150 Proposed project net new traffic total (future external -existing) 119 210 329 103 94 197 2,343 Currently approved project net new traffic total 123 289 412 169 133 302 3,101 Difference (Proposed -Approved) -4 -79 -83 -66 -39 -105 -758 Source: ITE (Institute of Transportation Engineers) Trip Generation Manual, 8~' Edition, 2008. 1 DU =dwelling units, TSF =thousand square feet 2 Theater utilization of 20% full occupancy at the time traffic counts were conducted. 3 Sports grill assumed to generate no AM peak hour traffic. As shown in the tables above, impacts due to traffic would be reduced with the proposed project. Therefore, the EIR remains complete and adequate as it relates to traffic, and the project, as currently proposed, would not result in an increase in the number of vehicle trips, the volume-to-capacity ratio on roads, or congestion at intersections. b) Exceed, either individually or cumulatively, a level of service standard established by the county congestion management agency for designated roads or highways? (No Substantial Change from Previous Analysis) The E[R addressed traffic impacts to surrounding streets and freeways. Mitigation measures were included to reduce impacts. Fair share contributions towards proposed improvements will reduce impacts to a less than significant level. The proposed project will result in fewer daily trips than the project as analyzed in the EIR, and no new or more significant impacts will occur. Therefore, the EIR MacArthur Place South EIR Addendum 46 75B-192 remains complete and adequate in regards to analysis of exceeding, either individually or cumulatively, levels of service established by the county congestion management agency. c) Result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that results in substantial safety risks? (No Substantial Change from Previous Analysis) No change in air traffic patterns will occur as a result of the proposed project. Therefore, the EIR remains complete and adequate as it relates to this topic. d) Substantially increase hazards due to a design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g. farm equipment)? (No Substantial Change from Previous Analysis) The analysis in the EIR considered traffic impacts on the existing streets within the project site and in the surrounding area. No design features or incompatible uses are proposed that would substantially increase hazards. Therefore, the EIR remains adequate and complete for this topic. e) Result in inadequate emergency access? (No Substantial Change from Previous Analysis) Emergency access exists within the development area of the proposed project, and no changes or modifications are proposed in this Addendum. Therefore, the EIR remains complete and adequate as it relates to emergency access. ~ Result in inadequate parking capacity? (No Substantial Change from Previous Analysis) Parking requirements were analyzed in the EIR, and provision was made for the required amount of parking for all components of the project. To accommodate the proposed hotel included in this Addendum, a total of 615 parking spaces will be provided comprised of a combination of spaces in the existing parking structure and surface parking lot until the Cinema Tower is constructed. When the Cinema Tower is constructed, a new parking structure will be built to meet the parking needs of the hotel and the Cinema Tower. No new parking impacts will occur with implementation of the proposed project. Therefore, the EIR remains complete and adequate for the provision of required parking. g) Conflict with adopted policies, plans or programs supporting alternative transportation (e.g. bus turnouts, bicycle racks)? (No Substantial Change from Previous Analysis) The proposed project will not conflict with adopted policies, plans or programs supporting alternative transportation. Therefore, the EIR remains complete and adequate as it relates to this topic. XII. Utilities and Service Systems The retail/restaurant and the Cinema Lofts components of the previously approved project will be removed, and the hotel will replace the retail and restaurant uses. The Cinema Lofts location will eventually accommodate the relocated Cinema Tower. The City of Santa Ana has confirmed that a 12-inch sewer main has recently been constructed that will meet the sewer needs of the proposed hotel. Additionally, as detailed below, staff in the City's Public Works Department has also indicated that adequate water infrastructure exits to support the project. The technical reports prepared for the EIR were relied upon to calculate the proposed project's impacts on water and sewer demand. Please see Sections XII.b and XII.d below for an analysis of water and sewer demand compared to the previously approved project. a) Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board? (No Substantial Change from Previous Analysis) The addition of the 185-room hotel and removal of the retail/restaurant and Cinema Lofts are not anticipated to exceed wastewater treatment requirements. Please refer to Sections XII.b and XII.d MacArthur Place South EIR Addendum 47 75B-193 below. Mitigation measures were designed to minimize potential impacts to utilities and service systems. The project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. b) Require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? (No Substantial Change from Previous Analysis) Mitigation measures were designed to minimize potential impacts to utilities and service systems. As detailed in correspondence with the City of Santa Ana Planning Division and Public Works Agency, the proposed hotel project sewer discharge need will be addressed by a new 12" sewer main that was recently constructed in MacArthur Place. More than adequate water and sewer infrastructures have been constructed by the project applicant at the proposed hotel project frontage to meet the project's water and sewer needs. The data from the Walden and Associates Domestic Sewer Technical Report for MacArthur Place dated March 3, 2004 and revised January 14, 2005 was utilized to calculate the proposed project impacts on sewer demands. The following components will not be a part of the proposed project: retail, restaurant, and commercial/residential components of the Cinema Lofts. The sewer demand calculation for those uses is detailed below. The table illustrates that the land uses eliminated will result in a reduction in sewer demand of 6,154 gallons per day. Reduction in Sewer Demand Square Feet Demand Demand Land Use (SF)/Units (du) Coefficient (gallonslday) Cinema Site Commercial 10,000 SF 50 glksfld 500 (Cinema Lofts) Cinema Site Residential 15 DU 215 g/d/du 3,225 (Cinema Lofts) Restaurant 8,590 SF 175 g/ksf/d 1,503 Retail 5,291 SF 175 glksfld 926 Total -- -- 6,154 The project proposes to add a 185-room hotel. As detailed in the Domestic Sewer Technical Report for MacArthur Place, the Doubletree Hotel had a demand coefficient of 150 g/d/rm. This same demand coefficient was used to calculate the proposed hotel's sewer demand, as detailed in the table below. Sewer Demand of Proposed Hotel Demand Demand Land Use Rooms Coefficient (gallonslday) Proposed hotel 185 150 g/d/rm 27,750 As detailed in the EIR, the wastewater demand for the previous project was 282,608 gallons per day. The table below illustrates the increase in sewer demand for the proposed project. MacArthur Place South EIR Addendum 48 75B-194 Updated Sewer Demand Increase in Sewer Demand from the Proposed Project Wastewater Demand Gallons per Day (gallons per day) Previous wastewater demand 282,608 (per EIR) Reduction in sewer demand from -6,154 304,204 -282 608 removed project components . 21,596 Additional sewer demand from +27,750 185-room hotel Total updated sewer demand 304,204 As detailed in the table above, the reduction in sewer demand from the removed project components, plus the addition in sewer demand from the proposed hotel, result in an updated sewer demand of 304,204 gallons per day. The proposed project will increase the sewer demand by 21,596 gallons per day compared to the previous project. The City has indicated that the proposed hotel project sewer discharge need will be addressed by a new 12" sewer main, which has recently been constructed. As detailed in the Domestic Sewer Technical Report for MacArthur Place, a 12" line has a flow rate of 0.405 million gallons per day (MGD). The project, as addended, would result in a sewer demand of 304,204 gallons a day, which is less than .0405 million gallons per day capacity. The project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. c) Require or result in the construction of new storm water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? (No Substantial Change from Previous Analysis) As detailed in the EIR, the previous project was to be entirely developed with impermeable surfaces. The proposed project will also be entirely developed with impermeable surfaces. Thus, no adverse impact on the existing storm water drainage facilities is anticipated because the project as proposed will not significantly differ in terms of runoff from the project analyzed in the EIR. The project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. d) Have sufficient water supplies available to serve the project from existing entitlements and resources or are new or expanded entitlements needed? (No Substantial Change from Previous Analysis) Mitigation Measures were designed to minimize potential impacts to utilities and service systems. The project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. As detailed in the EIR, the City of Santa Ana Water Department provides water service to the MacArthur Place South project area. The data from the Walden and Associates Domestic Water Technical Report for MacArthur Place (Amendment No. 1) dated March 3, 2004 and Amended November 19, 2004 was utilized to calculate the proposed project impacts on water demand. The following components will not be a part of the proposed project: retail, restaurant, and