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HomeMy WebLinkAbout FULL PACKET_2010-01-04 MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA DECEMBER 21, 2009 CLOSED SESSION MEETING CALLED TO ORDER POLICE CHIEF'S CONFERENCE ROOM 60 CIVIC CENTER PLAZA, 4T" FLOOR 5:07 P.M. ATTENDANCE COUNCILMEMBERS Present: CLAUDIA ALVAREZ, Mayor Pro Tem P. DAVID BENAVIDES (5:30 P.M.) CARLOS BUSTAMANTE MICHELE MARTINEZ VINCENT F. SARMIENTO SAL TINAJERO ABSENT: MIGUEL PULIDO, Mayor STAFF Present: DAVID N. REAM, City Manager JOSEPH FLETCHER, City Attorney MARIA D. HUIZAR, Clerk of the Council PUBLIC COMMENTS -None CLOSED SESSION ITEMS 1A LIABILITY CLAIMS pursuant to Government Code Section 54956.95 Claimants: Peter Sandhu Claim No. 2009-133 1 B CONFERENCE WITH LABOR NEGOTIATOR pursuant to Government Code Section 54957.6 Agency Negotiators: Personnel Services Executive Director, Kathie Gonzalez Employee Organizations: Santa Ana Service Employees International Union (SEIU), Santa Ana Police Officers Association, Santa Ana Firemen's Benevolent Association. ADJOURNED - 5:59 P.M. CITY COUNCIL MINUTES 278 DECEMBER 21, 2009 10A-1 REGULAR CITY COUNCIL MEETING CALLED TO ORDER POLICE COMMUNITY ROOM 60 CIVIC CENTER PLAZA 6:05 P.M. ATTENDANCE COUNCILMEMBERS Present: CLAUDIA ALVAREZ, Mayor Pro Tem P. DAVID BENAVIDES CARLOS BUSTAMANTE MICHELE MARTINEZ VINCENT F. SARMIENTO SAL TINAJERO ABSENT: MIGUEL PULIDO, Mayor STAFF Present: DAVID N. REAM, City Manager JOSEPH FLETCHER, City Attorney MARIA D. HUIZAR, Clerk of the Council PLEDGE OF ALLEGIANCE Councilmember Tinajero CLOSED SESSION REPORT The City Attorney reported items related to Peter Sandhu, Claim No, 2009-133. See Item 19A for report. PUBLIC COMMENTS • Douglas Chapman spoke on behalf of his neighbor on water billing issues; staff to contact customer to assist. CONSENT CALENDAR MOTION: Approve staff recommendations on Consent Calendar Items 10A through 25D with the following modifications: • Councilmember Benavides -Continue Item 13B until January 4, 2010 and pulled Item 25B for separate discussion; and • Mayor Pro Tem Alvarez -Excuse Mayor Pulido from said meeting. MOTION: Tinajero SECOND: Sarmiento VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Sarmiento, Tinajero (6) CITY COUNCIL MINUTES 279 DECEMBER 21, 2009 10A-2 NOES: None (0) ABSTAIN: None (0) ABSENT: Pulido (1) Items removed for separate action or modified are highlighted. Separate actions show the actual vote. Items without votes are adopted as part of the consent Motion. ADMINISTRATIVE MATTERS MINUTES 10A MINUTES OF THE REGULAR MEETING OF DECEMBER 7, 2009 - Clerk of the Council Office MOTION: Approve Minutes. ORDINANCES/SECOND READING 11A ORDINANCE - AMEND SECTION 10-280 OF THE SANTA ANA MUNICIPAL CODE RELATING TO FALSE ALARM PENALTY ASSESSMENTS -Police Department Placed on first reading at the December 7, 2009 City Council meeting and approved by a vote of 6-0 (Tinajero absent). Published in the Orange County Reporter on December 12, 2009. MOTION: Place ordinance on second reading and adopt. ORDINANCE NO. NS-2800 - An ordinance of the City Council of the City of Santa Ana amending Section 10-280 of the Santa Ana Municipal Code relating to False Alarm Penalty Assessments 11 B ORDINANCE -ZONING ORDINANCE AMENDMENT NO. 2009-07 TO AMEND THE PROVISIONS OF CHAPTER 41 PERTAINING TO WATER EFFICIENT LANDSCAPING AND ADOPT NEW REGULATIONS FOR WATER EFFICIENT LANDSCAPING -Planning and Building Agency Placed on first reading at the December 7, 2009 City Council meeting and approved by a vote of 7-0. Published in the Orange County Reporter on December 12, 2009. CITY COUNCIL MINUTES 280 DECEMBER 21, 2009 10A-3 MOTION: Place ordinance on second reading and adopt. ORDINANCE NO. NS-2801 - An ordinance of the City Council of the City of Santa Ana amending Chapter 41 of the Santa Ana Municipal Code to update the City's water efficiency standards for proposed development projects with substantial landscaping BOARDS /COMMISSIONS 13A APPOINTMENT Continued from the December 7, 2009 City Council meeting by a vote of 7-0. MOTION: Continue consideration of matter to the January 4, 2010 City Council Meeting -Appointment of Joe Yanez (Ward 4 resident) to the Community Redevelopment and Housing Commission nominated by Councilmember Benavides as the Ward 4 representative for a partial term expiring December 14, 2010 (replacing Roman Reyna). MISCELLANEOUS ADMINISTRATION 19A CLOSED SESSION REPORT MOTION: Approve settlement of Peter Sandhu, Claim 2009-133 in the amount of $112,500. 19B EXCUSED ABSENCES MOTION: Excuse the absence of Mayor Pulido from the December 21, 2009 City Council meeting. BUDGETARY MATTERS AGREEMENTS MOTION: Authorize the City Manager and Clerk of the Council to execute the following agreements, subject to non-substantive changes approved by the City Manager and City Attorney. (Items 25A, 25C and 25D) CITY COUNCIL MINUTES 281 DECEMBER 21, 2009 10A-4 25A AGMT NO. 2009-210 -AUTOMATED PARKING CITATION SYSTEM - Execute an amendment with the Phoenix Group Information Systems in an amount not to exceed $275,000 for a one-year term - Police Department 25B CELLULAR ANTENNA AT ROSITA PARK - Parks, Recreation & Community Services Agency MOTION: 1. Direct the City Attorney to prepare and authorize the City Manager and the Clerk of the Council to execute an agreement subject to non-substantive changes approved by the City Manager and City Attorney. AGMT NO. 2009-211 -With Omnipoint Communications Inc. (T- Mobile) 2. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 10-061 - Recognizing the $33,040 in the Capital Outlay Fund revenue account and appropriate the same to the Capital Outlay Fund expenditure account. 3. Receive and file Categorical Exemption for Environmental Review No. 2008-241 (Rosita Park) MOTION: Benavides SECOND: Tinajero VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Sarmiento, Tinajero (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Pulido (1) 25C TRANSPORATION SYSTEM IMPROVEMENT AREA FEE STUDY - Public Works Agency MOTION: 1. Authorize the City Manager and the Clerk of the Council to execute an agreement subject to non-substantive changes approved by the City Manager and City Attorney. CITY COUNCIL MINUTES 282 DECEMBER 21, 2009 10A-5 AGMT NO. 2009-212 -With Kimley Horn and Associates in the amount not to exceed $400,000. 2. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 10-059 - Recognizing the $75,000 in unanticipated prior years Area E Fund 34 revenue and appropriate same amount to the New Transportation System Improvement Area E. 25D AGMT NO. 2009-213 -EXTENDED LIBRARY HOURS-COOPERATIVE AGREEMENT -With the Santa Ana Unified School District in an amount not to exceed $59,928 -Parks, Recreation & Community Services Agency **END OF CONSENT CALENDAR** BUSINESS CALENDAR RESOLUTIONS 55A ABANDONMENT NO. 08-01-S: SUMMARY VACATION OF SUGAR AVENUE RIGHT OF WAY EAST OF SUSAN STREET AND NORTH OF MCFADDEN AVENUE -Public Works Agency MOTION: Adopt a resolution. RESOLUTION NO. 2009-062 - A resolution of the City Council of the City of Santa Ana approving the summary vacation of Sugar Avenue public service easement on the east side of Susan Street and north of McFadden Avenue MOTION: Sarmiento SECOND: Bustamante VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Sarmiento, Tinajero (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Pulido (1) CITY COUNCIL MINUTES 283 DECEMBER 21, 2009 10A-6 55B SAFE ROUTES TO SCHOOL GRANT FOR IMPROVEMENTS ALONG JIM THORPE ELEMENTARY SCHOOL ROUTE -Public Works Agency MOTION: Adopt a resolution. RESOLUTION NO. 2009-063 - A resolution of the City Council of the City of Santa Ana authorizing the Executive Director of the Public Works Agency to execute a grant award agreement with the California Department of Transportation for the Safe Routes to School Program MOTION: Bustamante SECOND: Sarmiento VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Sarmiento, Tinajero (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Pulido (1) 55C ORANGE COUNTY TAXI ADMINISTRATION PROGRAM REGULATIONS -City Manager's Office MOTION: Adopt a resolution. RESOLUTION NO. 2009-064 - A resolution of the City Council of the City of Santa Ana adopting revised Orange County Taxi Administration Program Regulations MOTION: Martinez SECOND: Sarmiento VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Sarmiento, Tinajero (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Pulido (1) COUNCIL RECESSED TO THE COMMUNITY REDEVELOPMENT AGENCY MEETING AT 6:18 P.M. AND RECONVENED AT 6:39 P.M. WITH SAME MEMBERS PRESENT CITY COUNCIL MINUTES 284 DECEMBER 21, 2009 10A-7 WORK STUDY SESSION WSA UPDATE ON THE CALIFORNIA ENDOWMENT INITIATIVE AND FAMILY MASTER PLAN PHASE I -Parks, Recreation & Community Services Agency Gerardo Mouet, Executive Director of the Parks & Recreation Agency, gave a presentation on Santa Ana Building Healthy Community (SABHC). Highlights are as follows: • Evidence shows that affordable housing, good jobs, safe schools, clean air, parks and playgrounds, walk able streets, markets with fresh fruits and vegetables, and strong social networks are crucial for a healthy California; • Challenges which threaten economically disadvantaged communities more than others include obesity and diabetes, neighborhood and family violence; • The Statewide Strategy is supported by the California Endowment which envisions the support of parents and local leaders by forging new partnerships and involving school principals, city officials, business executives, hospital and healthcare workers, and youth to deliver the essentials of a healthy environment; • The Plan includes building 14 healthy communities where there is both a need and an opportunity for healthy surroundings. Amongst those communities identified, the City of Santa Ana is included; • Funding sources include a grant within the range if $500,000 to $3 million per site per year. The actual grant support and dollar amounts will be influenced by factors including community size, population, local community capacity and organizational readiness, and the elements of each site's strategic plan; • Ten outcomes have been identified and the California's Endowment's four big results include: 1) reduction in youth violence, 2) reverse in childhood obesity, 3) providing healthy homes for all children, and 4) increase in school attendance; • SABHC planning highlights include submission of strategic plan by May 15, 2010, adding monies to original $250,000 planning budget, receiving $75,000 from the California Endowment, $5,000 from Samueli Foundation and finally, designating the Latino Health Access as the coordinating agency. Timelines were also discussed. Mr. Mouet also gave a presentation on the City's Youth and Family Master Plan (YFMP): Phase I. Highlights are as follows: • Provided details on the background of the YFMP and the efforts by Ersoylu Consulting in the past 12 months with focus groups, surveys, evaluation and development of plan. Various presentations were made to groups including the City's Board of CITY COUNCIL MINUTES 285 DECEMBER 21, 2009 10A-8 Recreation and Parks, SABHC Steering Committee, City's Youth Commission, and Comm-Link; • Summary of community opportunities include coordinated and shared data related to the City's youth programming for increased participation, focus on park funding in park-poor communities, focus on joint-use and athletic programming at schools, close the coordination gap for teens, consider tailored intervention for communities with high crime rates, and increased programming at city community centers with non-profit groups for leisure classes; • Summary of soccer programming opportunities include annual standardized training for coaches city-wide, increased business partnerships for more resources, better field reservations in order for Santa Ana youth to have priority, create consumer education campaign to educate families about soccer leagues selection process, and leverage athletic fields to make sure soccer organizations are effective partners in combating childhood obesity and gang involvement; • Next steps include the Parks & Recreation agency use findings and recommendations to guide efforts to combating youth obesity and gang involvement, and to provide input in the California Endowment Santa Ana Building Healthy Communities strategic planning process. COMMENTS 90A CITY MANAGER'S COMMENTS -None 90B CITY COUNCILMEMBER COMMENTS Councilmember Tinaiero • Wished the community Happy Holidays and a Happy New Year. Councilmember Benavides • Looking forward to building partnerships with community organizations for better and brighter City in 2010. Councilmember Martinez • Echoed Councilmember Benavides' sentiments; • Congratulated Gilbert Melendez of Santa Ana on winning Ultimate Fighting Championship; • Thanked Council, staff, and community for coming together to make the Southwest Center Christmas program a success in the wake of the fire that destroyed their facility; and • Wished all Happy Holidays. CITY COUNCIL MINUTES 286 DECEMBER 21, 2009 10A-9 Councilmember Sarmiento • Thanked Councilmember Martinez for her efforts with the Southwest Center event; • Thanked staff for their hard work and efforts this past year; • Wished everyone Happy Holidays. Mayor Pro Tem Alvarez • Happy Holidays to all! ADJOURNED 7:32 P.M. -The next regular meeting of the City Council is scheduled for Monday, January 4, 2010 at 5:00 p.m. for the Closed Session Meeting, immediately followed by the Regular Business Meeting in the Council Chamber, 22 Civic Center Plaza, Santa Ana, California. Maria D. Huizar, Clerk of the Council CITY COUNCIL MINUTES 287 DECEMBER 21, 2009 10A-10 REQUEST FOR COUNCIL ACTION ~ ~p CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED ? As Recommended APPOINTMENT OF MEMBER TO THE ? As Amended SANTA ANA WORKFORCE INVESTMENT ? Ordinance on 1ST Reading ? Ordinance on 2"d Reading BOARD ? Implementing Resolution ? Set Public Hearing For i , CONTINUED TO r ~ ~ FILE NUMBER CITY MANAGER RECOMMENDED ACTION ~ Appoint Marjorie A. Knitter, President, The Moote Group as a private sector member on the Santa Ana Workforce Investment Board. WORKFORCE INVESMENT BOARD RECOMMENDATION At its regular meeting of November 20, 2009, by a vote of 20:0, (de Leon, Fischer, Hood, Korthuis, Lin, Martinez, Metzler, Pina, and Syed absent), the Workforce Investment Board recommended that the City Council appoint Marjorie A. Knitter, President, The Moote Group as a private sector member on the Santa Ana Workforce Investment Board. DISCUSSION On March 6, 2000, the Santa Ana City Council adopted a resolution establishing the Santa Ana Workforce Investment Board and appointed 35 members. In accordance with the federal legislation, a majority of the Board members and the Board Chair must come from the private sector. The remaining Board members represent education, non-profit organizations, one-stop mandated partners and local labor organizations. There are four mandated private sector positions on the Board that are currently vacant. After an extensive recruitment campaign and interview process, staff is recommending the appointment of Ms. Marjorie A. Knitter as a private sector member. Her resume is attached (Exhibit 1). 