commerciaUresidential components of the Cinema lofts. The water demand calculation for those uses is detailed below. As identified in the table below, the land uses eliminated will result in a reduction in water demand of 7,504 gallons per day. MacArthur Place South EIR Addendum 49 75B-195 Reduction in Water Demand Square Feet (SF) Demand Demand Land Use (Units (du) Coefficient (gallonslday) Cinema Site Commercial 10,000 SF 60 g/ksf/d 600 (Cinema Lofts) Cinema Site Residential 15du 275 gId/du 4,125 (Cinema Lofts) Restaurant 8,590 SF 220 g/ksfld 1,890 Retail Total 5,291 SF 220 g/ksf/d 1,164 -- 7,779 The project proposes to add a 185-room hotel. As detailed in the Amended Domestic Water Technical Report for MacArthur Place the Doubletree hotel had a demand coefficient of 180 g/d/rm. This same demand coefficient was used to calculate the proposed hotel's water demand, as detailed in the table below. Water Demand of Proposed Hotel Demand Demand Land Use Rooms Coefficient (gallonslday) Proposed Hotel 185 180 g/d/rm 33,300 Updated Water Demand Increase in Water Demand from the Proposed Project Water Demand Gallons per Day (gallons per day) Previous water demand (per EIR) 354,535 Reduction in water demand from removed project components Additional water demand from 185-room hotel Total updated water demand -7,779 380,056 -354.535 +33,300 25,521 380,056 As detailed in the table above, the reduction in water demand from the removed project components plus the additional water demand from the proposed hotel result in an updated water demand of 380,056 gallons per day. The proposed project will increase the water demand by 25,521 gallons per day compared to the previous project. The updated water demand of 380,056 gallons per day converts to 426 acre feet per year, which is an increase of 29 acre feet per year compared to the previous project. As detailed in correspondence with the City of Santa Ana Planning Division and Public Works Agency, more than adequate water and sewer infrastructures, and services and laterals, have been constructed at the proposed hotel project frontage that can meet the project's water and sewer needs. A Sewer Study will not be necessary. Four 1-inch water meters, one 2-inch water meter, and a 6-inch sewer lateral are available at the project's frontage in MacArthur Boulevard. A 6-inch water vault and meter and an 8-inch fire service are also available. Additionally, as detailed in the EIR, at 2020, the City's overall water production would be 55,370 acre feet per year. Between 2010 and 2020 the City's water production would increase by 2,410 acre-feet per year. The increased amount of water production between 2006 and 2020 would accommodate the increased water demand generated by the MacArthur Place South EIR Addendum 50 75B-196 project and the projected build out of the City's current General Plan. The project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. e) Result in a determination by the wastewater treatment provider, which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? (No Substantial Change from Previous Analysis) Mitigation measures were designed to minimize potential impacts to utilities and service systems. As detailed in the EIR, the previous project would not result in wastewater generation that would exceed the design capacity of the Orange County Sanitation District's (OCSD) Reclamation Plant No. 1. It is anticipated that OCSD would be able handle wastewater from the proposed 185-room hotel. However, if Plant No. 1 is operating at capacity, wastewater flows would be diverted to Reclamation Plant No. 2 in Huntington Beach. Thus, the proposed project would not result in a need to expand or construct a new wastewater treatment plan. The project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. ~ Be served by a landfill with sufficient permitted capacity to accommodate the project's solid waste disposal needs? (No Substantial Change from Previous Analysis) Mitigation measures were designed to minimize potential impacts to utilities and service systems. As detailed in the EIR, the project as previously proposed would have a solid waste disposal demand of 6,424 pounds per day. The change in solid waste based on the hotel and the removal of the Cinema Lofts and the 13,872 square foot retail/restaurant component is not expected to be significant. The identified daily capacity available at the Bowerman landfill is adequate to support the potential increase. Mitigation Measure U-1 -Prior to issuance of building permits, the project developer shall ensure that the building plans for the hotel shall incorporate facilities for collection and pick-up of recyclable materials. Implementation of the above mitigation measure will ensure that no new or more severe impacts beyond those addressed and mitigated in the EIR will occur. Therefore, the EIR remains complete and adequate as it relates to utilities and service systems. g) Comply with federal, state, and local statutes and regulations related to solid waste? (No Substantial Change from Previous Analysis) The solid waste generated by the hotel will not violate federal, state, and local statutes and regulations related to solid waste. A trash enclosure is included on the northern side of the hotel. Mitigation measures were designed and included in the EIR to minimize potential impacts to utilities and service systems. The project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. XIII. Mandatory Findings of Significance a) Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal, or eliminate important examples of the major periods of California history or prehistory? (No Substantial Change from Previous Analysis) Impacts to the environment were analyzed in the MacArthur Place South EIR. Due to the location of the project on a previously developed, urbanized site, no impacts to biological resources will occur. The proposed project will not degrade the quality of the environment or substantially reduce the habitat MacArthur Place South EIR Addendum 51 75B-197 or endanger a fish, wildlife, or plant species. Therefore, the EIR, as addended, remains adequate and complete. b) Does the project have impacts that are individually limited, but cumulatively considerable? ("Cumulatively considerable " means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects)? (No Substantial Change from Previous Analysis) The EIR stated that the project would contribute cumulatively significant adverse emissions to the South Coast Basin, which is already anon-attainment area. This impact is significant and adverse and cannot be mitigated to levels of insignificance. The EIR also stated that the project would have cumulative impacts regarding transportation and traffic due to the uncertainty and issues regarding fair- share funding for mitigation measure T-6, regarding the construction of a two-lane metered on-ramp to the SR-55 freeway. Due to the uncertainty of implementation, cumulative impacts were considered for the year 2025. The project will have no new or more severe impacts beyond those addressed and mitigated in the MacArthur Place South EIR. c) Does the project have environmental effects that will cause substantial adverse effects on human beings, either directly or indirectly? (No Substantial Change from Previous Analysis) Mitigation measures have been provided in the MacArthur Place South EIR to reduce impacts. The project will have no new or more severe impacts beyond those addressed and mitigated in the EIR. MacArthur Place South EIR Addendum 52 75B-198 Conclusion This document constitutes the Addendum to the MacArthur Place South Final Environmental Impact Report SCH 2004061140 (EIR) as adopted and certified by the City of Santa Ana. This document complies with all relevant California Environmental Quality Act (CEQA) standards to determine if the EIR remains adequate to address the impacts resulting from the proposed project pursuant to CEQA Guidelines § 15164. Approval of the Addendum by the City will not require circulation of the document for public review. (CEQA Guidelines § 15164) The Addendum will be included as part of the Final Environmental Impact Report. No changes or modifications are proposed to the original project that would require major revisions to the EIR. Additional mitigation measures are provided in the Addendum to reduce impacts from the project to a less than significant level. No new information of substantial importance or new significant impacts will result from the conversion of originally entitled uses described above to the hotel and the previously approved project consistent with CEQA Section 15064. Based on the analysis herein, the MacArthur Place South EIR remains adequate and complete for the project modifications discussed in this Addendum. The Addendum will require approval by the City of Santa Ana Planning Commission and City Council. In taking action on the Addendum the City, as Lead Agency, must consider the whole of the data presented in the MacArthur Place South Final EIR and this Addendum to the EIR. No additional approvals are necessary. Pursuant to CEQA §21166 and § 15162, there is no evidence that the project or its underlying circumstances have changed in a way that exposes new or more severe impacts than those reported in the MacArthur Place South Final Environmental Impact Report as addended. Furthermore, there is no new information that indicates project alternatives or mitigation measures previously found infeasible are now feasible or have not been accepted and incorporated into the project. Therefore, reliance on the Final Environmental Impact Report as addended will still provide the public and decision makers with all information necessary to evaluate the plan from an environmental perspective. MacArthur Place South EIR Addendum 53 75B-199 Inventory of Applicable Mitigation Measures In adopting the Final EIR, the City's findings and resolutions contained 76 mitigation measures based on refinements and revisions made to the mitigation measures presented in the DEIR. The 76 mitigation measures were incorporated in the certified resolution. All mitigation measures and conditions will either be met in development or are a requirement of City ordinance. Each of these conditions, policies, and mitigation measures will be reviewed during the normal Site Plan review process. Additionally, uniformly applied policies and standards generated to ensure substantial mitigation of environmental effects are applied as conditions of approval or as routine steps in the development process. A Mitigation Monitoring Program has been adopted as part of the approval process to ensure methods, timing, and responsible parties to monitor all mitigation measures. Further refinements in Mitigation Monitoring are hereby included in the MacArthur Place South EIR Addendum to provide more specific descriptions of activities/improvements to ensure no significant impacts from the proposed project will result. These clarifications are summarized below: Mitigation Measure AE-1- Prior to issuance of building permits the project applicant shall ensure that building plans for the proposed project shall include the use of non-reflective building materials to minimize light and glare impacts. Mitigation Measure AQ-1 -During design and construction, the project developer shall incorporate features into the project that will minimize impacts from greenhouse gas emissions such as planting onsite trees as a means of providing carbon storage, promoting energy saving measures beyond Title 24 requirements and encouraging the use of Energy Star equipment and appliances. Mitigation Measure G-1 -During grading operations, the project applicant shall ensure special handling of on-site soils as required by the City of Santa Ana, due to the high moisture content of the soils, which is well above optimum moisture conditions. The City of Santa Ana shall monitor the grading contractor to ensure stabilization of the soils during grading prior to placing and compacting fill soils over wet subgrade soils, as recommended in the geotechnical investigation prepared by Geotechnical Professionals, Inc. Mitigation Measure H-1 -Prior to the issuance of a building permit, the project developer shall provide evidence to the Planning Manager that an FAA Determination of No Hazard to Air Navigation has been obtained for the relocated Cinema Tower. The project developer shall demonstrate compliance with any conditions imposed by the FAA in their determination. Mitigation Measure N-1 -During operation of the hotel, the project developer shall ensure that truck deliveries to the hotel shall be restricted to the hours of 7:00 a.m. to 10:00 p.m. Delivery trucks shall not be permitted to idle in the parking lots or loading areas and shall be required to have properly maintained, factory-approved mufflers. Delivery truck drivers shall be encouraged to minimize acceleration and maintain reduced vehicle speeds while on-site. Mitigation Measure N-2 -During project construction for the hotel, the project contractor shall verify that structural designs and acoustical baffling are implemented to reduce noise levels from mechanical equipment (ventilation fans, air conditioning, and refrigeration units and their associated inlet and exhaust systems) to a level that complies with the City's Municipal Code noise ordinance standards reproduced in the table below (and also reproduced in the EIR). MacArthur Place South EIR Addendum 54 75B-200 City of Santa Ana Exterior Noise Ordinance Standards Noise Level That May Not Be Daytime Night Exceeded for More Than 7:00 a.m. -10:00 p.m. 10:00 pm. - 7:00 a.m. 30 minutes in any hour 55 dB(A) 50 d6(A) 15 minutes in any hour 60 d6(A) 55 d6(A) 5 minutes in any hour 65 d6(A) 60 dB(A) 1 minute in any hour 70 dB(A) 65 dB(A) Any time 75 dB(A) 70 dB(A) Source: Section 18-312 of the City of Santa Ana Municipal Code Mitigation Measure U-1 -Prior to issuance of building permits, the project developer shall ensure that the building plans for the hotel shall incorporate facilities for collection and pick-up of recyclable materials. MacArthur Place South EIR Addendum 55 75B-201 75B-202 Environmental Checklist For CEQA Compliance 1. Project Tltle: Expanded Initial Study and Addendum to EIR for MacArthur Place South - SCN 2009061140 2. Lead Agency Name/Address: city of Santa Ana 20 Civic Center Plaza Santa Ana, California 92702 3. Contact Person/Phone No.: Vince Fregoso / (714) 667-2713 4. Project Location: Southeast Corner of Main St. and MacArthur Blvd. Santa Ana, California 5. Project Sponsor Name/Address: Nexus Development Companies 6. General Plan Designation: District center 7. ZOning: Specific Development (76) 8. Description of Project: (Describe the whole action involved, including but not limited to later phases of the project, and any secondary, support, or off-site features necessary for its implementation. Attach additional sheets if necessary.) The project involves the addition of a four story, 185-room hotel and the removal of the Cinema Lofts (10,000 square feet of commercial office use and 15 units) and 13,871 square foot retail building consisting of 8,580 square feet of restaurant space and 5,290 square feet of retail. The Cinema Towers building will be moved south of its previous location (analyzed in the EIR). 9. Surrounding Land Uses and Setting: (Briefly describe the project's surroundings.) The project site is located at the southeast corner of MacArthur Boulevard and Main Street in southeast Santa Ana. East of the site is the Costa Mesa Freeway (SR-55), south and east of the site is the City of Irvine and the City of Costa Mesa is located to the southwest. John Wayne Airport is approximately 1.1 miles south of the project site. Surrounding land uses include residential, office and commercial/retail. 10. Other public agencies whose approval is required (e.g., permits, financing approval, or participation agreement.) None. MacArthur Place South EIR Addendum 57 75B-203 Environmental Factors Potentially Affected: The environmental factors checked below would be potentially affected by that project, involving at least one impact that is a "Potentially Significant Impact" as indicated by the checklist on the following pages. ^ Aesthetics ^ ^ Agricultural Resources ^ ^ Air Quality ^ ^ Biological Resources ^ ^ Cultural Resources ^ ^ Geology /Soils ^ ^ Hazards and Hazardous Materials ^ ^ Hydrology /Water Quality ^ ^ Land Use /Planning Mineral Resources Noise Population /Housing Public Services Recreation Transportation /Traffic Utilities /Service Systems Mandatory Findings of Significance Environmental Determination (to be completed by the Lead Agency) On the basis of this initial evaluation: ^ I find that the proposed project COULD NOT have a significant effect on the environment and a NEGATIVE DECLARATION will be prepared. ^ I find that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because revisions to the project have been made by or agreed to by the applicant. A MITIGATED NEGATIVE DECLARATION will be prepared. ^ I find that the proposed project MAY have a significant effect on the environment and an ENVIRONMENTAL IMPACT REPORT is required. ^ I find that the proposed project MAY have a "potentially significant impact" or "potentially significant unless mitigated" impact on the environment, but at least one effect 1) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on the attached sheets. An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed. ® I find that although the proposed project could have a significant effect on the environment, because all potentially significant effects 1) have been analyzed adequately in an earlier EIR or NEGATIVE DECLARATION pursuant to applicable standards, and 2) have been avoided or mitigated pursuant to that earlier EIR or NEGATIVE DECLARATION, including revisions or mitigation measures that are imposed upon the proposed project, nothing further is required. Signature Date Printed Name For MacArthur Place South EIR Addendum 58 75B-204 Evaluation of Environmental Impacts: 1. A brief explanation is required for all answers except "No Substantial Change from Previous Analysis" answers that are adequately supported by the information sources a lead agency cites in the parentheses following each question. A "No Substantial Change from Previous Analysis" answer is adequately supported if the referenced information sources show that the impact simply does not apply to projects like the one involved (e.g., the project falls outside a fault rupture zone). A "No Substantial Change from Previous Analysis" answer should be explained where it is based on project-specific factors as well as general standards (e.g., the project will not expose sensitive receptors to pollutants, based on aproject-specific screening analysis). 2. All answers must take account of the whole action involved, including off-site as well as on-site, cumulative as well as project-level, indirect as well as direct, and construction as well as operational impacts. 3. Once the lead agency has determined that a particular physical impact may occur, then the checklist answers must indicate whether the impact is a "New Significant Impact," a "More Severe Impact," or "No Substantial Change from Previous Analysis." "More Severe Impacts" is appropriate if there is substantial evidence that an effect may be significant. If one or more entries are "New Significant Impacts" or "More Severe Impacts" when the determination is made, an EIR is required. 4. "No Substantial Change from Previous Analysis" applies where the incorporation of mitigation measures has reduced an effect from "New Significant Impacts" or "More Severe Impacts" to "No Substantial Change from Previous Analysis". The lead agency must describe the mitigation measures, and briefly explain how they reduce the effect to a less than significant level (mitigation measures from Section XVII, "Earlier Analysis," may be cross-referenced). 