13B-1 Appointment of members to Santa Ana Workforce Investment Board January 4, 2010 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. Cynthia J. Nels n Deputy City Manager for Development Services Community Development Agency CJN/LA/fj RFCA WIB Title I appt. 1-10 13B-2 ATE ~R~V~ ,hand Maraa~er~er~t ~pecralisfs MarJorie A. Knitter is the inspirational president of Paul A. Monte & Associates, Inc., dba The Monte Group, a full-service construction management firm providing / ~ laud development solutions to developers, builders, ` municipalities and lenders in all aspects of land development and infiash•ucture programs front entitlement tlu•ough finished lots. She is well known in ' the Southern California conshuction industry, with more _ than 25 years of experience in laud management and active leadership roles in numerous related associations. Marjorie oversees all aspect of business planning, development and management for the Santa Ana, Calif.- based firm of 22 employees that specializes in engineering feasibility, land development cost estimates and all phases of constnuction marragerrteirt. She has personally been the bid/contract administrator for both public and private developments representing more than $500 million in construction specifications and contract documents as well as manages their core business of due diligence support providing finished lot cost estimates. Since assuming leadership of The Monte Group during the economic recession in 1990, Knitter has grown the family business from seven employees to 22 and expanded the fttm's expertise from civil estimating and construction management to include bid solicitation, negotiations, contract preparation and administration, utility consulting and coordination, expert wihiess and litigation support, risk assessment, land use permitting and entitlement, and Consri•uction Reimbursement Support for bath public and private projects throughout California, Arizona and Nevada. Diversification helped The Monte Group not only to survive, but to thrive, even in the cyclical real estate and construction industry. Knitter has industry connections that nut deep, developed over years of Leadership and active participation in numerous construction associations, and is the current chair of the Development Trends and Strategies Conference for the Orange County Building Industry Association. She is a regular speaker at universities and industry conferences on the topic of construction and development management. She also volunteers her time and expertise to Hotne Aide, Habitat for Humanity and the United Way Women's Philanthropy Fund. 1516 Brookhollow Drive, Santa Ana, CA 92705 Office: 714-751-5557 Fax:714-751-4552 www.moote.com Path A. Mooto 8 Associates, inc. Exhibit 1 13B-3 Summery of Qualifications and Skills • Marketing and public relations • Bid /contract administrator for both public and private developments + Written slid administrated over $500,000,000 public constnuction specifications and contract documents • Field management, cost estimating, quantity takeoffs, project representation • Extensive project and construction management experience • Budget negotiation and compliance adl?erence • Pro-Forma Building and Due Diligence Services • Staffing recruitment for project-specific personnel • Strong knowledge of iudllstry specifics, global and local developments + Developed computer designs, proprietary spreadsheets and computer support tearnS • Review pre-bid activities, reporting formats, presentations and the contract award activities • Direct co?npany operations and ?nanagernent • Provide company-wide ?•eport analysis CONSTR UCTIONASSOCI.4TION MBMBBRSHIPS + Home Builders Council of the Orange County Building Industry Association - 1999 Volunteer of the Year, 2000 President -Member since 1989 • Building Lidustry Association / OC - 2006 -2009 Chairperson • National Association of Home Builders -Member since 1989 • Environmental Management Association -Licensed Member since 1992 • Association of Constnrction Inspectors -Licensed Member since 1993 • American Association of Cost Engineering --Certified Member since 1996 • National Association of Women in Construction - Member Organization • Urban Land Institute, Orange County -Member • California Receivers Foru?n -Member • National Association California Bankruptcy Tnrstees -Member EDUCATION cf•. PROFFSSIONf1L AI'FILI,4TIDNS • Instn?ctor: Constn?ction Management, Cost Estimating & Bid Administration- Orange Coast College, Uh1Ve1'Slty Of Calif0r7]IA, Irvine • Regular Guest Speaker for the Light Conshrlction and Development Management Program - University of California, Irvine • HBC Design Build Competition (1988 to 1999) -Chairman for a cornpetition of high school, R,O.P. and junior colleges construction technology shrdents. Shrdents design and build an 8' x 10' structure to code over a rivo-day period, judged by city building officials, architects and home builders. • BIS Building Industry -Program Committee, Program Speaker • PCBC Pacific Coast Building Cor?ference -Program Committee, Program Speaker • Crittenden Real Estate Canfcrenec, Program Speaker ~ ~ PE laid A!anapamenl 3Fcclafitfs Path A. Moots & Assocfates, Inc. 13B-4 COMMUNITY SERVICE INVOLVEMENT • American Business Women's Association (ABWA provides education scholarships to women who wish to enhance their careers through education) - 1990 Woman of the Year, 1991 President • United Way, Women's Philanthropy Fund- Active member since 2005 • Orange County Business Journal - 1996 Woman in Business Candidate • Home Aide Project Playhouse -Committee, Sponsor • Habitat for Hutnanity -Active participant for In-kind Sponsorship CURRENT PROJECTS • Schleisman Joint Develo went A reement. Representing a consortium of builders, (Shea P g Homes, D.R. Horton, Lcnnar Homes}. As an independent third party, Marjorie has provided the initial budget of shared improvements, established the fair share analysis between the consortium, and is managing the conshziction fiutding, cash-flow scheduling, bid administration and construction contracts. 2007 to present. Construction value $9.700,000. • Attdie Mttrpiry Ranch. 2,200 residential lots, 580 acres. Partially completed master planned community. Cost to complete estimate for Bank of America during pre-foreclosure event. May 2009. Cost-to-complete value $130,000,000. • Etiwanda Residential Ttact. 130 Finished Lots. Provided the cost to complete for the lender and assisted in the negotiations of the purchase price with the buyer. August 2009. ~.7iKV V tad F~anagtmtnl SF~eclatisls Paul A. Maote ~ Associates, htc. I i 13B-5 ~i 3 ~ ~ ~ z ~ x ~ ~ o ~ ~ ~ ~ a ~ o ° ~ ~ tea,' ~ rot ~ ~ ° ~ M N ~ ~ ~ O' a. < ~ ~ ~ U cue. ~ cu ~ x ~o' ~ O ~ ~ ~ ~ o ~ 'b co ~ ~ ~ coo ~ ° o " o ~ ~ ~ ~ ~ coo ~ - " w_, ~ ~ b' ~ ~ ~ w Cd ~ ~ rr ~ ~ ~ ~ 0 ~ b ~ ~ ~ t~ ~ ~ ~ ~ o ~ o ~ ~ b ~ ~ o ~ ro ~ ~ b n '7 ~ o ~ A ~ 0 Q ~ y. ~ ~ M• ~ b ~ o J z ON N C~D N N N N ~ • O CAD O O ~ O v, rn to v, v+ v, a, ~ N .may (~D y' N ~ .-r X O A Q O W J N 13B-6 REQUEST FOR COUNCIL ACTION ~ , CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED ? As Recommended APPOINTMENT OF LABOR ? As Amended REPRESENTATIVE TO THE ? Ordinance on 1S` Reading ? Ordinance on 2"d Reading SANTA ANA WORKFORCE ? Implementing Resolution INVESTMENT BOARD ? Set Public Hearing For CONTINUED TO f - ~ ~J'1-~ FILE NUMBER CITY MANAGER RECOMMENDED ACTION Appoint Robert Ruiz, Secretary-Treasurer of Laborers Local 652, as a labor representative on the Santa Ana Workforce Investment Board. WORKFORCE INVESMENT BOARD RECOMMENDATION At its regular meeting of November 20, 2009, by a vote of 20:0 (de Leon, Fischer, Hood, Korthuis, Lin, Martinez, Metzler, Pina, and Syed absent), the Workforce Investment Board recommended that the City Council appoint Robert Ruiz, Secretary-Treasurer of Laborers Local 652, as a labor representative on the Santa Ana Workforce Investment Board. DISCUSSION On March 6, 2000, the Santa Ana City Council adopted a resolution establishing the Santa Ana Workforce Investment Board and appointed 35 members. In accordance with the federal legislation, a majority of the Board members and the Board Chair must come from the private sector. The remaining Board members represent education, non-profit organizations, one-stop mandated partners and local labor organizations. Currently there is one mandated labor representative seat vacant on the Board. The Orange County Central Labor Council is the only labor organization authorized to nominate labor representatives locally and they have submitted a nomination letter for Mr. Ruiz (Exhibit 1), which highlights his qualifications. 13C-1 Appointment of Labor Rep to Santa Ana WIB January 4, 2010 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. Cynthia J. Nelso Deputy City Manager for Development Services Community Development Agency CJN/LA/fj RFCA WIB Labor appt. 1-10 I 13C-2 Exhibit 1 . range ~ou~i~y ~,abor ~ec~.eration, AFL~cro . <.+; ' 309 N. RAMPAI2T STRT~BT, SbITH A oltAhlGB, CAT.TFORNIA 92868 aF~..cio (714) 385-1534 ~Ax: (714) 385-1544 TI-MAIL: info©octabox:org July 28, 2009 Linda Summers Executive director Santa Ana WorkfoT~ce Investment Board 20 Civic Center Plaza Santa Ana, CA 927Q1 RE: SANTAANA Wlti NOMINATION FOR ROBCRT RUfz Dear Ms. Summers, The Orange County Labor hederatton would Ilke to naminate Robert Ruiz for appointment to the Santa Ana Workforce InVB~trYtant Board. Mr. Ruiz is currently the Secretary-Treasurer of laborers, LaCal 652, located In Santa Ana. Laborers, local 652, is affiliated with the Orange County Labor Federation. • Robert Rutz was raised In Santa Ana. He attended 5addfebacfc High School and has served as the laborers` Secretary-Treasurer since 2003. A union member for over I5 years, Mr. Ruiz himself completed the union's apprentice program and has since directed many workers to Its extensive training program. The Orange County Labor Federation currently represents over 90 unions In Orange County, representing over 150,000 union members In the county. We ask your cooperation and speedy action on this nomination. ,..~Etu J,.~ Tefere Gebre I:xecutlve Director Orange County Labor Federation cc: Robert Rulz R$CBIVBD AUG 1 2009 ~crrww.oclaboa.org 13C-3 i 13C-4 REQUEST FOR COUNCIL ACTION 'r CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED APPROPRIATION ADJUSTMENT ? As Recommended FOR SAFE ROUTE TO SCHOOL ? As Amended (SR2S) STATE PROGRAM GRANTS ? Ordinance on 15` Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO mac. ~ ~ _ _ _ FILE NUMBER CITY MANAGER RECOMMENDED ACTION Approve an appropriation adjustment accepting $141,659 into the Traffic Safety Management Grant revenue account (account no. 14817002-52000) and appropriate the funds to expenditure account (account no. 14817611-66220) for the purpose of implementing the Safe Route to School Project. DISCUSSION On April 14, 2009 staff submitted a Safe Route to School (SR2S) grant application for design and construction of wheelchair ramps, signs, sidewalks, and pavement markers at various locations along the suggested safe routes to school for Jim Thorpe Elementary School. On August 12, 2009 the City received approval of the SR2S grant of $141, 659. The SR2S grant requires 10% City matching funds in the amount of $15,741. Completion of these safety improvements are expected in early 2010. Staff recommends this grant fund be accepted and appropriated so that these needed safety improvements can be completed. FISCAL IMPACT The appropriation adjustment will increase the Traffic Safety Management Grant revenue account (account no. 14817002-52000) by $141,659 and the expenditure account (account no. 14817611-66220) by $141,659. The City's matching funds in the amount of $15,741 are available in Measure M Turn- back Funds, account unit 03217660-66220, project 106721. APPROVED AS TO FUNDS AND ACCOUNTS: --e 1 Raul Godinez II Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency 20A-1 i 20A-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED ? As Recommended CONTRACT RENEWAL FOR ? As Amended ? Ordinance on lst Reading MISCELLANEOUS CONSTRUCTION ? ordinance on 2°`' Reading MATERIALS ? Implementing Resolution (SPEC. NO. 05-072) ? Set Public Hearing For CONTINUED TO ~L / FILE NUMBER C TY MANAGER RECOMMENDED ACTION Renew the contract with The Home Depot for the purchase of miscellaneous construction materials for a one-year period in an annual amount not to exceed $95,000. DISCUSSION The City maintains in excess of 50 buildings, including City Hall, the Corporate Yard, the Police Administration and Holding Facility, fire stations, recreation and senior centers, libraries, and park facilities. Blanket Order Lists consisting of vendors that provide supplies and services required by agencies on a consistent basis are established annually. Home Depot provides construction materials such as lumber, electrical and plumbing supplies, hardware, and fixtures that are used extensively in the maintenance of City facilities. The contract will ensure that all necessary materials are available when required. Although, most of the purchased made against this blanket order are in increments of $500 or less, larger projects in the past two years include supplies for the Police Department training course, After School Adventures program at the E1 Salvador Center and for the Catalina camp-out for youth. On July 18, 2005, the City Council awarded a contract to The Home Depot, a Santa Ana vendor, for a one-year period, with provision for four one-year renewals. The Home Depot has performed satisfactorily during the past contract period, and staff recommends the final renewal of the contract. 