5. Earlier analyses may be used where, pursuant to the tiering, program EIR, or other CEQA process, an effect has been adequately analyzed in an earlier EIR or negative declaration. Section 15063(c)(3)(D). In this case, a brief discussion should identify the following: a. Earlier Analysis Used. Identify and state where they are available for review. b. Impacts Adequately Addressed. Identify which effects from the above checklist were within the scope of and adequately analyzed in an earlier document pursuant to applicable legal standards, and state whether such effects were addressed by mitigation measures based on the earlier analysis. c. Mitigation Measures. For effects that are "No Substantial Change from Previous Analysis," describe the mitigation measures that were incorporated or refined from the earlier document and the extent to which they address site-specific conditions for the project. 6. Lead agencies are encouraged to incorporate into the checklist references to information sources for potential impacts (e.g., general plans, zoning ordinances). Reference to a previously prepared or outside document should, where appropriate, include a reference to the page or pages where the statement is substantiated. 7. Supporting Information Sources: A source list should be attached, and other sources used or individuals contacted should be cited in the discussion. 8. This is only a suggested form, and lead agencies are free to use different formats; however, lead agencies should normally address the questions from this checklist that are relevant to a project's environmental effects in whatever format is selected. 9. The explanation of each issue should identify: a. the significance criteria or threshold, if any, used to evaluate each question; and b. the mitigation measure identified, if any, to reduce the impact to less than significance MacArthur Place South EIR Addendum 59 75B-205 No Substantial New Change from Issues Significant More Severe Previous Impacts Impacts Analysis I. Aesthetics -Would the project: a. Have a substantial adverse effect on a scenic vista? ^ ^ b. Substantially damage scenic resources, including but not limited to, trees, rock ^ ^ outcroppings and historic buildings within a state scenic highway? c. Substantially degrade the existing visual character or quality of the site and its ^ ^ surroundings? d. Create a new source of substantial light or glare that would adversely affect day ^ ^ or nighttime views in the area? II. Air Quality -Where available, the significance criteria established by the applicable air quality management or pollution control district maybe relied upon to make the following determinations. Would the project: a. Conflict with or obstruct implementation of applicable air quality plan? ^ ^ b. Violate any air quality standard or contribute substantially to an existing or ^ ^ projected air quality violation? c. Result in a cumulatively considerable net increase of any criteria pollutant for ^ ^ which the project region is non-attainment under an applicable federal or state ambient air quality standard (including releasing emissions which exceed quantitative thresholds for ozone precursors)? d. Expose sensitive receptors to substantial pollutant concentrations? ^ ^ e. Create objectionable odors affecting a substantial number of people? ^ ^ III. Geology and Soils -Would the project: a. Expose people or structures to potential substantial adverse effects, including the risk of loss, injury, or death involving: i. Rupture of a known earthquake fault, as delineated on the most recent ^ ^ Alquist-Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial evidence of a known fault? Refer to Division of Mines and Geology Special Publication 42. ii. Strong seismic ground shaking? ^ ^ iii. Seismic-related ground failure, including liquefaction? ^ ^ iv. Landslides? ^ ^ b. Result in substantial soil erosion or the loss of topsoil? ^ ^ c. Be located on a geologic unit or soil that is unstable, or that would become ^ ^ unstable as a result of the project, and potentially result in on- or off-site landslide, lateral spreading, subsidence, liquefaction, or collapse? d. Be located on expansive soil, as defined in Table 18-1-B of the Uniform Building ^ ^ Code (1994), creating substantial risks to life or property? e. Have solid incapable of adequately supporting the use of septic tanks or ^ ^ alternative waste water disposal systems where sewers are not available for the disposal of waste water? IV. Hazards and Hazardous Materials -Would the project: a. Create a significant hazard to the public or the environment through the routine ^ ^ transport, use, or disposal of hazardous materials? b. Create a significant hazard to the public or the environment through reasonably ^ ^ foreseeable upset and accident conditions involving the release of hazardous materials into the environment? c. Emit hazardous emissions or handle hazardous or acutely hazardous materials, ^ ^ substances, or waste within one-quarter mile of an existing or proposed school? d. Be located on a site that is included on a list of hazardous materials sites ^ ^ compiled pursuant to Government Code §659662.5 and, as a result, would it create a significant hazard to the public or the environment? e. For a project located within an airport land use plan or, where such a plan has not ^ ^ been adopted, within two miles where of a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? MacArthur Place South EIR Addendum 60 75B-206 No Substantial New Change from Significant More Severe Previous Issues Impacts Impacts Analysis f. For a project within the vicinity of a private airstrip, would the project result in a ^ ^ safety hazard for people residing or working in the project area? g. Impair implementation of or physically interfere with an adopted emergency ^ ^ response plan or emergency evacuation plan? h. Expose people or structures to a significant risk of loss, injury or death involving ^ ^ wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? V. Hydrology and Water Quality -Would the project: a. Violate any water quality standards or waste discharge requirements? ^ ^ b. Substantially deplete groundwater supplies or interfere substantially with ^ ^ groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level (e.g., the production rate of pre- existing nearby wells would drop to a level that would not support existing land uses or planned uses for which permits have been granted)? c. Substantially alter the existing drainage pattern of the site or area, including ^ ^ through the alteration of the course of stream or river, in a manner that would result inflooding on oroff-site? d. Substantially alter the existing drainage pattern of the site or area, including ^ ^ through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner that would result in flooding on- or off-site? e. Create or contribute runoff water that would exceed the capacity of existing or ^ ^ planned stormwater drainage systems or provide substantial additional sources of polluted runoff? f. Otherwise substantially degrade water quality? ^ ^ g. Place housing within a 100-year flood hazard area as mapped on a federal Flood ^ ^ Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map? h. Place within a 100-year flood hazard area structures that would impede or ^ ^ redirect Flood flows? i. Expose people or structures to a significant risk of loss, injury or death involving ^ ^ flooding, including flooding as a result of the failure of a levee or dam? j. Inundation by seiche, tsunami, or mudflow? ^ ^ VI. Land Use and Planning -Would the project: a. Physically divide an established community? ^ ^ b. Conflict with any applicable land use plan, policy, or regulation of an agency with ^ ^ jurisdiction over the project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? c. Conflict with any applicable habitat conservation plan or natural community ^ ^ conservation plan? VII. Noise -Would the project result in: a. Exposure of persons to or generation of noise levels in excess of standards ^ ^ established in the local general plan or noise ordinance, or applicable standards of other agencies? b. Exposure of persons to or generation of excessive groundborne vibration or ^ ^ groundborne noise levels? c. A substantial permanent increase in ambient noise levels in the project vicinity ^ ^ above levels existing without the project? d. A substantial temporary or periodic increase in ambient noise levels in the project ^ ^ vicinity above levels existing without the project? MacArthur Place South EIR Addendum 61 75B-207 No Substantial New Change from Significant More Severe Previous Issues Impacts Impacts Analysis e. For a project located within an airport land use plan or, where such a plan has not ^ ^ been adopted, within iwo miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? f. For a project within the vicinity of a private airstrip, would the project expose ^ ^ people residing or working in the project area to excessive noise levels? VIII. Population and Housing -Would the project: a. Induce substantial population growth in an area, either directly (for example, by ^ ^ proposing new homes and businesses) or indirectly (for example, through extension of roads or other infrastructure)? b. Displace substantial numbers of existing housing, necessitating the construction ^ ^ of replacement housing elsewhere? c. Displace substantial numbers of people, necessitating the construction of ^ ^ replacement housing elsewhere? IX. Public Services -Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ration, response times or other performan ce objectives for any of the public service: a. Fire protection? ^ ^ b. Police protection? ^ ^ c. Schools? ^ ^ d. Parks? ^ ^ e. Other public facilities? ^ ^ X. Recreation a. Would the project increase the use of existing neighborhood and regional parks ^ ^ or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated. b. Does the project include recreational facilities or require the construction or ^ ^ expansion of recreational facilities that might have an adverse physical effect on the environment? XI. Transportation/Traffic -Would the project: a. Cause an increase in traffic that is substantial in relation to the existing traffic load ^ ^ ^ and capacity of the street system (i.e., result in a substantial increase in either the number of vehicle trips, the volume to capacity ration on roads, or congestion at intersections?) b. Exceed, either individually or cumulatively, a level of service standard established ^ ^ ^ by the county congestion management agency for designated roads or highways? c. Result in a change in air traffic patterns, including either an increase in traffic ^ ^ ^ levels or a change in location that results in substantial safety risks? d. Substantially increase hazards due to a design feature (e.g., sharp curves or ^ ^ ^ dangerous intersections) or incompatible uses (e.g., farm equipment)? e. Result in inadequate emergency access? ^ ^ ^ f. Result in inadequate parking capacity? ^ ^ ^ g. Conflict with adopted policies supporting alternative transportation (e.g., bus ^ ^ ^ turnouts, bicycle racks)? XII. Uti lities and Service Systems -Would the project: a. Exceed wastewater treatment requirements of the applicable Regional Water ^ ^ Quality Control Board? b. Require or result in the construction of new water or wastewater treatment ^ ^ facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? MacArthur Place South EIR Addendum 62 75B-208 No Substantial New Change from Significant More Severe Previous Issues Impacts Impacts Analysis c. Require or result in the construction of new storm water drainage facilities or ^ ^ expansion of existing facilities, the construction of which could cause significant environmental effects? d. Are sufficient water supplies available to serve the project from existing ^ ^ entitlements and resources, or are new or expanded entitlements needed? e. Result in the determination by the wastewater treatment provider that serves or ^ ^ may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? f. Be served by a landfill with sufficient permitted capacity to accommodate the ^ ^ project's solid waste disposal needs? g. Comply with federal, state, and local statutes and regulations related to solid ^ ^ waste? XIII. Mandatory Findings of Significance a. Does the project have the potential to degrade the quality of the environment, ^ ^ substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? b. Does the project have impacts that are individually limited but cumulatively ^ ^ considerable? ("Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, effects of other current projects and the effects of probable future projects). c. Does the project have environmental effects that will cause substantial adverse ^ ^ effects on human beings, either directly or indirectly? Checklist prepared by CAA Planning on behalf of the City of Santa Ana. 85 Argonaut, Suite 220 Aliso Viejo, CA 92656 (949) 581-2888 MacArthur Place South EIR Addendum 63 75B-209 ORDINANCE NO. NS-XXXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING THE MACARTHUR PLACE SOUTH MIXED USE SPECIFIC DEVELOPMENT DISTRICT (SD-76) (ZOA NO. 2009-04) THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana does hereby find, determine and declare as follows: A. The Applicant is requesting approval of an Addendum to the Final Environmental Impact Report No. 2004-02 and approve the mitigation monitoring program; Zoning Ordinance Amendment No. 2009-04; an Amendment to the Development Agreement No. 2005-02; Conditional Use Permit No. 2009-08 and Variance No. 2009-02 to allow a hotel at 6 East MacArthur Place. B. On April 13, 2009, the Planning Commission Chairperson declared an impasse after a series of motions failed to achieve a majority vote. The Applicant has requested the items be denied by the Planning Commission to allow them to move forward to the City Council for a final decision. The items before the Planning Commission were as follows: 1. Adopt a resolution approving the Addendum to the Final Environmental Impact Report No. 2004-02 and approve the mitigation monitoring program. 2. Adopt an ordinance approving Zoning Ordinance Amendment No. 2009-04. 3. Adopt an ordinance approving the Amendment to Development Agreement No. 2005-02. 4. Adopt a resolution approving Conditional Use Permit No. 2009-08 as conditioned. 5. Adopt a resolution approving Variance No. 2009-02 as conditioned. C. On May 4, 2009 the City Council of the City of Santa Ana held a duly noticed public hearing and at that time considered all testimony, written and oral. D. Zoning Ordinance Amendment No. 2009-04 has been filed with the City of Santa Ana to amend the MacArthur Place South Mixed Use Specific Development District (SD-76) to allow hotels as a conditionally permitted use in Zone 2. 75B-210 1. Amendment Application No. 2009-04 is consistent with the General Plan, including but not limited to its goals and policies to: a. Promote the balance of land uses to address basic community needs. Land Use Element Goal No. 1.0. b. Promote land uses which enhance the City's economic and fiscal viability. Land Use Element Goal No. 2.0. c. Support developments that create a business environment that is safe and attractive. Land Use Element Policy No. 2.8. d. Enhance development sites and districts which are unique community assets that enhance the quality of life. Land Use Element Goal No. 4.0. 2. The City Council has weighed and balanced the general plan's policies and has determined that based upon this balancing that the MacArthur Place South project is consistent with the purpose of the general plan. 3. The City Council also adopts as findings all facts presented in the Requests for Council Action dated May 4, 2009 accompanying this matter. 4. For these reasons, and each of them, Zoning Ordinance Amendment No. 2009-04 is hereby found and determined to be consistent with the General Plan of the City of Santa Ana and otherwise justified by the public necessity, convenience, and general welfare. E. This resolution incorporates by reference, as though fully set forth herein, the Final Environmental Impact Report No. 2004-02, the Mitigation Monitoring Program, and the Statement of Overriding Considerations and ordinance and resolutions which came before the City Council on June 20, 2005; and the Addendum to the Final Environmental Impact Report No. 2004-02 and the mitigation monitoring program which was adopted by Resolution by the City Council on May 4, 2009 for this project. Section 2. MacArthur Place South Mixed Use Specific Development District (SD-76) is amended as set forth in Exhibit "A", attached hereto and incorporated as though fully set forth herein. All provisions of the Specific Development District which are repeated herein are repeated solely in order to comply with the provisions of section 418 of the Charter of the City of Santa Ana. Any such restatement of existing provisions is not intended, nor shall it be interpreted, as constituting a new action or decision of the City Council, but rather such provisions are repeated for tracking purposes only in conformance with the Charter. Section 3. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that 75B-211 it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this day of May, 2009. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher City Attorney By: Kylee O. Otto Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the attached Ordinance No. NS- to be the original ordinance adopted by the City Council of the City of Santa Ana on ,and that said ordinance was 75B-212 published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 75B-213 MacArthur Place South Mixed Use Specific Development District (SD-76) TABLE OF CONTENTS SECTION 1. Applicability of Ordinance SECTION 2. Purpose SECTION 3. Objectives and Policies SECTION 4. Permitted Improvements SECTION 5. Permitted Uses SECTION 6. Conditionally Permitted Uses SECTION 7. Development Standards 1. Maximum Density 2. Minimum Parcel Size 3. Overall Project a. General Requirements b. Building Setbacks c. Building Height d. Screening 4. Parking a. General Requirements b. Residential Components c. Other Uses 5. Building Elevations SECTION 8. Miscellaneous Standards 1. Landscaping 2. Signage 3. Common Areas 4. Public Art EXHIBIT A 75B-214 MacArthur Place South Mixed Use Specific Development District (SD-76) SECTION 1 APPLICABILITY OF ORDINANCE The specific development zoning district, as authorized by Chapter 41, Division 26, of the Santa Ana Municipal Code, is specifically subject to the regulations contained in this ordinance for the express purpose of establishing use district regulations. All other applicable chapters, articles and sections of the Santa Ana Municipal Code shall apply unless expressly waived or superseded by this ordinance. Use district regulations established in Chapter 41, Article III, of the Santa Ana Municipal Code for zoning districts other than the SD zoning district may be incorporated herein by reference. The boundaries of the MacArthur Place South MacArthur Place SouthMixed Use Specific Development District shall be defined pursuant to Exhibit A (attached hereto and incorporated as though fully set forth herein). MacArthur Place South Mixed Use Specific Development District shall have two zones, Zone 1 and Zone 2, as depicted in Exhibit A. SECTION 2 PURPOSE The Specific Development No. 76 (SD-76) use district regulations are hereby established for the express purpose of protecting the health, safety and general welfare of the City by encouraging the use of innovative planning concepts and principles, promoting and enhancing the value of properties, and encouraging orderly development. This district is intended to provide standards for areas located in a District Center and adjacent to high capacity arterial streets. SECTION 3 OBJECTIVES AND POLICIES The MacArthur Place South Mixed Use Specific Development District is located within the southeastern area of the City. The MacArthur Place South Mixed Use Specific Development District encompasses a mixture of office, restaurant, retail, hotel and residential land uses. The following site development policies are designed to encourage greater convenience, efficiency, excellence of design and visual appeal than is typically achieved with usual residential and commercial development. The policies of the MacArthur Place South Mixed Use Specific Development District include the following: • Uses shall be integrated within the overall MacArthur Place South campus in terms of architecture, pedestrian orientation and circulation, vehicular circulation, landscape and urban design. 