22A-1 Contract Renewal for Construction Materials January 4, 2010 Page 2 FISCAL IMPACT Funds are available in the various departmental Maintenance & Repair of Buildings & Grounds accounts (no. 62320). Francisco Gutierrez Executive Director Finance & Mgmt. Services Agency FG/Vd0/05-072R4 .2: i 22A-2 y. REQUEST FOR COUNCIL ACTION cx.„„~ CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED ? As Recommended CONTRACT AWARD FOR LEASED ? As Amended ec ? Ordinance on 1 Reading VEHICLES ? Ordinance on 2"d Reading (SPEC . NO . 0 9 - 0 5 5 ) ? Implementing Resolution ? Set Public Hearing For CONTINUED TO C;. ti - FILE NUMBER ITY MANAGER RECOMMENDED ACTON Award a contract to Enterprise Fleet Services for leasing of vehicles for a three year period with provision for one, three-year renewal in an annual amount not to exceed $145,000. DISCUSSION A variety of City departments lease vehicles on closed-end leases to perform routine business. The Santa Ana Police Department leases 18 vehicles for three-year periods to cover field assignments for a variety of police personnel, including in investigation and training. The Fire Department leases four vehicles assigned to Deputy Chiefs. The Work Center requires a vehicle in the administration of the Work Experience and Literacy Program grant funded by the Department of Labor (DOL) and the One-Stop Program funded by the Workforce Investment Act. The notice inviting bids was advertised on November 4, 2009, and bids were solicited. A summary of the bid invitations and bids received is as follows: 15 Invitations For Bid mailed 2 Invitations For Bid mailed to Santa Ana vendors 6 Bids received 1 Bids received from a Sana Ana vendor Bids were opened and evaluated on November 16, 2009. The bid received from Enterprise Fleet Services, a Santa Ana vendor, is responsive to the specifications and meets the City's requirements. 22B-1 FISCAL IMPACT Funds are available in the FY 2009-2010 budget as follows: Police Contract Services - Professional Account (no. 01114403 62300); Work Center's One-Stop and DOL Work Experience and Literacy Program Accounts (nos. 12318751 62300 50% and 13218742 62300 50%) and Fire Prevention Contract Services Professional Account (no. 01115310 62300). Funds for the duration of the contract period will be included in the proposed budgets in subsequent fiscal periods. APPROVED AS TO FUNDS AND ACCOUNTS: fOR PM Vy Paul M. Walters Francisco Gutierrez Chief of Police Executive Director Police Department Finance and Mgmt Svcs Agency 7 Marc Martin ynthia J. Ne son Fire Chief Deputy City Manager for Fire Department Development Services Community Development Agency KM 22B-2 ABSTRACT OF BIDS CONTRACT AWARD FOR LEASE VEHICLES (09-055) VENDOR ENTERPRISE ACME AUTO MERCHANT FLEET MANAGEMENT LEASING, LLC AUTOMOTIVE GROUP LOCATION SANTA ANA CONNECTICUT NEW HAMPSHIRE TOTAL 10 VEHICLES MONTHLY LEASE $5,271.18 $5,475.57 $5,918.48 VENDOR WONDRIES THEODORE PENSKE FLEET GROUP ROBINS FORD TOYOTA ~ LOCATION ALHAMBRA COSTA MESA DOWNEY TOTAL MONTHLY LEASE PARTIAL PARTIAL PARTIAL Exhibit 1 22B-3 22B-4 REQUEST FOR ~ COUNCIL ACTION ~ CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED ? As Recommended CONTRACT RENEWAL FOR LIBRARY ? As Amended st ? Ordinance on 1 Reading CATALOGING AND PURCHASE OF ? Ordinance on 2"d Reading BOOKS AND MATERIALS ? Implementing Resolution (SPEC . NO . 0 6 -167 ) ? Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Renew the contract with Brodart Company for library cataloging and purchase of books and materials for a one-year period in an annual amount not to exceed $267,000. DISCUSSION The Library provides adult and youth programs to 125,528 card holders annually. Approximately 21,000 books and materials are purchased yearly, including a Spanish concentration of 25 percent. Brodart offers a wide selection of materials in the children, young adult and general adult categories. Of the 21,140 items purchased last year, 7,495 were purchased for adults, 10,959 for children, and 2,686 for young adults. Brodart supplies fiction, non-fiction, audio, and video materials in English, Spanish and Vietnamese. Brodart catalogues and bar codes all items in the Library database so that they can be entered into circulation as soon as they arrive at the Library. On January 2, 2007, the City Council awarded a contract for a one-year period with provision far four renewals. Brodart has performed satisfactorily during the previous contract period and staff recommends renewal of the contract. 22C-1 Contract Renewal - Library Cataloging January 4, 2010 Page 2 FISCAL IMPACT Funds are available in the Public Library Grant account (no. 15211150 66600); Technology & Support Services account (no. 01111190 62300); Library Adult Services account (no. 01111150 66600); and the Library Youth Services account (no. 01111160 66600). APPROVED AS TO FUND AND ACCOUNTS: 1~~%c~ Gerardo Mouet Francisco Gutierrez Executive Directo Executive Director Parks, Rec. & Comm. Svcs. Agency Finance & Mgmt. Services Agency BP 22C-2 REQUEST FOR COUNCIL ACTION ~y~~ - ~ 'Fi r~ ~ - CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED ? As Recommended CONTRACT RENEWAL FOR BACKFILL ? As Amended ? Ordinance on 1S` Reading STAFFING (SPEC . NO. 08 - 027 ) ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Renew the contracts for back-fill staffing for a one-year period in the annual aggregate amount not to exceed $95,000 with the following vendors: VENDOR: LOCATION: Accountants International Irvine (former Accountants Inc including merger with Account Pro) APR Consulting Inc. Irvine Government Staffing Services Inc. Riverside (former Munitemps) DISCUSSION On March 3 2008, the City Council approved a financial software implementation project. Subsequently, On May 5, 2008, the City Council awarded contracts to four agencies to provide backfill staffing to complete on-going duties while staff devoted time to design, set-up and test the software. The core financial software modules of accounting and purchasing went live on September 1, 2009. The back-fill staff has been reduced as City employees assume their regular duties. However, some assistance is still required during the post go-live "settle down" phase, and for implementation of the Lawson yearend processing component. The vendors have performed satisfactorily during the past contract period and have agreed to renew their contracts without an increase in pricing. Due to company mergers, the four original vendors are now three companies. Staff recommends the first renewal of the contract. 22D-1 Contracts Award for Temporary Employees January 4, 2010 Page 2 FISCAL IMPACT Funds are available in the Finance Management Lawson Utility Software account (no. 10910141 62302). Francisco Gutierrez Executive Director Finance and Management Services Agency KM/08-027R 22D-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: January 4, 2010 TITLE: APPROVED ? As Recommended CONTRACT AWARD FOR ? As Amended ? Ordinance on 1S` Reading COMMVAULT PREMIER ? Ordinance on 2"d Reading MAINTENANCE RENEWAL ? Implementing Resolution (SPEC . NO . 0 9 - 0 61) ? Set Public Hearing For CONTINUED TO FILE NUMBER luz CITY MANAGER RECOMMENDED ACTION Award a contract to En Pointe Technologies for the purchase of CommVault Maintenance Renewal, for a one year period, with provision for two, one- year renewals in an annual amount not to exceed $30,000. DISCUSSION The Information Services Division provides all computerized support for the City Hall and the Santa Ana Police Department Data Centers. In 2007 the volume of data began exceeding the capabilities of the then current data backup and recovery software system. As a result the elapsed time required to backup data in these two data centers exceeded the time spanbetween the end of one City business day and the start of the next business day. Additional methods and procedures were needed to ensure the integrity of the data transferred and stored from these data centers. An assessment of commercially available backup and recovery software was conducted. After extensive technical analysis, onsite testing of products and reference checking, the software application from CommVault, Inc. was deemed to be the best match for the needs of the City. CommVault data backup and recovery software was installed and has performed satisfactorily as well as the maintenance/customer support provided with the product has been excellent. The initial term of maintenance and support is expiring and staff recommends that it be renewed. This will provide updates, upgrades and technical support to keep this critical software operating at peak efficiency. 22E-1 Contract Award for CommVault Premier Maintenance Renewal January 4, 2010 Page 2 The notice inviting bids was advertised on December 9, 2009 and bids were solicited. A summary of the bid invitations and bids received is as follows: 4 Invitations For Bid mailed 2 Bids received Bids were received and opened December 17, 2009 (Exhibit 1) . The bid from En Pointe Technologies is responsive to the specifications and meets the City's requirements. FISCAL IMPACT Funds are available in the Finance Information Systems Strategic Plan Maintenance and Support account (no. 10910147-62300). APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Mgt. Services Agency 22E-2 ABSTRACT OF BIDS CONTRACT AWARD FOR COMMVAULT PREMIER MAINTENANCE RENEWAL (09-061) Vendor En Pointe Nth Generation Technologies Computing, Inc Location Gardena San Diego Total $ 26,168.30 $ 27,265.00 Exhibit 1 I 22E-3 22E-4 REQUEST FOR COUNCIL ACTION ~J M ,t~ CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED ? As Recommended CONTRACT RENEWAL FOR AUTOMOTIVE ? As Amended sc ? Ordinance on 1 Reading PARTS ? Ordinance on 2°d Reading (SPEC . NO . 0 9 - 0 0 9 ) ? Implementing Resolution ? Set Public Hearing For j ~ CONTINUED TO /f ~ FILE NUMBER CITY ANAGER RECOMMENDED ACTION Renew the contract with Orange County Auto Parts Inc. for the purchase of miscellaneous automotive parts for a one-year period in the annual amount not to exceed $50,000. DISCUSSION The Fleet Maintenance Division of the Finance and Management Services Agency manages a comprehensive preventive maintenance and repair program. As such, maintenance of automotive parts is required to manage the City's extensive fleet. Frequently used parts are purchased and maintained in a 1300 stock inventory at the City's Corporate Yard. Non-stock items are ordered on an as-needed basis. On March 2, 2009, the City Council awarded a contract to Orange County Auto Parts for a one-year period with provisions for two one-year renewals. The vendor have performed satisfactorily during the past contract period and has agreed to renew the contract without an increase in pricing. Staff recommends the first renewal of the contract. FISCAL IMPACT Funds are available in the Equipment Maintenance, Garage Operation account (no. 07510100 63202). Francisco Gutierrez Executive Director Finance and Management Services Agency KM/09-009R 22F-1 22F-2 REQUEST FOR COUNCIL ACTION ' ~..~t~ CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED ? As Recommended CONTRACT RENEWAL FOR ? As Amended UNLEADED FUEL ? Ordinance on 1St Reading ? Ordinance on 2"d Reading (SPEC . NO . 0 6 - 0 6 6 ) ? Implementing Resolution ? Set Public Hearing For CONTINUED TO ~'cf, ~ - FILE NUMBER CITY MANAGER RECOMMENDED ACT{ON Renew the contract with G.P. Resources, Inc., for the purchase of unleaded fuel for a one-year period in an annual amount not to exceed $900,000. DISCUSSION The Fleet Division of the Finance and Management Services Agency provides fuel for all City vehicles, including gasoline and diesel operated vehicles. The fuel is stored in underground tanks located at the Corporate Yard, the Police facility, and Fire Stations No. 1, 4, 5 and 6. Pricing for the City's fuel purchases are based upon daily benchmarks published by the Oil Price Information Service (OPIS), plus fixed fees and applicable taxes. As in past years, prices in the volatile petroleum market have repeated the same high season and low season, but with a marked reduction in the price structure over the last 12 months. G.P. Resources, Inc., projects the price on unleaded gasoline to follow the same volatile pattern in the next contract cycle. The City has established a program to evaluate the use of alternative fuels to reduce consumption of gasoline and diesel fuel. Currently, all 11 of the City's street sweepers are fueled with compressed natural gas (CNG) Since the 05/06 fiscal year, 21 gasoline/electric hybrid vehicles have been added to the City fleet. The City reduced annual usage of unleaded gasoline by 4.45% in 2009. On June 5, 2006, The City Council awarded a contract to G.P. Resources, Inc., for a one-year period with provision for four, one-year renewals. The vendor has performed satisfactorily during the past contract period and has agreed to renew the contract without an increase in pricing. Staff recommends the third renewal of the contract. 22G-1 Contract Renewal for Unleaded Fuel January 4, 2010 Page 2 FISCAL IMPACT Funds are available in the Gas & Diesel account (no. 07510100 63300). The amount of the contract is estimated, as the actual expenditures will depend upon the requirements throughout the annual period. Francisco Gutierrez Executive Director Finance and Management Services Agency KM/06-066R3 22G-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED ? As Recommended CONTRACT AWARD FOR DIESEL ? As Amended EMISSION CONTROL SYSTEM ? Ordinance on 1S` Reading ? Ordinance on 2"d Reading (SPEC . NO . 