75B-215 • Internal circulation shall separate customer traffic from loading, delivering, and pedestrian traffic. • Access to and from the adjacent arterial streets and highways shall be limited, in order to ensure efficient and safe vehicular circulation. • Adequate open spaces and landscaping shall be provided for all uses and shall be integrated with building and parking areas. • Awell-planned system of pedestrian linkages, enhanced with water features, seating areas, and other pedestrian amenities, shall be developed for convenient access between all uses developed on the site. • Walkways, parking and open spaces shall be provided with adequate lighting for safe and convenient nighttime use. SECTION 4 PERMITTED USES IN ZONE 1 The permitted land uses within Zone 1 shall be as follows: 1. Professional, business and administrative offices. 2. Museums, libraries and galleries. 3. Retail and Service Uses. 4. Restaurants, cafes, and eating establishments, other than those specified in section 41-365.5. 5. Coffee houses, tea houses, and bakeries. SECTION 5 CONDITIONALLY PERMITTED USES IN ZONE 1 The following uses are permitted within Zone 1 upon the approval of a conditional use permit in accordance with the Santa Ana Municipal Code: 1. Theaters. 2. Hotels. 3. Child care facilities. 4. Nightclubs, bars and indoor entertainment uses whether freestanding or part of another permitted or conditionally permitted use. Adult entertainment businesses shall not be permitted within Zone 1. 5. Establishments selling or serving alcoholic beverages. 75B-216 6. Banquet facilities, subject to development standards set forth in section 41-199.1. 7. Uses open between the hours of 12:00 midnight and 5:00 a.m. 8. Health Clubs. SECTION 6 PERMITTED USES IN ZONE 2 The permitted land uses within Zone 2 shall be as follows: Professional, business and administrative offices. 2. Museums, libraries and galleries. SECTION 7 CONDITIONALLY PERMITTED USES IN ZONE 2 The following uses are permitted within Zone 2 upon the approval of a conditional use permit in accordance with the Santa Ana Municipal Code: Nightclubs, bars and indoor entertainment uses whether freestanding or part of another permitted or conditionally permitted use. Adult entertainment businesses shall not be permitted within Zone 2. 2. Establishments selling or serving alcoholic beverages. 3. Banquet facilities, subject to development standards set forth in section 41-199.1. 4. Uses open between the hours of 12:00 midnight and 5:00 a.m. 5. Multi-family residential uses. 6. Live/work communities in compliance with the following standards: a. Residential use is permitted only in combination with individual work space in a manner which provides an integrated working and living environment. b. Alive/work unit shall be at least nine hundred (900) square feet in size. c. The residential component of a live/work unit shall meet the following standards: i. It shall have access to separate bathroom facilities, including a water closet, a wash basin, and a bathtub or shower. ii. It shall have separate kitchen facilities including a kitchen sink, cooking appliances and refrigerator. All such 75B-217 facilities shall have a clear working space of at least thirty (30) inches in front. iii. It shall comply with all Housing Code requirements as modified by section 8-2700 of this Code. iv. In-unit laundry facilities shall be required. v. No residential component shall be permitted on the ground floor of the live/work unit. 7. Outdoor Farmers Markets. 8. Full service cafes and restaurants, which may include incidental take-out service. Full service cafes and restaurants shall be limited to those that provide sit down dining areas and exclusive table service for ordering and delivering meals and beverages. 9. Coffee houses, tea houses, and bakeries. 10. Health Clubs. 11. Retail and service uses. 12. Hotels SECTION 8 DEVELOPMENT STANDARDS IN ZONE 2 The following general development standards are applicable to this project: 1. Maximum Development Intensity Consistent with the General Plan, the maximum residential density allowed for the site shall be 90 dwelling units per acre within SD-76. The maximum floor area ratio for other permitted uses shall be 1.0. 2. Minimum Parcel Size The minimum parcel size shall be 2.5 acres. 3. Overall Project The development plans and material samples shall be submitted to and approved by the Planning Commission pursuant to Section 41- 593.4 prior to issuance of any building permits. a. Building Setbacks Setbacks are established to enhance pedestrian space throughout the district, create compatible relationships between existing and future building elevations, and recognize opportunities to create new open spaces such as plazas, pedestrian 75B-218 ways and landscaped areas. Major setback conditions are discussed below by street: Main Street: All projects shall maintain a building setback of 15 feet. Entry steps to residential units may encroach into this setback area in order to provide a transition between public and private spaces. ii. MacArthur Boulevard: All residential projects shall maintain a building setback of 15 feet. Entry steps to residential units may encroach into this setback area in order to provide a transition between public and private spaces. iii. Sandpointe Avenue: All projects shall maintain a building setback of 10 feet. Entry steps to residential units may encroach into this setback area in order to provide a transition between public and private spaces. iv. Hutton Center Drive: All projects shall maintain a building setback of 10 feet. b. Building Height The building height of a project shall not be approved where the Federal Aviation Administration (FAA) has determined such height to be a hazard to air navigation. c. Screening All appurtenances shall be located outside any required setback and shall be screened from view. 4. Parking a. General Requirements Parking shall not encroach into required setbacks at grade. Parking structures below residential buildings shall not encroach within required setbacks along Main Street or MacArthur Boulevard. 75B-219 ii. Parking structures that incorporate trash enclosures shall maintain sufficient vertical clearances to facilitate trash truck access. iii. Glare from the parking structure lighting shall not be visible from any public right-of-way. iv. The ceiling of all parking levels shall be painted white and be maintained to improve illumination and enhance safety within the parking structure. v. The parking structure shall comply with the Santa Ana Municipal Code sections pertaining to the Police Department's Security requirements, including parking lot lighting levels. vi. The parking structure shall comply with the Santa Ana Police Department's parking structure design guidelines. b. All uses shall comply with the parking provisions outlined in Chapter 41 of the Santa Ana Municipal Code (SAMC). 5. Landscaping Prior to issuance of any building permit, a detailed Landscape Plan shall be submitted to and be approved by the Planning Commission. 6. Signage a. All signage shall comply with the Santa Ana Municipal Code. b. Prior to issuance of any sign permits or certificates of occupancy for any building or portion thereof, a comprehensive sign program for the entire site, including directional signs and graphics for the parking structure, shall be submitted to and be approved by the Planning Commission. 7. Public Areas Prior to issuance of any building permits, a detailed plan of the public areas shall be submitted to and approved by the Planning Commission. a. Exterior kiosks, carts or other temporary outdoor uses are not allowed unless specifically submitted to and approved by the Planning Commission. 75B-220 b. The public areas shall incorporate seating, benches, street furniture and landscaping to provide visual interest and additional amenities within the public areas. All seating, benches, street furniture surfaces, pedestrian-level walls and similar amenities shall be made of a durable material such as concrete or painted iron and be designed to minimize effects from vandalism, skateboarding and weather and incorporate graffiti resistant coatings. c. Pedestrian amenities shall be provided such as lighting, planters, drinking fountains, unit pavers, and bicycle racks. d. Trash receptacles should be located in high-activity areas, such as plazas and other public open spaces. The style shall be compatible with other public areas' furnishings. e. The property shall be maintained free of graffiti. All graffiti shall be removed within 48-hours of occurrence. 