0 9 - 0 6 3 ) ? Implementing Resolution ? Set Public Hearing For CONTINUED TO /Cam; FILE NUMBER CITY ANAGER RECOMMENDED ACTfON Award a contract to Ironman Parts & Services, using the City of National City's contract, for the purchase and installation of three diesel emission control systems in the amount not to exceed $46,857.49. DISCUSSION The Fleet Division of Finance and Management Services Agency maintains 762 operated vehicles. Additionally, staff monitors Government rules and regulations on emission standards required of large fleets. Public Fleet Rule Section 2022 (dated February 20, 2007) from the California Air Resources Board, in conjunction with the Air Quality Management District (AQMD) required the installation of particulate diesel traps in trucks from year 2002 and older. Staff complied by installing nine vehicles with diesel emission control systems in December 2007. To remain in compliance of the phased installation of the emission control systems, it is required that an additional three vehicles undergo the emission control system. A final phase is required by 2011. The Santa Ana City Ordinance No. NS-2312 authorizes the City to purchase against contracts from any public agency utilizing a competitive bid process. The City of National City's contract with Ironman Parts & Service for Cleaire Horizon Electrical Regenerated Systems was awarded as a result of open, competitive bidding, and meets the City's requirements. Staff recommends the purchase of emission systems for two chipper trucks and one large truck mounted crane. A five percent contingency has been included in the award amount. FISCAL IMPACT Funds are available in the Improvement Other Than Building account (no. 03110101 66400) _ Francisco Gutierrez Executive Director Finance and Management Services P~en~Ey 22H-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED ? As Recommended ACQUISITION OF RIGHT OF WAY FOR ? As Amended THE DYER/REDHILL INTERSECTION ? Ordinance on 1S' Reading WIDENING PROJECT ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Y MANAGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute the attached purchase and sale agreements, subject to nonsubstantive changes approved by the City Manager and City Attorney, with the following parties: • Kinco Redhill, LLC, a California limited liability company for $491,335 and $122,065. • HPT CW Properties Trust, a Maryland real estate investment trust for $1,703,585. DISCUSSION The intersection of Dyer Road/Redhill Avenue includes portions of Santa Ana, Irvine and Tustin. The widening of this intersection was identified as a required mitigation measure in the 1992 Irvine Business Complex (IBC) Rezone Environmental Impact Report (EIR) prepared by the City of Irvine. Improvements include widening Dyer from six to eight lanes from the Burlington Northern Santa Fe (BNSF) Railroad to Redhill and Redhill from six to eight lanes between Deere Avenue and north of Dyer Road in Santa Ana. On November 24, 1992, the City Council approved a cooperative agreement between the City of Santa Ana and Irvine to widen the intersection. The agreement stipulates that Irvine is responsible for identifying right of way impacts and that Santa Ana is responsible for negotiating any acquisitions with the effected property owners. The costs for the acquisitions are part of the project and will be paid for by the City of Irvine. 25A-1 Acquisition of Right-of-Way for the Dyer/Redhill Intersection Widening Project January 4, 2010 Page 2 Partial acquisitions of the property at 2600 S. Redhill Avenue (a hotel facility operated by Candlewood Suites) and at 2850 S. Redhill Avenue (a professional office complex operated by PJMB Commercial) are required (Exhibit 1). Each acquisition impacts only a portion of the property, with no impacts to existing buildings. Included in the acquisition of both properties is the area needed for a temporary landscape easement. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed project has been determined to be adequately evaluated in the previously prepared EIR approved by the City of Irvine in 1992. FISCAL IMPACT There is no fiscal impact associated with this action. The City of Irvine is responsible for the total cost of the project. APPROVED AS TO FUNDS AND ACCOUNTS: tnI`e~~~r~a ~ Raul odinez II Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency 25A-2 LEGEND SUBJECT PROPERTIES a f, • / ice/ C / • • ' . ~N ORgNG~ o c EXHIBff 1 ~ °Z o ~ SANTA ANA 4 ! 1 CffY COUNCIL ACQUISITION OF RIGHT OF WAY FOR THE P W A AC~NDA DATE= DYER/REDHILL INTERSECTION WIDENING JANUARY 4 2010 PROJECT PUBLIC WORKS AGENCY 25A-3 PURCHASE AND SALE AGREEMENT FOR ACQUISITIONOF REAL PROPERTY AND BILATERAL ESCROW INSTRUCTIONS (Commercial) THIS AGREEMENT, entered into this day of , 2009, by and between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California (hereinafter referred to as the "City" or "Buyer"), and Kinco Redhill, LLC, a California limited liability company (hereinafter called "Seller"), regardless of number or gender; WiTNESSETH For and in consideration of their promises, covenants and agreements hereinafter set forth, and subject to the terms, conditions and provisions hereinafter set forth, Seller agrees to sell to City, and City agrees to purchase from Seller, all that certain real property (hereinafter referred to as "said real property") described as follows: All that certain real property located in the State of California, County of Orange, City of Santa Ana, described as follows: SEE ATTACHMENT 1, ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as a portion 2850 Redhill Avenue, Santa Ana, CA) (APN 430-181-26) Said purchase and sale of said real property shall be in accordance with and subject to all of the following terms, conditions, promises, covenants, agreements and provisions, to wit: 1. Conveyance by Seller. Seller agrees to convey said real property to City, by Grant Deed, at the office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, within thirty (30) days from and after the date on which the City has approved this Agreement. 2. Title to be Conveyed. (a) Seller agrees that, except as may hereinafter be otherwise expressly provided, said real property shall be conveyed by Seller to City, as aforesaid, free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non-monetary, general or specific, including any and all leasehold interests), liens, clouds or defects in title except those exceptions shown in Paragraph 15 below. Seller hereby warrants that the title to said real property to be conveyed by Seller to City shall be free and clear as provided above. Seller further agrees that acceptance by City of any deed to said real property, with or without knowledge of any condition, restriction, reservation, exception, easement, assessment, profit, limitation, encumbrance (whether monetary or non-monetary, general or specific, and including any and all leasehold interests), lien, cloud or defect in title, shall not constitute a waiver by City of its right to the full and clear title hereinabove agreed to be conveyed by Seller to City, nor of any right which might accrue to City because of the failure of Seller to convey title as hereinabove provided. Page 1 of 9 2 5A-4 3. Title Insurance. Seller agrees to deliver to City, concurrently with the conveyance of said real property to City, within the time and at the place hereinabove specified for said conveyance of said real property, a policy of title insurance to be issued by the above mentioned title company, with the City therein named as the insured, in the amount of FOUR HUNDERED NINTY ONE THOUSAND THREE HUNDRED THIRTY FIVE AND NO/100 Dollars ($491,335) insuring the title of the City to said real property is free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non-monetary, general or specific, and including any and all leasehold interests), liens, clouds or defects in title, excepting such specific ones as city may hereinafter expressly agree to take subject to. Acceptance by City of any such policy of insurance, whether such insurance complies with the requirements of this paragraph or not, shall not constitute a waiver by City of its right to such insurance as is herein required of Seller, nor a waiver by the City of any rights of action for damages or any other rights which may accrue to City by reason of the failure of Seller to convey title or to provide title insurance as required in this Agreement. 4. Escrow. City agrees to open an escrow at the office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, (the Escrow Agent) within five (5) days from and after the date on which the City has approved this Agreement. This Agreement constitutes the joint escrow instructions of the City and the Seller and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the escrow. Escrow to close within 90 days of the City's execution of this Agreement. The Escrow Agent hereby is empowered to act under this Agreement, and upon indicating its acceptance of this Section 4 and of the General Provisions described in Attachment 2 attached hereto and incorporated herein by this reference, in writing, delivered to the City and to the Seller within five (5) days after delivery of this Agreement, shall carry out its duties as Escrow Agent hereunder. City agrees to bear and Escrow Agent is hereby authorized to charge to the City the cost of any transfer taxes, recording fees, cost of title insurance, reconveyance fees, document preparation fees, escrow fees and any other closing costs incidental to the conveying of said real property to City. Penalties for prepayment of bona fide obligations secured by any existing deed of trust or mortgage shall be waived pursuant to Civil Code Procedures Section 1265.240. The liability to the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it under Section 4, Section 6, Section 11 and Attachment 2 of the General Provisions of this Agreement. 5. Proaerty Taxes. Such real property taxes, if any, on said real property for the fiscal year within which said real property is conveyed to City as are unpaid at the time of said conveyance shall be cleared and paid in accordance with the provisions of Section 4986 of the Revenue and Taxation Code of the State of California. Seller shall be eligible for a refund under Section 5096.7 of the Revenue and Taxation Code of the State of California for that portion of property taxes on said real property for said fiscal year which have been paid prior to the date the deed conveying said real property to City is recorded which is allocable to that portion of the fiscal year which begins on the date the deed conveying said real property to City is recorded and made uncollectible if unpaid by reason of Section 4986 of the Revenue and Taxation Code of the State of California. All unpaid taxes on said real property for any and all years prior to the fiscal year within which said conveyance is made shall be paid by Seller before conveyance of said real property to City. Page 2 of 9 25A-5 6. Payment of Purchase Price. City agrees to pay to Seller, and Seller agrees to accept from City, as and for the full purchase price for said real property, fixtures & equipment (improvements pertaining to the realty), goodwill (if any), and severance damages, the total sum of FOUR HUNDERED NINTY ONE THOUSAND THREE HUNDRED THIRTY FIVE AND NO/100 Dollars ($491,335). City agrees to deposit said purchase price in escrow with the Escrow Agent within THIRTY (30) days from and after the date on which the City has approved this Agreement, and the Escrow Agent is hereby authorized to pay the same to Seller upon and after: (a) Conveyance of said real property by Seller to City as hereinabove provided; (b) Acceptance by City of a Grant Deed conveying said real property to City; (c) Delivery to City of the policy of title insurance as hereinabove provided; (d) Recordation of the Deed conveying said real property to City. 7. Possession. Seller agrees to deliver to City, on the date the Deed conveying said real property to City is recorded, quiet and peaceful possession of said real property, which shall be made free by Seller of all personal property. 8. Left Blank 9. Waivers. The waiver by either party of any breach of any covenant or agreement herein contained on the part of the other party shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement nor a waiver of any breach of any other covenants or agreements contained herein. 10. Heirs, Assigns, Successors in Interest. This Agreement, and all the terms, covenants and conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective parties hereto. 11. Time is of the Essence. In all matters and things hereunder to be done and in all payments hereunder to be made, time is and shall be of the essence. 12. Permission to Enter on Premises. Seller hereby grants City, and its authorized agents, permission to enter upon said real property at all reasonable times prior to close of escrow for the purpose of making necessary inspections. 13. Just Compensation. Seller acknowledges and agrees that said purchase price is just compensation at fair market value for said real property and includes payment for fixtures & equipment (improvements pertaining to the realty), goodwill (if any), and severance damages 14. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O. Box 1988, in the City of Santa Ana 92702, County of Orange, State of California. The mailing address of the Seller is: PJMB Commercial ATTN: Marc Barkdull 7060 Koll Center Pkwy, Suite 334 Pleasanton, CA 94566-3109 Page 3 0l') 25A-6 15. Exceptions. City agrees to accept title to said real property subject to the following: NONE. 16. Entire Agreement. It is mutually agreed that the parties hereto have herein set forth the whole of their Agreement. Performance of this Agreement by City shall lay at rest, each, every, and all issue{s) that were raised or could have been raised in connection with the acquisition of said real property by City. 17. Hazardous Waste. Seller has informed City (for which City was already aware) that the site is over an existing plume that is being cleaned up and monitored by others, and for which Seller is not responsible. Seller shall not cause or permit the presence, use, generation, release, discharge, storage, or disposal of any Hazardous Materials on, under, in, or about, or the transportation of any Hazardous Materials to or from, the Property. The term "Hazardous Material" shall mean any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste", "extremely hazardous waste", or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), {iii) defined as a "hazardous material", "hazardous substance", or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. S1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. S6901 et sec.. (42 U.S.C. S6903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42. U.S.C. S9601 et sec . (42 U.S.C. S9601). 18. Compliance With Environmental Laws. Except for the known Hazardous Material plume in the ground water and related contamination noted in Section 17 above, to Seller's reasonable knowledge the Property complies with all applicable laws and governmental regulations including, without limitation, all applicable federal, state, and local laws pertaining to air and water quality, hazardous waste, waste disposal, and other environmental matters, including, but not limited to, the Clean Water, Clean Air, Federal Water Pollution Control, Solid Waste Disposal, Resource Conservation Recovery and Comprehensive Environmental Response Compensation and Liability Acts, and the California Environment Quality Act, and the rules, regulations, and ordinances of the city within which the subject property is located, the California Department of Health Services, the Regional Water Quality Control Board, the State Water Resources Control Board, the Environmental Protection Agency, and all applicable federal, state, and local agencies and bureaus. Page 4 of 9 25A-7 19. Indemnity. Intentionally Omitted. 20. Contingency. It is understood and agreed between the parties hereto that the completion of this transaction, and the escrow created hereby, is contingent upon the specific acceptance and approval of the City herein. The execution of these documents and the delivery of same to Escrow Agent constitutes said acceptance and approval. 21. Modification and Amendment. This Agreement may not be modified or amended except in writing signed by the Seller and City. 22. Partial Invalidity. Any provision of this Agreement that is unenforceable or invalid or the conclusion of which would adversely affect the validity, legality, or enforcement of this Agreement shall have no effect, but all the remaining provisions of this Agreement shall remain in full force. 23. Captions. Captions and headings in this Agreement, including the title of this Agreement, are for convenience only and are not to be considered in construing this Agreement. 24. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 25. No Reliance By One Party On The Other. Each party has received independent legal advice from its attorneys with respect to the divisibility of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question. 26. No Third Party Beneficiary. This Agreement is intended to benefit only the parties hereto and no other person or entity has or shall acquire any rights hereunder. 27. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the other, execute and deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this Agreement, without cost. 28. Applicability of Agreement To Assignees. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties to this Agreement. 29. Authority to Execute Agreement. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this 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. Page 5 of J 25A-8 30. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. The parties have executed this Agreement as of the date written below. SELLER: Kinco Redhill, LLC, A California limited liability company By Its: CITY/BUYER: CITY OF SANTA ANA BY: David N. Ream City Manager ATTEST: BY: Dated Maria D. Huizar Clerk of the Council APPR OVED AS TO FORM: Joseph W. Fletcher City Attorney BY: Jose Sandoval Chief Assistant City Attorney Page 6 oP 9 25A-9 Attachment 1 Ya~;~ i or I Ll':GaL DF.,SC:'RII'`i'N)'V AI' NU. ~3~i1-IRI-26 RE_D IiII.i, ,~1.L;NU1?. (Ii1VCU RFa[iI1.L+ [,LCi Chat cc•.tain 1rrrccl of I;mcl siltratcxl in the ('its,' t!f ti.~,n(u r1n;i, f'.tYtrnt+,' at t.)r-rrs~ro, tirntP. car i'nlili,rnt r ?yi;ing, that l~prtintt +~Y 1'tacel 2 c,J Parcel ibltt,t Ntt. +~.w-] ti'' a; she+tv,t un a trtap tlterci~f' iilcd in',_3,~+~k ?(}(i Paget •-I? anti i?f Panel t~iaps in the (tltiee ~~I the [ {~untJ hi~c:':~rtlcr rtif sr:rid C)ran~c C'rn.nr~, ile'siri_,~J as li±lhza's; tiC:C:l~i~l\C: at the .:,n~therrsterl;, tem;inus ~~i' Ihat cer•t:;n tours:: in tl:a :r~t;titi~esterly line i+f' ;girl Par.:el ? sh~xvn as "N~~Hh a9" 20'~`s" til'cst. ,141,30 ti:~l' ; O;cncc alnn_? !:,riJ SL+Ul1LP'cstcl'lYe lirtc ~c~rrlt -ty"'(.~'~.'" 4~cst I:,.?~ t~c~t, t1:•ncc ltiorih Si=.40'11}" lSa,t ?K.O; lee+,. t~ rt line p•.trallrl scitJt and 11.?~ Ccet rtisrlhtivcsicrJ}' of the sc>atL'eastcrly line e:.t said Parcel thcni;e alisr;,1; sari parullc] lint \~ni7;t ~}r}°1G'~G" Last 50~i_?4 ioi'.1; thence \'urth :i9°;trt't'1" last ?3.?3 feet t~~ rltc. s[~uth~.vesicrJy fine ~f thaf eertaut parcel c>L~ lantt de ct'if~ed in a dreiJ tc> the Atthi~un, 'T'opeka and Santa i~c Kailtva}' t_:untpany rec~rileil June ]5, 19fi(i in Bc~uk ?9b?, I'agc fit itf' Official Rccrtrd in srtiti t:)i>`ici: irf tltr. C'umriv itccnrtier of Urau`c C'oirnt,Y; tlten4:e .dons stticJ si5uthweti•Rerly line 5uuth ~h)°ai'S3" iia~t f 18U feet trt the soatheasti:rly line cif saiii I':ta'r.el tJtcncc alc~rtt; the at+ulhe:tstcrly~ line of said p<trt;cl 5itirth-{fl'.3(a3G" t~,'cst i4~1.?8 i%ct anti Sotttlt 85'j?'S?„ 1~5'e;t t~ i7 feet to the POINT OF RECINtyING. COVT,~iNI\C:/,,,4f.;; Syuarc i:'cct. S(!IiJla'T'1'O alt ('c;vcncuits, 12iy;ht~, ftigJrts-r>1=~1'':;y ?r~d Liasi~rrrc.rts r,i~Rccnrrl. F\F1IB1'f +`li+• attaehcd and by this; rcfc.rratcc madea part l;crcr:~f. ~~a t.arao L KURT Fi. Kurt It. I7~.rxell; L.S. ?8~4 ll' is * 7854 m Z7FaC A~-~ o~t~~ Page 7 of 9 2 A-1 5 0 Attachment 1 `do-= --:tJl:1C.d'~_5 ?G~OFC L'~ATA :==3 r'.1/ `Jl':, 9a '.P.;. ~ S i - P.~~•. fr ; I . ~ y r.T.. icS.f. ESSL-. ;,.fl c y{~ ~ - _I i 'r'~~ A.T. do S.I ESNi . f~f~~FCI~~~ f'>'~~~'~ 14~i~i, ~~J'- ~7 - I~c.ls ,i~ ~ i - ~ ° _ j „ 1 if} cs:~ • ~ AP N0.430-181.26 - , of 1 ? . ;n ~ LiJ u7 `U i 2ra:~~'1 SCl)TH REi1 Hll.l. A'~J:. PlliE.') w - ~ I'--. ~ ~ i N'. I N S ~ti0~ ±~iF.i~C~i'~:t_! t.a RADIUS EE~~IGTH - -'~I . . _ ~ -r, 1 M49°2%]'S)"N ;3.23' c~ f 2 tJ3'~`39,•,9.•1 33.73' I _t ( 3 5`49'7q'`,ti.S"E 11.t3~' I I }I C,_' A `;35'37`52"'N 35.37` { (t~3'~°3'!'»5"E 3.5.37 } 30'1-i:1'I 60' .i: I 11.24. _ iZll~ ~JBS'43'..'~J"E ` ~ r r'CL . 2 _ r I - - - N43; r^();' S2,°'N 311 .30; c3`- ; ` I I r; _ _ _ ._._~M•4;} Jr] SS N'_..:.341_30...1 _ tJ44° 20 ~ `;2""~l L=~57.2.i' F (N4 J' ?0' S8" ~ 0.57.23') - l- ~ DEERE AVENUE ~ ~ 4~, _ P.O.B.. _ EXHIBIT "B" ~ ` ~ ,TO,u~co~iwrA ~ f lC-GN. DF.9CRIPf10N FON 9NEET 1 O~ 1 SHEET AP NO.430.191,28 ~ ,r RfD HILL AVENUE ¦ ¦ ~ • • ..::s.~,,.~ KINCO REDkILL, LLC{{ rax ~w~m. a.oa v,a CL:1N'3ULTIN~a w:"n iY.ti FAr. y>}n+_~y/}7.. CON7/UN1Na:8,4B23QUAREFEET esnrr,+.R•r t,.:;~a ..,u: tc-t:unat Page 8 of 9 25A-11 Attachment 2 GENERAL ESCROW PROVISIONS All disbursements shall be made by Escrow's check. All funds received in this escrow shall be deposited in one or more of your general escrow accounts with any bank doing business in the State of California and may be transferred to any other general escrow account or accounts. The expression "close of escrow" means the date on which instruments referred to herein are filed for record. All adjustments are to be made on the basis of a 30-day month. Recordation of any instruments delivered through this escrow, if necessary or proper in the issuance of a policy of title insurance called for, is hereby authorized. There shall be no prorations of any existing insurance policies in this escrow. You are to furnish a copy of these instructions, amendments thereto, closing statements and/or any other documents deposited in this escrow to the lender or lenders, the real estate broker or brokers and/or the attorney or attorneys involved in this transaction upon request of such lenders, brokers or attorneys. Should you before or after close of escrow receive or become aware of any conflicting demands or claims with respect to this escrow or the rights of any of the parties hereto, or any money or property deposited herein affected hereby, you shall have the right to discontinue any or all further acts on your part until such conflict is resolved to your satisfaction, and you shall have the further right to commence or defend any action or proceedings for the determination of such conflict. The parties hereto jointly and severally agree to pay all costs, damages, judgments and expenses, including reasonable attorney's fees, suffered or incurred by you in connection with, or arising out of this escrow, including, but without limiting the generality of the foregoing, a suit in interpleader brought by you. In the event you file a suit in interpleader, you shall ipso facto be fully released and discharged from all obligations imposed upon you in this escrow. If for any reason funds are retained or remain in escrow, you are to deduct therefrom a reasonable monthly charge as custodian thereof of not less than $10.00 per month. Time is declared to be the essence of these instructions. If you are unable to comply within the time specified herein and such additional time as is required to make an examination of the official records, you will return all documents, money or property to the party entitled thereto upon satisfactory written demand and authorization. Any amendment of and/or supplement to any instructions must be in writing. The seller agrees to sell and the buyer agrees to buy the property herein described upon the terms hereof. These escrow instructions, and amendments hereto, may be executed in one or more counterparts, each of which independently shall have the same effect as if it were the original, and all of which taken together shall constitute one and the same instruction. Paoe I of 9 25A-12 ~ PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY AND BILATERAL ESCROW INSTRUCTIONS THIS AGREEMENT (hereinafter "PSA"), entered into on 2 0 0 9 , between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California (hereinafter "City" or "Buyer"), and Kinco Redhill, LLC a California limited liability company (hereinafter "Seller"), regardless of number or gender; THEREFORE, for and in consideration of their mutual promises, covenants and agreements, and subject to the terms, conditions and provisions of this PSA, Seller agrees to sell to City, and City agrees to purchase from Seller, a portion of that certain real property (hereinafter "Said Real Property") legally described and depicted as follows: SEE Attachment 1 ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as a portion of 2850 Redhill Avenue, Santa Ana, Ca) Said purchase and sale of Said Real Property shall be in accordance with and subject to all of the following terms, conditions, promises, covenants, agreements and provisions, to wit 1. Conveyance by Seller. Seller agrees to convey Said Real Property to City, by Quitclaim Deed, within thirty (30) days from and after the date on which the City has approved this PSA. 2. Title to be Conveyed. (a) The Seller's interest to the Real Property will be conveyed to City by Seller by Quitclaim Deed. (b) Seller also agrees to convey to City a Temporary Landscape Easement (hereinafter "TLE") as described in "Attachment 2", attached hereto and by this reference made a part hereof. (c) Seller also agrees to execute a License and Right of Entry Agreement (hereinafter "ROE") as described in "Attachment 3", attached hereto and by this reference made a part hereof. 3. Intentionally Omitted. 4 Payment of Purchase Price. City agrees to pay to Seller, and Seller agrees to accept from City, as and for the full purchase price for Said Real Property, fixtures & equipment, improvements pertaining to the realty, goodwill (if any), severance damages (if any), and a TLE, the total sum of ONE HUNDRED TWENTY TWO THOUSAND SIXTY FIVE DOLLARS and No Cents ($122,065.00). 5. Deadline for Pavment of Purchase Price. City agrees to pay the purchase price of ONE HUNDRED TWENTY TWO THOUSAND SIXTY FIVE DOLLARS and No Cents ($122,065.00) to Seller within THIRTY (30) days from receipt of a fully executed Quitclaim Deed and TLE. 6. Recordation of Deed. Buyer shall hold the Quitclaim Deed and TLE as an escrow holder and Buyer shall not record until City has paid Seller the full purchase price for said Real Property and receive confirmation from Seller or Seller's counsel that the full purchase price has been received by Seller. For purposes of this agreement, the City shall be referred to as Escrow Agent. Page 1 of 16 25A-13 7. Possession. Seller agrees to deliver to City, on the date the Deed conveying said real property to City is recorded, quiet and peaceful possession of said real property, which shall be made free by Seller of all personal property. 8. Intentionally Omitted. 9, Waivers. The waiver by either party of any breach of any covenant or agreement herein contained on the part of the other party shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement nor a waiver of any breach of any other covenants or agreements contained herein. 10. Heirs. Assigns, Successors in Interest. This Agreement, and all the terms, covenants and conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective parties hereto. 11. Time is of the Essence. In all matters and things hereunder to be done and in all payments hereunder to be made, time is and shall be of the essence. 12. Permission to Enter on Premises. Seller hereby grants City, and its authorized agents, permission to enter upon said real property at all reasonable times prior to close of escrow for the purpose of making necessary inspections. 13. Just Compensation. Seller acknowledges and agrees that said purchase price is just compensation at fair market value for said real property and includes payment for fixtures & equipment (improvements pertaining to the realty), goodwill (if any), and severance damages 14. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O. Box 1988, in the City of Santa Ana 92702, County of Orange, State of California. The mailing address of the Seller is: PJMB Commercial ATTN: Marc Barkdull 7060 Koll Center Pkwy, Suite 334 Pleasanton, CA 94566-3109 15. Exceptions. City agrees to accept title to subject to existing encumbrances. 