75B-221 ORDINANCE NO. NS - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AN AMENDMENT TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND GRAND PLAN 2, LLC THE CITY COUNCIL OF THE CITY OF SANTA ANA ORDAINS AS FOLLOWS: SECTION 1: The City Council hereby finds, determines and declares as follows: A. The City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into development agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and owner in the development process. B. The City enters into this Amendment to Development Agreement pursuant to the provisions of the Government Code and applicable City policies. C. The Planning Commission has, following a duly noticed public hearing, on April 13, 2009, tied 3-3 on whether to recommend approval of this Amendment to Development Agreement. D. Entering into this Amendment to Development Agreement would provide the City with extraordinary and significant benefits that are of regional significance, relate to existing deficiencies in public facilities, require the owner of MacArthur Place South to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process. E. The City Council has held a noticed public hearing on this Ordinance, and has considered all testimony presented thereto. F. The previously adopted and certified Final Environmental Impact Report (EIR) for the Nexus Project, No. ER 2004-02, and its Addendum have been approved and certified by this Council by resolution simultaneously with the introduction of this ordinance. G. The proposed project will not adversely affect the General Plan, as is expressly set forth in the Request for Council Action dated May 4, 2009, together with Ordinance No. NS- Page 1 75B-222 all supporting documents, including but not limited to proposed resolutions, which are incorporated herein by this reference. SECTION 2: The Amendment to Development Agreement, a true and correct copy of which is attached hereto as Exhibit 1, is hereby approved, and the City Manager and Clerk of the Council are authorized to execute it on behalf of the City with such nonsubstantive changes as may be authorized by the City Manager and City Attorney. The Clerk of the City is hereby authorized and directed to cause this Development Agreement to be recorded with the County Recorder's Office. SECTION 3: This ordinance shall not be effective unless and until Resolution No. 2009-XXX is adopted and become effective. If said resolution is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise do not go into effect for any reason, then this ordinance shall be null and void and have no further force and effect. SECTION 4: If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this day of , 2009. Miguel A. Pulido Mayor Ordinance No. NS- Page 2 75B-223 APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Benjamin Kaufman Chief Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS-XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on ,and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Ordinance No. NS- Page 3 75B-224 EXHIBIT 1 (replace with separate Word file called "3rd amendment to Development Agreement Hotel 2") Ordinance No. NS- Page 4 75B-225 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza M-30 P.O. Box 1988 Santa Ana, California 92702 FREE RECORDING GOVERNMENT CODE § 6103 THIRD AMENDMENT TO DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and THE GRAND PLAN 2, LLC Dated: , 2009 Ordinance No. NS- EXHIBIT 1 75B-226 THIRD AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA, and THE GRAND PLAN 2, LLC This THIRD AMENDMENT TO DEVELOPMENT AGREEMENT ("Third Amendment") is entered into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California ("City"), and THE GRAND PLAN 2, LLC, a California limited liability company ("GP2"). 1. Reference to Facts. This Third Amendment is entered into with reference to the following facts: 1.1 Capitalized terms not defined herein shall have the meaning set forth in the Development Agreement. 1.2 The Grand Plan 1, LLC, a California limited liability company ("GP1") and The Grand Plan 2, LLC, a California limited liability company ("GP2"), on the one hand, and City, on the other hand, entered into that certain Development Agreement dated August 4, 2005 and recorded in the Orange County Official Records on July 21, 2005 as Instrument No. 2005000565108 (as amended, the "Development Agreement") pursuant to which, among other things, Owner (as defined in the Development Agreement) was granted the vested right to develop a mixed use Project with residential condominiums and office/commercial/retail uses, as more particularly described therein. GP2's current rights and obligations under the Development Agreement include the Condo/Office Project and Retail Project Elements of the Project, which are the subject of this Third Amendment. 1.3 A First Amendment to the Development Agreement by and between the City, GP2, NDC Skyline Associates, LLC and Integral Communities I, Inc. (the latter two being assignees of GPI and GP2 as applicable) was executed on or about July 7, 2008 and recorded in the Orange County Official Records on July 22, 2005 as Instrument No. 2008000349227. Simultaneous with its consideration of this Third Amendment, the City Council of the City of Santa Ana is considering a proposed Second Amendment to the Development Agreement, which is concerned solely with consideration of separate requests for the City to approve rental use (as opposed to for-sale condominiums) of the Lake Tower Element and Integral Project Element of the Project. 1.4 The original Development Agreement and Entitlements (i) described the Condo/Office Project Element of the Project as consisting of a six (6) story tower consisting of fifteen (15) for-sale residential units on four (4) floors and approximately ten thousand (10,000) square feet of office use on two (2) floors, and (ii) described the Retail Project Element of the Project as consisting of approximately thirteen thousand eight hundred seventy-one (13,871) square feet of commercial space, including approximately eight thousand five hundred eighty (8,580) square feet of restaurant and approximately five thousand two hundred ninety (5,290) square feet of retail. 1.5 In lieu of the Condo/Office Project and Retail Project, which Elements are no longer part of the Project, GP2 seeks approval of a Hotel Project. For purposes of this Third 3rd amendment to development agreement hotel2.doc 4/29/2009 9:34 AM 2 75B-227 Amendment, the "Hotel Project" shall consist of a new 185 room, 100,000 square foot, four-story (approximately 57.3 feet above grade) hotel to be located on the corner of MacArthur Place and MacArthur Boulevard served by 133 surface parking spaces, and GP2's right to park in the parking structure located on Orange County Assessor's Parcel No. 411-081-22 (also known as the Teacher's parking structure) during certain specified hours of the week. 1.6 Approval of the Hotel Project will result in the need to relocate of the Cinema Tower, which is also owned and developed by GP2. The City and GP2 agree and acknowledge that GP2 must submit a new application to the City for site plan review for the proposed new location of the Cinema Tower, which must be reviewed and approved by the City's Planning Commission. 1.7 In connection with the foregoing, GP2 and the City now desire to amend the Development Agreement to provide GP2 with approval of the Hotel Project subject to the terms and conditions of the Development Agreement, as amended. 2. Hotel Project. GP2 and the City hereby acknowledge and agree that GP2 has the right under this Third Amendment to construct and operate the Hotel Project, as hereinafter defined. 3. Modification of Certain Provisions. The Development Agreement is hereby amended and supplemented in the following particulars: 3.1 Section 1.1(1). The phrase "office/commercial/retail uses" appearing in Section 1.1(1) of the Development Agreement is hereby amended and restated to read as "hotel uses with ancillary retail/restaurant uses." 3.2 Section 2.13. The entire section is deleted and replaced with the word "Reserved." "Reserved." as follows: 3.3 Section 2.23. The entire section is deleted and replaced with the word 3.4 Section 2.25A. A new section is added between Section 2.25 and 2.26 to read "'Hotel Project' is defined in Section 2.43." 3.5 Section 2.21. This section is hereby supplemented by adding the following after the first sentence appearing therein: "The Project also includes a new 185 room, approximately 100,097 square foot, four-story (approximately 57.3 feet above grade) hotel to be located on the corner of MacArthur Place and MacArthur Boulevard served by 133 surface parking spaces, and GP2's parking rights in structure located on Orange County Assessor's Parcel No. 411-081-22 (also known as the Teacher's parking structure) during certain specified hours of the week, as set forth in detail in City approvals for Development Permit No. 2008-8, Zoning Ordinance Amendment No. 2009-04, Conditional Use Permit No. 2009-08, Variance No. 2009-02, Environmental Review No. 2008-235 (including the Addendum to the Final Environmental Impact Report for Environmental Review No. 2004-02). Entitlements shall also include the City approvals for the Hotel Project set forth in detail in City approvals for Development Permit No. 2008-8, Zoning Ordinance Amendment No. 2009-04, Conditional Use Permit No. 2009-08, Variance No. 2009-02, Environmental Review 3rd amendment to development agreement hotel2.doc 4/29/2009 9:34 AM 3 75B-228 No. 2008-235 (including the Addendum to the Final Environmental Impact Report for Environmental Review No. 2004-02). "Reserved." 3.6 Section 2.43(2). The section is deleted and replaced by the following: "A new 185 room, approximately 100,097 square foot, four-story (approximately 57.3 feet above grade) hotel to be located on the corner of MacArthur Place and MacArthur Boulevard served by 133 surface parking spaces, and GP2's parking rights in the structure located on Orange County Assessor's Parcel No. 411-081-22 (also known as the Teacher's parking structure) during certain specified hours of the week (the `Hotel Project')." 3.7 Section 2.43(4). The entire section is deleted and replaced with the word 3.8 Section 2.43 (enerally~. The final sentence appearing in this section (i.e., the sentence beginning with the phrase "Each of the Lake Towers ... ") is deleted and replaced with the following: "The Lake Towers, the Cinema Tower, the Hotel Project, and the Integral Project are each an `Element."' 3.9 Section 2.52. The entire section is deleted and replaced with the word "Reserved." 