16. Entire Agreement. It is mutually agreed that the parties hereto have herein set forth the whole of their Agreement. Performance of this Agreement by City shall lay at rest, each, every, and all issue(s) that were raised or could have been raised in connection with the acquisition of said real property by City. 17. Hazardous Waste. Seller has informed City (for which City was already aware) that the site is over an existing plume that is being cleaned up and monitored by others, and for which Seller is not responsible. Seller shall not cause or permit the presence, use, generation, release, discharge, storage, or disposal of any Hazardous Materials on, under, in, or about, or the transportation of any Hazardous Materials to or from, the Property. The term "Hazardous Material" shall mean any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste", "extremely hazardous waste", or "restricted Page 2 of 16 25A-14 hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material", "hazardous substance", or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. S1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. S6901 et sec . (42 U.S.C. S6903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42. U.S.C. S9601 et seg. (42 U.S.C. S9601). 18. Compliance With Environmental Laws. Except for the known Hazardous Material plume in the ground water and related contamination noted in Section 17 above, to Seller's reasonable knowledge the Property complies with all applicable laws and governmental regulations including, without limitation, all applicable federal, state, and local laws pertaining to air and water quality, hazardous waste, waste disposal, and other environmental matters, including, but not limited to, the Clean Water, Clean Air, Federal Water Pollution Control, Solid Waste Disposal, Resource Conservation Recovery and Comprehensive Environmental Response Compensation and Liability Acts, and the California Environment Quality Act, and the rules, regulations, and ordinances of the city within which the subject property is located, the California Department of Health Services, the Regional Water Quality Control Board, the State Water Resources Control Board, the Environmental Protection Agency, and all applicable federal, state, and local agencies and bureaus. 19. Intentionally Omitted. 20. Contingency. It is understood and agreed between the parties hereto that the completion of this transaction, and the escrow created hereby, is contingent upon the specific acceptance and approval of the City herein. The execution of these documents and the delivery of same to Escrow Agent constitutes said acceptance and approval. 21. Modification and Amendment. This Agreement may not be modified or amended except in writing signed by the Seller and City. 22. Partial Invalidity. Any provision of this Agreement that is unenforceable or invalid or the conclusion of which would adversely affect the validity, legality, or enforcement of this Agreement shall have no effect, but all the remaining provisions of this Agreement shall remain in full force. 23. Captions. Captions and headings in this Agreement, including the title of this Agreement, are for convenience only and are not to be considered in construing this Agreement. 24. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 25. No Reliance By One Party On The Other Each party has received independent legal advice from its attorneys with respect to the divisibility of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question. li Page 3 of 16 25A-15 26. No Third Party Beneficiary. This Agreement is intended to benefit only the parties hereto and no other person or entity has or shall acquire any rights hereunder. 27. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the other, execute and deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this Agreement, without cost. 28. Applicability of Aqreement To Assignees. This Agreement shalt be binding upon and shall inure to the benefit of the successors and assigns of the parties to this Agreement. 29. Authority to Execute Aqreement. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 30. Incorporation of Exhibits. All Attachments referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. The parties have executed this Agreement as of the date written below. SELLER: Kinco Redhill, LLC, A California limited liability company By Its: CITYIBUYER: CITY OF SANTA ANA BY: David N. Ream City Manager ATTEST: BY: Dated Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher City Attorney BY: Jose Sandoval Chief Assistant City Attorney Page 4 of 16 25A-16 Attachment 1 LEGAL bESCRIPTION RED$ILL AVENUE BNSF R'+ILW'AY CITY OF SANTA ANA That certain parcel of land situated in the City of Santa Ana, County of Orange, State of California, being that portion of Parcel I and that portion of Parcel 2 of Parcel ivfap No. 98-187 as shown nn a map thereof filed in Bonk 306, Pages 47 and 48 of Parcel Maps in the Office of the County itec:orclcr of slfid Ulunl;c Cuuuty, dcsclibccl a; luilo~as: COIYIiVlENCING at the southeasterly terminus of that certain course in the southwesterly line of Parcel 2 shown as "North 49°20'58" West 341.30 feet" on said Parcel IVfap No. 98-187; thence along said southwesterly line North 49°20'52" West 13.23 feet; thence leaving said southwesterly line North 85°49'30" East 38.07 feet to a line parallel with and 11.24 feet northwesterly of the southeasterly line of said Parcel 2; thence along said parallel line North 40°36'36" East 509.24 feet; thence leaving said parallel line North 39°39'19" East 33.73 feet to a point in the southwesterly line of that certain parcel as described in that Grant of Easement to The Atchison, Topeka and Santa Fe Railway Company (AT&SF) recorded June 15, 1966 in Book 7962, Page 62 of Official Records in said Office of the County Recorder of Orange County, said point being the TRUE POINT OF BEGINNING; thence North 39°39'19" East 34.01 feet to a point in the northeasterly line of said AT&SF parcel distant thereon NoRh 49°20'53" West 12.36 feet from the southeasterly line of Parcel I of said parcel map; thence along said northeasterly line South 49°20'53" East 12,36 feet to said southeasterly line of Parcel 1; thence along said southeasterly line of Parcel 1 and Parcel 2 South 40°36'36" West 34.00 feet to the southwesterly line of said AT&SF parcel; thence alon said southwesterl li g ne North 49°20'53" West 11.80 feet to the TRUE POINT OF BEGINNING. y CONTAINING: 411 Square Feet, more or less. SUBJECT TO all Covenants, Rights, Rights-of-GVay and Easements of Record. EXHIBIT "B" attached and by this reference made a part hereof. ~~~~Q t.AND SU9G~~ KURT R. p ~ TROXEl1 ~ ~;~s Zoo ~ 7854 Kuri R. Troxell, L.S. 7854 Date r1'~9J~ "~~~~«0 F~F CAS-CFO H:!pd atat 10104041 ~Ad min~lega1s~404 I •LG L- I i.doc Page 5 of 16 25A-17 Attachment 1 Exhibit B F~~~C~ I ~ I I ~ >J~1RC='i Tai P 1~I0. ~8- l 87 ~ c L'( LIPlE FCL. 1 I ~ PROFOSEO Rj'N~ 1~I0 U ~~I~l X30--1~1-~; I ~ ~-i 6NSF RAIL'8AY (FOR~,IERLY AT&SF) ~ 5 30'130' 60' O.R, 7~/62~ ~I ~ 6 _ NE'LY LL~E O.R 7962/62 4 ~ _ _ 1----f=- S'N'LY IIPIE O.R. 7962/62 -J ~ t ~ ~ O.R. T,p.0.8, 3 7 8450/651 11,24' 4I f ~kr~~ ~ ~ I N o ' 1 R I PARrr L Ti1;~P N0. J~--1 ~ ~ a o r w l T. 1 r ~ ~ I r ~ _ CTS o R ~,M.~. 300/-,7~~r7 ~ ~ ~ ~ z ~ i ~ I APN ~,3~J-l 7~-_7S ~ I ; ~o > LLi m u~ ^ C1. -ci' I Z ~ m ~ J V N m ~ I ~ J ~ CQ OATH TABLE I ~ w = R. ~ Ca I J N C>, _ ULl. I U U ~ ~ N0. 6RNG/DELTA RADIUS LENGTH ~ Q ~ _ a ~ M ~f 1 N49 20'52"W 13.23' JN '~O~ ~ ~ 2 N85'44'30"E 38.07' -r' $ ~v°,I M 3 N39'39'19"E ~ `nor' ~o 33.73 ' vwi v' z ` 4 N39'39' 19"E 34.01' w iw 5 S49'20'S3"E 12.36' M~ M M ~ 6 540'36 36"W 34.00' ~ ~oia Y~ I 7 N49'20'S3"W 11.80' B S85'37'52"W 35.37' a) ~ o~ ~'~b. (N85'37'46"E 35.37') Z ~nz I `1 11,24' 120' 30' 30' 60' 2 SW LY LINE PCL. 2_~ 8 i I c7~ N49'20;52~W 341.30' o - I ~,~N49 ~ 20 58 W 341_,30 ~ _ N49'20'S2"W 657,23' ~(N49'20'S8"W 657.23') 1 P'OrC, ~ QEERE AVENUE 4 ' NOTE: ~+ro,~caua,wr~ ( )INDICATES RECORD DATA LEti3A1.0ESCR1PT10NfOR PER P.M. N0, 98-187, REDHILLAVENUE P.I.B. 306/47-48 SHEET 10F 1 SHEET 6NSFRAILWAY MANNING DCSiON ¦ CDNlTRUCTI[1N CRY OF SANTA ANA ¦ ¦ ¦ N7I5 ALT[N P.Ub(WA7 PYIE CAI_FniVA 72flY7027 CON7AINlNG: 411 SQUARE FEET f CONSULTING sao~7zasns • FA; sac~720.17J ..,~„/i$f~y„ dILY B, 2009 J.N. IO-104041 Page 6 of 16 25A-18 When recorded, please mail this instrument and tax statements to: Clerk of the Council City of Santa Ana 20 Civic Center Plaza, M-36 Santa Ana, California 92701 Free recording requested by THE CITY OF SANTA ANA PER GOVERNMENT CODE SECTION 6103 SPACE ABOVE THIS LINE FOR RECORDER'S USE CANCEL AGENCY(IES) APPROVED BY DESCRIPTION DESCRIPTION A.P. RNV MAP PROJECT TAXES PUBLIC WORKS DIRECTOR WRITTEN BY CHECKED-O.K. NUMBER NUMBER NUMBER 430-181-26 Portion of 2850 Redhill Avenue, Santa Ana, California Attachment 2 TEMPORARY LANDSCAPE EASEMENT DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Kinco Redhill, LLC., a California limited liability company Does Hereby Grant to THE CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and Jaws of the State of California, easement for public right-of-way purposes for the right to plant, maintain, replace, or remove landscaping in, upon, over and across that certain real property in the City of Santa Ana, County of Orange, State of California, located at 2850 Redhill Avenue, Santa Ana„ legally described as follows: SEE ATTACHMENT 2, EXHBIT "A"and "B" -LEGAL, ATTACHED HERETO; AND BY THIS REFERENCE MADE A PART HEREOF: This permission is granted subject to the following conditions being fulfilled by City: (A) Improvements will be constructed in the areas as shown in Attachment 2, Exhibit B, attached hereto and made part hereof. Landscape improvements will be constructed by the City of Santa Ana, or their designee, in the areas as shown in Attachment 2, Exhibit C, Revision 4. (Revision 4 is the resulting landscape plan as agreed to by the City and Klnco Redhill, LLC.) (B) During construction of driveway approaches, access to the business will be maintained at all times. In some cases, construction of one-half of a driveway approach at a time may be required. In this case, the contractor shall provide a temporary asphalt driveway to the business until a permanent concrete driveway is constructed. At no time shall the contractor block access to the business during construction. (C} City shall indemnify the undersigned against and hold the undersigned harmless of any loss of or damage to any property, or injury or death of any person whomsoever, proximately caused in whole or in part by negligence of City of by any act or omission for which the City is liable in the exercise of the rights herein granted. It is understood that the period of use of said easement shall exist for a period of no more than 12 months and shall commence with the first entry of owner's property by City's contractor. Upon completion of street widening work, the Easement Area shall be maintained with landscaping in compliance with City ordinances as applicable to this site. This easement shall terminate upon completion of said construction and in any event shall cease and terminate not later than December 31, 2011. Kinco Redhill, LLC By: Date: , 2009 Its: STATE OF CALIFORNIA }ss. COUNTY OF } On ,2009, before me, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or 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. Signature SIGNATURE OF NOTARY PUBLIC PLACE NOTARY SEAL ABOVE Page 7 of 16 25A-19 Attachment 2 Page J of 1 Lha;:U.. DESC'R[l'htON :i P It 0.43U-181-1ii I~OIt'I'F;IVII'OR:1Rti' L.riVpS('API: E:1SE.li!';iv'I' RF.D 11ILL:i~'E~iUE (T:I.\C,'U R.EDIIiJ,L, LI,C} 'hhat certain parcel of land situated in the City of Santa Ana, County of {;)rmgc, State of C:aliti~rni•_t, being that portion of 1'arccl ? of Parcel ~7ap ltio. 93 13? as i;hovrn on a m~ip thereof lilcd in Book 30G, Pages -1? and X18 of Parcel ~•laps in the Uffiec of the C'uunty Recorder of said Oranbc C'nunty, inchuled within a ;trip of land I'_.U(1 feet wide, theucEtheasterly line of which is dcs~ribccl as loilows: 131~=C>t?~I~IN(; ul a ]quint in the soutlt~~~cstcrly lint, oC s;rid Parcel 2 distant alom~ laic] line North 49°20'52" 1•Vest 13.23 feet from tho southeasterly terminus of that certain course in said southtvcstcrly lint shown as "1\orth X19°20'58" i4'cst 341.30 lcct"; thence North 85°49'3U" East 38.(]7 feet to a line parallel with and 1 L24 feet northwesterly of the southeasterly line of said Parcel 2; thence ulung said parallel line North 4U'36'3G" East 509.24 feel; thence `orth 39°39'19" t:ast 33.73 feet to the southwesterly lino of that certain lsarecl of ]and described in a deed to the Atchison, Topeka and S;tnta Pc Railway C'ornpany recorded June !5, !f)GG in Gook ?c)6?., Puac GZ of Ufticial ltecurds in said Office of the t'ounty Recorder of Urant;c County. Said strip shall be lengthened ur shurtctted so 7s to terminate nurthc~tsterly in said southwesterly line c>f said deed t4 the :ltchiscm; Topeka and Santa Fc Railway Company and sauthweslcrly in the southwesterly line of said Parcel 2. CO\7':il!\I:VG: li,9K4 Square Fcet, S1.~13.J1+.(°f TO ali Covenants, Rights, Rights-ut=1i'ay and @ascntcnts ot'Reu:~rd. >!;XIilI31T'`)<i" attaches! and by this rcf'erencc tnaelc a part hereof. SAND S~9GF~ KURT R. ~ _ ~l ! ZO aS --r TROXELL Kurt R. "l'ruxell, L.S. 7854 [)ate i4 7854 ~ CA~i~o Page 8 of 16 25A-20 Attachment 2 r,or~: IrdC[CA7ES RECORD CA G1 PER P.!d. N0. gQ-;87, a. ~ . a: s.r'. ~s~ar. ~ a~ ao' ~ .~Q I . °ER ~9.R. 7962/62 ~ .--f I I I f 3 I S'lf'I._'' LINE: - ~ ~I ~2' M f C'~IZ D , h . 7962/6?- - ? > i. ~ I 11.2!' ~ j i ?;~,RCr ~ M:~1F' h1O, 9~_.. I X37 r f w ~ v .n AP N0.430-181-2fi ~ N o I ~ ~n4.).c~ i,.i t1J I {2850 SOUTH RED FiILL Ab~ENUF..) ~ i' ~W ~ o ~ ~ + I DATA TABLE ~ 1 0 ~ . T~ I r7 ~ c~ NC~ BRNG/DELTA RAD1i1S LENGIH v~ I :t~ ~-----__o__-_..---------- z Q a, ~o ~ 1 N49 2,0'52"YI 13.23' 2 N85°49'30"E 38.07' ~ 3 N39°39'19"E 33.73' a LUl ~ i 2' ~ ~ 30' (30' I 60' 111 c I ti.24' ~~C, SVi'LY LINT PCL. 2 7. ~ r7 N49 20541.30 M-" I ~ ry~ (Nh9°20'58"W 341,,30,,,____, _ Nd9°2O'S2"W"W 657.23' {N~19'20'58"W 657.23') C~DEERE AVENUE P•~•~~. EXHIBIT ~B" , rou:ca~urvA AP N0.436.181-28 SHEET 10F 1 SHEET "1,/.h NINp ~ ptplpN (1 G0N l7p y~Ylp•1 FOR TEMPORARY LANDSCAPE EASEMENT RED lint AVENUE ~ ~ ~ a7ZS KTOp /cncwAY (~(~NCO REDHILL, LLC R.++E, currn-u ~aas•rn~ - ~ C O N S U LTI N C~ ow °nssOS . p°x yyar~sYq ..w.pty-,ca,,, CONTAINING: 8,984 SQUARE FEET PE$RL'ARY 1.. iC0f3 N. IQ-104Q41 Page 9 of 16 25A-21 Attachment 2 EXHIBIT C Revision 1 ;o~oo~~ ®Iobo NR i ' ~i ~ ~ ~ y~~~ CIA I DEERE AVENUE g ~ I ~ ~ z f _ 9. ~ ppI* n a~ 9 51 ~ ! H: 1 z I g R~ 'A~Ai~ m I la a~aF a F ~ 84° ..q ~IFI~ E~~!~~~ ~S I I ~ ~i~s~' ~ did~d d ~ i I 1 1 ~ l j 4 F. F :!i ~ I I ~ ~ ~ I I~~~' _L. I ~Idfdaad~d881 r m alil~g ~ F-f + ~ ~ ~({~a n I I ~ ~ 6."~.~. O @• 1 ~ ~ mS i i ~ ~ 1 d d d~d'd d did ~ ~ ~6~a ~o ~"1 Ao I S ° I ' : ~4 I ' 1 i I 4 m i _ ~ I' ~ r I r i s' i f~Tl I i y z j g c I ' ¦N ~ fTl N - Y \ i I I ~ a r' i~ i I I ~ ,d I ____i- ~ ~ _ - -ds ~ ~ ' ! Y:- I 3 OEI I i ~f 'oyl 1 ; ~ 8`= I ; tt _~I I ' {~ti i ~ Fo~~~ S% I- ~ I I I Z U$ r ' n 31 ~ I i ' - N @I ~ ~ 11 ~ r zz~t Rai ! k; ~ i I ~j i a I a ~ , 1- 1 ~ ; _ ~ C ly Y MATCHLINE SEE SHEET lP-O6 Page 10 of 16 ~I 25A-22 Attachment 2 EXHIBIT C Revision 2 i C .ERE l1V= NUE i .L ~ \r ~ ~ i i i ~ i A i ~ i Q A 1 1 ; 1 ~ 1 t; S t 1 ' . 1 ,y ~ 1 j 1 1 ~ ' ~1 ' ~ ~ m ~ s N ~ i` g; aQ Z f.. s < ~ ~ y~ n O C ! i/ ~ ~ ~ ~ ~ ~ Z o ~ i ~~i ~ _ i < i ~ ~ R 9~ r. ° su ~ ~ ~ l ! r ' ~ ~ 9 i a a I ~ A ~ #g~3 ~ ' ~ x , o ~ . t ~a~: _ _ Page 11 of 16 25A-23 Attachment 2 EXHIBIT C Revision 3 __._-~_..__._-h.__._.-y-._-._.._._____._.__.___..___F i ~=.FRE AV= NUF i i - i ~ i i a i v o Y A i i ~ ~ ~ ~ i i ~ i i F i i o~ o i ~ ~A ~ \ n i ~ o i R N T R-. x~ °v° zi ~ R~.,.,., FF ~5 o r m ~ _ = i i 36 ~p C7 n C. r ~ t Y .A. s~ Z i ~ Q ' y ~ ^A y o m i p c ! _ ~ ~ i i z~ ~ ~ ~ Z i ~ i i ~ ~S i $ ~ _Li.. i. ~'Y. R i V ~ i i h I ~ _ - ~ ~ ~F ~ ~ a ~ ~ ~ ~ ' ~ ~ ~ > i ~ - - i i Page 12 of 16 25A-24 Attachment 2 EXHIBIT C Revision 4 i io ~ i.,;., j_ ~ , LIE=KE AVENUE I - ~ i~ \ i _ ' ~ A 1 n^A•' 0 1 v ~ 4.. I _ I ~ 1 1 11 ' 7 1 1 i i q ~ _ i R ~ i ~ _ ~t .0 N i ~R ry• o H ~ y as 7n N 1 ~ ~8 C C1 ~ i.~..SS ~ F: ~ z ~ i A S R p~~ A O ~ ~ R ~~N m ro i ~ o ~ ~ c'~ ~ r ~ o m ~ ~ , ' ~ i Yo i f is ~ R :y w i !E ~ ; s 5 j ; ~ ~ a . ~ i F" ~ p p g~a~, e . i R~ ~i ~ lr ~ I ~ 1 Page 13 of 16 25A-25 Attachment 3 LICENSE AND RIGHT OF ENTRY Kinco Redhil, LLC, a California limited liability company (hereinafter referred to as "Licensor, does hereby grant to City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and/or laws of the State of California, its officers, agents, employees or representatives (collectively referred to as the "Licensee'), the right to enter and construct street, sidewalk and landscaping improvements necessary for the Dyer Road/Barranca Parkway/Redhill Avenue Street widening project as shown on the real property described as follows: SEE ATTACHMENT 1 ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF This permission is granted subject to the follov~ing conditions being fulfilled by City: (A) City to deposit $491,335, plus closing costs into escrow with First American Title Insurance Company. (B) Permanent Street Improvements will be constructed in the area identified in the Attachment 1, Exhibit "A and "B" drawings. (C) During construction of driveway approaches, access to the business will be maintained at all times. In some cases, construction of one-hall of a driveway approach at a time may be required. In this case, the contractor shall provide a temporary asphalt driveway to the business until a permanent concrete driveway is constructed. At no time ~ksall the contractor block access to the business during construction. (D) The Licensee agrees to indemnify and hold harmless, Licensor, from any liability arising out of the Licensee's exercise of this License and Right-of-Entry. The Licensee further agrees to repair any damage to said property caused by the exercise of this License and Right of Entry at its sole cost and expense and to restore said property, with the exception of the improvements left thereon, as nearly as practicable to the state in which it existed prior to the use of the property by the Licensee. (E) No right of entry to existing buildings is conveyed by this instrument. This License and Right of Entry shall expire upon completion of said construction work, and in any event, no later than December 31, 2011, unless extended by written agreement between the undersigned and the Licensee. LICENSEE: CITY OF SANTA ANA LICENSOR: Kinco Redhill, LLC a charter city and municipal corporaton duly A California limited liability company organized and existing under the Constitution and laws of the State of BY California Name: Title: BY: David N. Ream City Manager APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney BY: Date Jose Sandoval Chief Assistant City Attorney Page 14 of 16 25A-26 Attac~lrlent 3 EXFITkI'1' LBG:LL DF.SC.'C21T''f11>N Psge 1 of l RE:D I11LT..a1'lNU1•: T(tttt Cectuin parcel nF 1 m9 ~ititatt;rl in ttie. C.'ity taF Sc.nLt Ina, l'nunt}~ o€ (h;lT;i;c, ~tat,~ .p( t';ili(%,Ilil i l,.i~l ~hsl s,•ouf f z I r,j J tr 1. i l ui.(`I I'+1 ~ i'~i. ! ti t ~a l lilc,l in tier}; ~ r~ p a rill ;i fs,iJ~ Ilti~::iil' ~4-; I util 4~ i~f l'ar:1~ ~1 ihs m this (.ilGii. , I'thc (a,urd~ I+is.orfb~r ul ti,tiri C1ranC+c (r~f.ntu, tli.a,nbcd t, l.;llfi,;ti; liEGl:\:~1~C at tlu .e;;taheastcrl;; I,Itt;irus at~ Ihar cctt;tin cuurs-~ in Ilse soutll~,~r~tcrly €inu r~l~ .:aid Pruc:el 2 shown as "North a9',~,U'i,;" li•'cst ,ia I,?ii icet' ; lhcrce alnn_: r, line North 4!T"?r}'43" 4Vcs( I _ tid sUUli:u'caerl.:; ~,vith an<l l l.'q (ccl r;urlhacrtrrly r~f~ihlc~sCal1 .r„(c ly•line c5f sail 1'~rccll2;~tthcnCCta(oF~'su'? . parallel Iine ~~ottit dQ''iG,jS•. Lazt Sfi9,24 Jeet' thence \orth 39''±f' f ~ j satidttvcsccrl)~ line of fnat certain tncl nt ]anlf dcsct'ibcd in a decd tot the 1k:hi3i:~n3'I'ncr~a alt i P' Santa Fu kail~.va~~ Cutnpany rec4r 1,eil June li, 19r,6 nt Eiouk 71)62. > in said C)fficc of lttc County Rccnrdet' of Urange County; lltencd all, S shi~ltef ullhwc~,terlvllinc South a9°=(i'S" Past Il.BU ket !o the si,utheasterly Zinc of said Parcta thence along alts sc~uthuas(crly !inc oC said p;arcci South li)-;3fi':)r" 4Vcs; )4~L?8 foci anrE S~tuttt 3~'37'y?'• 1~\'e;l .15.17 fci•t t~s tha ['O1NT OF Ti?,CINiVL~JC. ' (-ONT:LININC;: fi,_(i~ Square Fcet.. tiCIB.1~C'1"T'U aft (;ovcnants, Ril;ttts, Rikltts-uf ti4'ay anti E;tsiani;ats i;f [:ccnn . l;:\HIBI'T °iIl";3ttach~aJ an+3 tay Q,is rcForenc4 nf,ade a port hcrritP, I ~~~Q I.ANp S6~G F ' KUR7 R. ~ 'urt It. l rux:ll, L.S. 7R~.{ L~ tc * 7854 ~ ~~9~ r?/3tlZ~~~\T ~~f CA1-~E~ Page 15 0(16 i i 25A-27 Attachment 3 'o,-- . ~ I Fir. 'J. F. '-ti: i .,.I ~ _l_ ~ -r . ~ , _ , ~ ~ I , i f I i l:ti . ~ ~ i u. i I I ~i~.. `J L!1 , lJ ,~a_.rI. ~:1~~'~I ICI ~:1, 1.! .~L,! ,.'J, . al-~ , Q ! 1 " - I a ~ cc it J F:5('..1: L, iii ~ ~u: J .~S AP N0.430-181-26 ~ ; ~ ~ v C: ij 1 i"L86r,~ Sr:IJTH F.ECi HT[.[. A''r;:ru;L? z Fem. I i : C3~ to ~ n.ara Ts.J~L ,...I ,c. s. u; ~kUJ' ;=1Fi•1C'CF_! f.i ?AODJ.i LF.`•1GTH ~ ~ 1 PI•f9'2J'S1"H 1.Tr 23• ~ ~ I 2 Pt'?"~y''9"t': 3.3.73' i~.i 4 (x,5:'3?'S2"W 35.37. } c~ c'-- ~ k.5`,'S1.»5..E 35.37'; 3C~1-3~'~ fD' I t i ._2'[_ _ ?l8 49' 3-J"E ~ ~ n • . .14~y' ifj' S' " .1 L' ` -t•1C9'20'52"P. 6:7.2.:' N49'7U"°8°n G.57.2.5' y...-- 1 ~DE~RE AVENUE P,0:8,..- EXHIBIT °B° 314TCtt TD ACCOMPANYA LL-/9~L. DE9CRIM70P1 FON AP N0.436.181.26 SHEET 1 OF 7 SHEET RED HILL AVENUE •~''T, y~MyY ~ ~KINCOREDHILL.lLC} coN9u~r~r"a u,:.o>rcn.FAxr..r,:mr.,",.,•!r'x..~ CONTAINING: 8,462 SQUARE FEET Yaec l6 of IC 25A-28 PURCHASE AND SALE AGREEMENT FOR ACQUISITIONOF REAL PROPERTY AND BILATERAL ESCROW INSTRUCTIONS (Commercial) THIS AGREEMENT, entered into this _ day of , 2010, by and between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California (hereinafter referred to as the "City" or "Buyer"), and HPT CW Properties Trust. a Maryland real estate investment trust (hereinafter called "Seller"), regardless of number or gender; WITNESSETH For and in consideration of their promises, covenants and agreements hereinafter set forth, and subject to the terms, conditions and provisions hereinafter set forth, Seller agrees to sell to City, and City agrees to purchase from Seller, all that certain real property (hereinafter referred to as "said real property" or the "Property') described as follows: All that certain real property located in the State of California, County of Orange, City of Santa Ana, described as follows: SEE ATTACHMENT 1, ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as a portion of 2600 Redhill, Santa Ana, CA) (APN 430-221-19) Said purchase and sale of said real property shall be in accordance with and subject to all of the following terms, conditions, promises, covenants, agreements and provisions, to wit: 1. Convevance by Seller. Seller agrees to convey said real property to City, by Grant Deed, at the office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, the date specified by City as herein provided. City shalt execute this Agreement within thirty (30) days after City Council approval and notify Seller promptly once this Agreement has been approved and executed as aforesaid. City shall specify the date on which the conveyance shall occur in a written notice delivered to Seller at least ten (10) business days prior to the actual conveyance date (which date shall occur within ninety (90) days from and after the date on which the City has approved the Agreement). I 2. Title to be Conveyed. (a) Seller agrees that, except as may hereinafter be otherwise expressly provided, said real property shall be conveyed by Seller to City, as aforesaid, free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non-monetary, general or specific, including any and all leasehold interests), liens, clouds or defects in title except those exceptions shown in Paragraph 15 below; provided, however, Seller makes no covenants or warranties as to its title to said real property except as set forth in the Grant Deed delivered pursuant hereto. Page 1 of 24 25A-29 (b) Simultaneously with the conveyance of the real property, Seller shall also convey to City a temporary landscape easement as described in greater detail in Attachment 2, attached hereto and by this reference made a part hereof. 3. Title Insurance. Seller agrees to deliver to City, at City's sole cost and expense in accordance with Section 4 below, concurrently with the conveyance of said real property to City, within the time and at the place hereinabove specified for said conveyance of said real property, a policy of title insurance to be issued by the above mentioned title company, with the City therein named as the insured, in the amount of ONE MILLION SEVENHUNDRED THREE THOUSAND FIVE HUNDRED EIGHTY-FIVE AND NO/100 DOLLARS ($1,703,585) insuring the title of the City to said real property is free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non-monetary, general or specific, and including any and all leasehold interests), liens, clouds or defects in title, other than any matters of record, as shown in the Attachment 4, attached hereto and incorporated herein by this reference made a part hereof. 4. Escrow. City agrees to open an escrow at the office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, (the Escrow Agent) within five (5) days from and after the date on which the City has approved this Agreement. This Agreement constitutes the joint escrow instructions of the City and the Seller and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the escrow. Escrow to close within 30 days of the City's execution of this Agreement. The Escrow Agent hereby is empowered to act under this Agreement, and upon indicating its acceptance of this Section 4 and of the General Provisions described in Attachment 3 attached hereto and incorporated herein by this reference, in writing, delivered to the City and to the Seller within five (5) days after delivery of this Agreement, shall carry out its duties as Escrow Agent hereunder. City agrees to bear and Escrow Agent is hereby authorized to charge to the City the cost of any transfer taxes, recording fees, cost of title insurance, reconveyance fees, document preparation fees, escrow fees and any other closing costs incidental to the conveying of said real property to City. Penalties for prepayment of bona fide obligations secured by any existing deed of trust or mortgage shall be waived pursuant to Civil Code Procedures Section 1265.240. The liability to the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it under Section 4, Section 6, Section 11 and Attachment 3 of the General Provisions of this Agreement. 5. Property Taxes. Such real property taxes, if any, on said real property for the fiscal year within which said real property is conveyed to City as are unpaid at the time of said conveyance shall be cleared and paid in accordance with the provisions of Section 4986 of the Revenue and Taxation ~i Code of the State of California. Seller shall be eligible for a refund under Section 5096.7 of the Revenue and Taxation Code of the State of California for that portion of property taxes on said real property for said fiscal year which have been paid prior to the date the deed conveying said real property to City is recorded which is allocable to that portion of the fiscal year which begins on the date the deed conveying said real property to City is recorded and made uncollectible if unpaid by reason of Section 4986 of the Revenue and Taxation Code of the State of California. All unpaid taxes on said real property for any and all years prior to the fiscal year within which said conveyance is made shall be paid by Seller before conveyance of said real property to City. Page 2 of 24 25A-30 6. Payment of Purchase Price. City agrees to pay to Seller, and Seller agrees to accept from City, as and for the full purchase price for said real property, fixtures & equipment (improvements pertaining to the realty), goodwill (if any), and severance damages, the total sum of ONE MILLION SEVENHUNDRED THREE THOUSAND FIVE HUNDRED EIGHTY-FIVE AND NO/100 DOLLARS ($1,703,585). City agrees to deposit said purchase price in escrow with the Escrow Agent within THIRTY (30) days from and after the date on which the City has approved this Agreement, and the Escrow Agent is hereby authorized to pay the same to Seller upon and after: (a) Recordation of the Deed conveying said real property to City, (b) The title company's irrevocable commitment to issue a title insurance policy to City in accordance with the provisions of Section 3 above. 7. Possession. Seller agrees to deliver to City, on the date the Deed conveying said real property to City is recorded, quiet and peaceful possession of said real property, which shall be made free by Seller of all personal property. 