3.10 Section 2.55. The following is added to this section: "The City and GP2 agree and acknowledge that the final location of the relocated Cinema Tower has not been determined. This is other issues related to its relocation shall be resolved by submission of an application by GP2 for Development Project Plan Approval pursuant to Division 3 of Article V of Chapter 41 of the City's Municipal Code, which shall be processed pursuant to said Division and Section 41-593 et seq. of the City's Municipal Code." 3.11 Section 5.1.11. The phrase "Restaurant Portion" appearing in Section 5.1.11 of the Development Agreement is hereby amended and restated to read as "Hotel Project." 3.12 Exhibit B Public Art Plan . The second to last sentence of paragraph 2 of Exhibit B of the Development Agreement, as previously amended in the First Amendment to the Development Agreement (beginning with the phrase "Owner shall have committed..."), is deleted and replaced with the following: "Owner shall have committed, by written contract, to expend not less than One Hundred Twenty-Five Thousand Dollars ($125,000) in connection with the Public Art upon the issuance of a certificate of occupancy for each of the following: (i) Lake Towers, (ii) Cinema 3rd amendment to development agreement hotel2.doc 4/29/2009 9:34 AM 4 75B-229 Towers, (iii) Integral Project, and (iv) Hotel Project, but in no event exceeding an aggregate of Five Hundred Thousand Dollars ($500,000)." Full Force and Effect; Counterparts. Except as amended herein the Development Agreement shall remain in full force and effect in accordance with its terms. This Third Amendment may be executed in any number of counterparts, all of which shall constitute one and the same instrument. IN WITNESS WHEREOF, this Third Amendment has been executed by the City of Santa Ana and The Grand Plan 2, LLC. Dated this day of , 2009. "CITY" THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California By DAVID N. REAM City Manager ATTEST: PATRICIA E. HEALY Clerk of the Council Approved as to Form: By JOSEPH W.FLETCHER City Attorney 3rd amendment to development agreement hotel2.doc 4/29/2009 9:34 AM 5 75B-230 "GP2" 4/29/2009 9:34 AM 3rd amendment to development agreement hotel2.doc THE GRAND PLAN 2, LLC, a California limited liability company By _ Name Its 75B-231 STATE OF CALIFORNIA ) ss. COUNTY OF ) On before me, ,Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC STATE OF CALIFORNIA COUNTY OF ss. On before me, ,Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC 3rd amendment to development agreement hotel2.doc 4/29/2009 9:34 AM 7 75B-232 REQUEST FOR COUNCIL/ AGENCY ACTION MEETING DATE: MAY 4, 2009 TITLE: PAYMENT TO EDUCATIONAL REVENUE AUGMENTATION FUND Via, ~ _, ~ _ .~,n--- CITY MANAGER EXECUTIVE DIRECTOR RECOMMENDED ACTION CITY COUNCIL ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ A:. Recommended ^ As Amended ^ Ordinance on 1st Reading ^ Ordinance on 2nd Reading ^ Implementing Resolution ^ Set Public Hearing For CONTINUED TO FILE NUMBER. Approve an appropriation adjustment transferring loan funds from the Low and Moderate-Income Housing Fund to the Merged Redevelopment Project Area Fund to make the necessary payment to the County Educational Revenue Augmentation Fund as required by legislation implementing the California State Budget for FY 2008-2009. COMMUNITY REDEVELOPMENT AGENCY ACTION Adopt a resolution finding that borrowing $3,679,545 in Housing Set- Aside Funds to make the FY 2008-2009 payment to the Educational Revenue Augmentation Fund is necessary due to the insufficiency of other revenue sources. DISCUSSION As a result of Assembly Bill 1389 (AB 1389) implementing the California State Budget for FY 2008-2009, the Community Redevelopment Agency is required to make a $3, 679, 545 payment to the County Educational Revenue Augmentation Fund (ERAF) by May 10, 2009. The legislation allows the Agency to borrow up to fifty percent of the amount required to be allocated to the Low and Moderate-Income Housing Fund during FY 2008- 2009 to make this payment. The funds may be borrowed for up to ten 80A-1 ERAF May 4, 2009 Page 2 years. As a condition of borrowing the funds from the Low and Moderate- Income Housing Fund, the Agency must adopt a resolution making a finding that there are insufficient other moneys to make the required payment. The legislation implementing the State's FY 2008-2009 budget authorized the County Auditor/Controller to withhold property tax revenue from the City's General Fund to the extent that the $3,679,545 payment is not made by the Community Redevelopment Agency before May 10, 2009. FISCAL IMPACT City/Agency approval of the appropriation adjustment and resolution will enable staff to make the $3,679,545 payment to the County Auditor for deposit into the ERAF on or before May 10, 2009. APPROVED AS TO FUNDS AND ACCOUNTS: Nancy T. dwards Francisco Gutierrez Assistant Director Executive Director Community Development Agency Finance and Management Services Agency CJN/NTE/EB/mlr 80A-2 4/8/09 les RESOLUTION NO. 2009- A RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA MAKING THE FINDING THAT THE AGENCY MUST BORROW HOUSING SET ASIDE FUNDS IN ORDER TO MAKE THE 2008-2009 PAYMENT TO THE EDUCATIONAL REVENUE AUGMENTATION FUND BE IT RESOLVED BY THE MEMBERS OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, AS FOLLOWS: Section 1. The Community Redevelopment Agency of the City of Santa Ana hereby finds, determines and declares as follows: A. As a result of Senate Bill 1389 (SB 1389) implementing the California State Budget for fiscal year 2008-2009, the Community Redevelopment Agency ("Agency") is required to make a $3,679,545 payment to the County Educational Revenue Augmentation Fund ("ERAF") by May 10, 2009. B. The legislation allows the Agency to borrow up to fifty percent of the amount required to be allocated to the Low and Moderate Income Housing Fund during fiscal year 2008-2009 in order to make this payment. The funds may be borrowed for up to ten years. C. As a condition of borrowing from the Low and Moderate Income Housing Fund pursuant to Health & Safety Code § 33681.12, the Agency must make a finding that there are insufficient other moneys to remit the required ERAF payment. D. The legislation implementing the State's fiscal year 2008-2009 budget also authorized the County Auditor/Controller to withhold property tax revenue from the City's general fund to the extent that the $3,679,545 payment is not made by the Agency by May 10, 2009. Section 2. The Agency hereby finds that borrowing $3,679,545 from the Low and Moderate Income Housing funds is necessary due to the insufficiency of other revenue sources. Section 3. The Executive Director of the Agency is hereby authorized to take all necessary actions and to sign all documents and instruments necessary to make the $3,679,545 payment to the County Auditor for deposit into the Educational Revenue Augmentation Fund on or before May 10, 2009. Section 4. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. 80A-3 4/8/09 les ADOPTED this day of , 2009. Miguel A. Pulido Chair APPROVED AS TO FORM: Joseph W. Fletcher, General Counsel By: Lisa E. Storck Assistant General Counsel AYES: Boardmembers: NOES: Boardmembers: ABSTAIN: Boardmembers: NOT PRESENT: Boardmembers: CERTIFICATION OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Secretary of the Agency, do hereby attest to and certify the attached Resolution No. 2009- to be the original resolution adopted by the Community Redevelopment Agency of the City of Santa Ana on Date: Secretary City of Santa Ana 80A-4 EXHIBIT A EMPLOYEE FREE CHOICE ACT RESOLUTION WHEREAS, in the National Labor Relations Act of 1935 (29 U.S.C. Sec. 151 et seq.) the United States Congress declared it to be the policy of the United States to encourage the practice of collective bargaining by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection; and WHEREAS, the freedom to form or join a union is recognized as a fundamental human right; and WHEREAS, union membership provides workers with better wages, improved benefits, and protection from discrimination and unsafe workplaces; and WHEREAS, unions benefit communities by moving families out of poverty, creating economic security, strengthening tax bases, promoting equal treatment, and enhancing civic participation; and WHEREAS, because union workers are more likely to have healthcare coverage and pensions, union membership also reduces the need for working families to rely on the social safety net; and WHEREAS, unions helped to build the middle class in this country and to establish basic working standards that benefit all workers, such as the 8-hour day and the right to a lunch break; and WHEREAS, a worker's fundamental right to join a union is essential to rebuilding our economy and revitalizing our middle class; and WHEREAS, fifty-seven million United States workers have indicated that they would join a union tomorrow if given the opportunity; and WHEREAS, nearly four in five (78%) Americans favor legislation that would make it easier for workers to bargain with their employers according to recent research from Peter Hart Associates; and WHEREAS, when the freedom of workers to form a union is violated, wages decline, race and gender pay gaps widen, workplace discrimination increases, and job safety standards lapse; and WHEREAS, federal legislation known as the Employee Free Choice Act will be introduced this year in the United States Congress in order to restore workers' freedom to join unions. 85A-1 THEREFORE, BE IT RESOLVED that the City of Santa Ana City Council supports the Employee Free Choice Act which would authorize the National Labor Relations Boards to certify a union as the bargaining representative when a majority of employees voluntarily sign authorizations designating that union to represent them; provide for first contract mediation and arbitration; and establish meaningful penalties for violations for a worker's freedom to choose a union. THEREFORE, BE IT FURTHER RESOLVED that the City of Santa Ana City Council urges Congress to pass the Employee Free Choice Act to protect and preserve for America's workers their freedom to choose for themselves whether or not to form a union. 85A-2