8. Waiver of Potential Violations. City hereby acknowledges that Seller is entering into this Agreement and conveying the Property to City in lieu of requiring the City to pursue condemnation proceedings with respect to the Property and that, following the closing of the transactions contemplated hereby, Seller's remaining property, may not comply with all municipal legal requirements (including without limitation, zoning and parking requirements) applicable thereto. City hereby waives any such non-compliance resulting from the closing of the transactions contemplated hereby, which waiver shall survive at the closing. . 9. Waivers. The waiver by either party of any breach of any covenant or agreement herein contained on the part of the other party shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement nor a waiver of any breach of any other covenants or agreements contained herein. 10. Heirs. Assigns. Successors in Interest. This Agreement, and all the terms, covenants and conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective parties hereto. 11. Time is of the Essence. In all matters and things hereunder to be done and in all payments hereunder to be made, time is and shall be of the essence. 12. Permission to Enter on Premises. Seller hereby grants City, and its authorized agents, permission to enter upon said real property at all reasonable times prior to close of escrow for the purpose of making necessary inspections. City agrees to exercise such access rights in a manner so as not to unreasonably disturb the operation of the real property. City hereby agrees to indemnify, defend and hold harmless Seller from and against any loss, claim or damage incurred or suffered by Seller in connection with the exercise of such inspection rights. 13. Just Compensation. Seller acknowledges and agrees that said purchase price is just compensation at fair market value for said real property and includes payment for fixtures & equipment (improvements pertaining to the realty), goodwill (if any), and severance damages. 14. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O. Box 1988, in the City of Santa Ana 92702, County of Orange, State of California. The mailing address of the Seller is: Page 3 of 24 25A-31 REIT Management and Research Andrew Strain 400 Centre Street Newton, MA 02458 15. Exceptions. City agrees to accept title to said real property subject to the matters described in greater detail in Attachment 4, attached hereto and by this reference made a part hereof. 16. Entire Agreement. It is mutually agreed that the parties hereto have herein set forth the whole of their Agreement. Performance of this Agreement by City shall lay at rest, each, every, and all issue(s) that were raised or could have been raised in connection with the acquisition of said real property by City. 17. Contingency. It is understood and agreed between the parties hereto that the completion of this transaction, and the escrow created hereby, is contingent upon the specific acceptance and approval of the City herein. The execution of these documents and the delivery of same to Escrow Agent constitute said acceptance and approval. 18. Modification and Amendment. This Agreement may not be modified or amended except in writing signed by the Seller and City. 19. Partial Invalidity. Any provision of this Agreement that is unenforceable or invalid or the conclusion of which would adversely affect the validity, legality, or enforcement of this Agreement shall have no effect, but all the remaining provisions of this Agreement shall remain in full force. 20. Captions. Captions and headings in this Agreement, including the title of this Agreement, are for convenience only and are not to be considered in construing this Agreement. 21. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 22. No Reliance By One Partv On The Other. Each party has received independent legal advice from its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question. 23. No Third Partv Beneficiary. This Agreement is intended to benefit only the parties hereto and no other person or entity has or shall acquire any rights hereunder. 24. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the other, execute and deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this Agreement, without cost. 25. Applicability of Agreement To Assignees. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties to this Agreement. 26. Authority to Execute Agreement. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, Page 4 of 24 25A-32 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. 27. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 28. Condition of Proaertv. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY DOCUMENTS TO BE DELIVERED BY SELLER TO CITY AT THE CLOSING, SELLER HAS NOT MADE, AND CITY HAS NOT RELIED ON: ANY INFORMATION, PROMISE, REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE PROPERTY TO BE CONVEYED HEREUNDER (WHETHER MADE BY SELLER, ON SELLER'S BEHALF OR OTHERWISE) INCLUDING, WITHOUT LIMITATION, THE PHYSICAL CONDITION OF THE PROPERTY, TITLE TO OR THE BOUNDARIES OF THE PROPERTY, PEST CONTROL MATTERS, SOIL CONDITIONS, THE PRESENCE, EXISTENCE OR ABSENCE OF HAZARDOUS MATERIALS, TOXIC SUBSTANCES OR OTHER ENVIRONMENTAL MATTERS, COMPLIANCE WITH BUILDING, HEALTH, SAFETY, LAND USE AND ZONING LAWS, REGULATIONS AND ORDERS, STRUCTURAL AND OTHER ENGINEERING CHARACTERISTICS, TRAFFIC PATTERNS, MARKET DATA, ECONOMIC CONDITIONS OR PROJECTIONS, THE ADEQUACY OF THE PROPERTY FOR CITY'S INTENDED USE, AND ANY OTHER INFORMATION PERTAINING TO THE PROPERTY OR THE MARKET AND PHYSICAL ENVIRONMENTS IN WHICH IT IS LOCATED. THIS SECTION 28 SHALL SURVIVE THE CLOSING. 29. Disclosure Notice. City and Seller acknowledge that City hereby waives any requirement that Seller disclose if the Property lies within any natural hazard areas or zones. 30. Environmental Reliance. City hereby acknowledges and agrees that Seller previously conducted certain inquiries and investigations respecting the environmental condition of the Property and in connection therewith obtained a Phase I Environmental Site Assessment, dated as of May 22, 2003, prepared by ATC Associates Inc. (the "Environmental Report"). City agrees further that for purposes of California Health and Safety Code Section 25359.7, Seller has acted reasonably in relying solely upon the Environmental Report and the delivery of such report constitutes written notice to City under such code section. 31. Failure to Close. IF ESCROW FAILS TO CLOSE DUE TO A DEFAULT BY EITHER PARTY UNDER THIS AGREEMENT, THE PARTIES AGREE THAT THE NON-DEFAULTING PARTY'S SOLE AND EXCLUSIVE REMEDIES SHALL BE: (a) TO SEEK AN ACTION FOR SPECIFIC PERFORMANCE OF THE OTHER PARTY'S I'~ OBLIGATIONS HEREUNDER (WHICH ACTION FOR SPECIFIC PERFORMANCE MUST BE FILED AND SERVED UPON SUCH OTHER PARTY WITHIN THIRTY (30) DAYS AFTER THE FAILURE TO CLOSE), OR (b) TO TERMINATE THIS AGREEMENT (IN WHICH CASE, EXCEPT AS OTHERWISE SET FORTH HEREIN AS EXPRESSLY SURVIVING A TERMINATION OF THIS AGREEMENT AND THE PARTIES' DUTIES UNDER THIS SECTION, THE RESPECTIVE RIGHTS, DUTIES AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL FORTHWITH TERMINATE WITHOUT FURTHER LIABILITY) AND RECOVER, AS LIQUIDATED DAMAGES THE AMOUNT OF $25,000. NEITHER PARTY SHALL HAVE NO RIGHT TO RECOVER ANY LOST PROFITS, INCIDENTAL OR CONSEQUENTIAL DAMAGES. Page 5 of 24 25A-33 EXCEPT FOR THE RECOVERY BY A PREVAILING PARTY OF ITS ATTORNEYS' FEES AND COSTS, AS PERMITTED HEREIN, EACH PARTY HEREBY WAIVES AND RELINQUISHES ALL CLAIMS FOR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, CONSEQUENTIAL AND INCIDENTAL DAMAGES ARISING BY REASON OF THE OTHER PARTY'S DEFAULT HEREUNDER. SUCH LIQUIDATED DAMAGE AMOUNTS SHALL BE DEEMED TO CONSTITUTE A REASONABLE ESTIMATE OF THE NON-DEFAULTING PARTY'S DAMAGES UNDER THE PROVISIONS OF SECTION 1671 OF THE CALIFORNIA CIVIL CODE AND SHALL CONSTITUTE SUCH PARTY'S SOLE AND EXCLUSIVE REMEDIES FOR THE OTHER PARTY'S FAILURE TO CLOSE. BY INITIALING BELOW, THE PARTIES ACKNOWLEDGE AND AGREE THAT BASED UPON THE CIRCUMSTANCES NOW EXISTING, KNOWN OR UNKNOWN, IT WOULD BE EXTREMELY DIFFICULT, COSTLY AND IMPRACTICAL TO ESTABLISH DAMAGES FOR EITHER PARTY. ACCORDINGLY, BOTH CITY AND SELLER, BY THEIR RESPECTIVE INITIALS SET FORTH BELOW, DO HEREBY ACKNOWLEDGE AND AGREE THAT TERMS SET FORTH IN THIS SECTION 32 ARE NEGOTIATED AND REASONABLE AND INTENDED TO BE LIQUIDATED DAMAGES. CITY'S INITIALS SELLER'S INITIALS 32. NON-LIABILITY OF TRUSTEES. THE DECLARATION OF TRUST OF SELLER, A COPY OF WHICH IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HPT CW PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER SUCH DECLARATION OF TRUST COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF SELLER SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE SELLER. ALL PERSONS DEALING WITH SELLER, IN ANY WAY SHALL LOOK ONLY TO THE ASSETS OF SELLER FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION. Page 6 of 24 25A-34 The parties have executed this Agreement as of the date written below. SELLER: HPT CW Properties Trust, a Maryland real estate investment trust By Its: CITY/BUYER: CITY OF SANTA ANA BY: David N. Ream City Manager ATTEST: BY: Dated Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher City Attorney BY: Jose Sandoval Chief Assistant City Attorney Page 7 of 24 25A-35 Attachment 1 Pape 1 of 2 I.,EGAI.~ DF.SC~RIP"TION AP NO.43f3-22I-1E3 [3YER ROAD AtiD RE:I) HII.,I:.; AVE1VLk' {E{I'"1' C"4'~' PROPIIRIIGS TRGS'i`) That certain parcel of land ;situated in the City of Santa Antr, County of 4rattfe, State of CaNliarna, facing that portiran rat' P»rcel 3 cat' [-at t..ine Acijustrncnt I.l. ~a7-(123, . rec°ordcd June l 1, 1991T as itts#ttitntcnt No. 199801348421 of Cfficial l~eccards its the t~f~cc: of the C".otntty Recorder of said C7range cownty, described as follows: C(?1b9A1ENC[lYG at the ittterscx:tiran of the centerline of t3ycr Road w-itlt the. ccatterlinc of Rrxl I111 .~14•ettuc; as shown on a map tiled in Book 4t, Pagr: 34 of Parcel ,h+laps in said C.lf'fice o#` thr; (:aunty Re~xyrrler t~f i7ran~;e County; thence along the centerline of Red Bill tlvenue as shown on said parcel Wrap North 40~3#a'36 Last 30.{1t1 feet to the southwesterly line of L.ot l OS of twine's Subdit°ision as shown on said parcel snap; thence continuing along said centerlirtc t7f Red Ili [l Avenue Norttt 40°3?'S3" Fast 45?.00 fr::et eta the southeasterly prolongation of the nrarthcastcrly tine raf said Part;el l raf I..ot line Adjtts#ment No. LL 9?-t)23; thence along said prolongation and said northeasterly line North 40'20'32'° West ?4.55 feet to the TRL9~ POINT OF` BEGINNING; thtrrtce ir:avitti; said at7rtlteastcrly lute 5auth 40°27'49" Fast IC.G(i feet tea a line parallel with and ?4.54 feet ncartltwcsterly o1` said centerline of Reri hill tlve:nue; thettet along said parallel line South 40°3T53" West 3b9.09 feet, thence South 85°38'40'" Wept 38.19 ft;ct to a }inC parallel with attd 13.33 ft:~t northeasterly o'f the centerline of l7yer Rraacl as sttrnvn an said parcel a~t~la; thence along said parallel lint; ~lorth 49"'LU'32" 6'Vest 274.30 feet to the northwesterly lino of said Parcel 1; thence along said northwesterly line South 4(1°39'28" West 19,33 feet to the norheasterly ripltt-of=w•ay of 13ycr Road as dest;~ribed in that certain dtaeumc:nt. recorded Junc 11, I098 as Instrurnryrtt Na. 1908t13fi#3023 of Official Records in said Ufficc: of'the Ccaunty Rer:<arrler of Ot-tttagc County; Chertc:t; along said northeasterly right-of=way and the taortltw•4sterly riF;ltt-of--way of lied hill Avenue as descriltcd in those certain. drtcurrtent_ti rcectrdc~tl June t 1998 as lnstrumcnt Nos. 199843b8424 and 19980368{125, boih raf C}t~ic.ial Records in said C)llrce caf the County Recorder of Uranf;e County, through the folbowing courses;: South 49°2.(1'32" East. 277.€3.2 feet; thence North 8S"39'f)3" East 35.34 fort; ehent:t» North40G3?'53"' East 245.4ti feet to the hcgia.ttinf; raf a tangent carve concave southeasterly and having a radio;; of l 12.25 ft:et; thence along said tatrve northwttsterly :13,43 fetrt through a central angle of 17°(1.3'42'" to a point of reverse corvaturs; with a curer; concatve northwesterly std braving ~ a radius of 02.25 fora, a radial line of said au?ve front said point bears NorLlt 32°! 8'25" West; thence aIr>ttg said curve nttriheastrrrly 27.47 fct;t through a central angle of 1?°{13'42"; Ehenee Page 8 of 24 25A-36 Attachment 1 A,t' No. 430-221-1~ PaKe 2 of 2 Ayer Road and Red Hill avenue {1IPT CW Fropertie~ Tr~~st) E!~hibil "A" tan}~ent fi~om said curve North 4U°3T53" L-a t '1%12.4 -feet tes the nc»~thea:~terly line cif ~aad Parcel 1; thence along said northeasterly line North 4~~°~t)"~2"~'4"~e~t IU,SS .feet #n tt~e TR1iE; Pi)INT t)iF BEGINNING. CONTt~II`31'~C: f?,075 Sciuare Feet. SllIiJCCT TO ail Ccwen~ants, Ri~,tw, I2iShts-o[ Way and >tiaseyr?ents of Ree~ord, >XIIIBi'I' "Ii" attachee# and by tlxis reference made a pt~rt hereKa#: ~~~a ~Aldi3 S~~LF c>``` Kl1ft1" R. Kurt it. 't'roxell, L.S. ?gS4 Date 7'854 ~ ~ ~z~~~~~1er ~~QF CA1.`~ Page 9 of 24 25A-37 Attachment 1 o~Ta T,a~LE ---__-..m - ~hfG/DEh i A RAC IUS -LEN6TN I1~ICATES RECORO DATA PER L . L . A , 97°U2:'i , -------____m....._-..------------------..._ INSTRtNT N0. 1998036802.1, O.R. 1 N49°20'32"W 74.55' 2 17`03'42" 92,25' 27.47' 3 17°03'42" 712.25' 33.43' s r. 4 N$5`39'03"E 35.34' tlY720° t$i. 5 S40° 39' 78"YV 79.33 ° .ICI' 30' I ~ 60 ` . fi P149'20°32"W 10.55' 6 ~ {N49°21'16"W 375:72'} i NE' LY LINE PCI 1 ~ y-- ~ ~ is N4(3` 27' 4~J"E~ ~ ~ a~ca 1s..1 16.66' `Y C~77 tY7 X C7 f T.PA.B. CV 9^- jj W t 74. J' oYr+'y J ~ JJ 70.5 ~ ~z) rJ . ~.~~;~L, ~ __N32"_18',25"w__w.. ~ ~ ~...~T' L1Nr At3JUSTMc~f"i' CIO. LL 9.l-~~~ >-1 = ce 3 r. ,n F- o ~ ~~4+1W M ~ ~ AP430-221-18 ~ ~ (26c1c7 ~~rH RE:D NIl_I_ av~r~) ~ ~ ~ }w U ~13J C,3 J Vx1 ~ 1 Z ~+i PF201:'OSED R/W 1.50' ~ ~ w 13 ' N~'A ~ Sfi5°38~d0"K rn ~ 38.19' 73 60' ~ ~ 43' 30' I exlsT ~/w f'I~R 1MiI. N49°20`32"W 274.30' 549`20 32"E 277.82' - q~~ CITY B1°t7RY. NE'LY RjW i'ER INST. NO. 79980368023, O.R. CITY TUSfiIN C~ DYER ROAD sw' LY LI1~ LoT 105 -CITY I~+i~1~Y. % r _..._._._..._.v._._IRV[4`3E'a 5~.~3. , M.M. 1/88 CITY OF° IRVINE N49°20'32"N' 1321.72. ~ ~ {N49`21' 16"W 1321.68' } N4I1°36':I6"E EXH(B!T ~B~ PO.Ci. I ( Oa 15"E} PER a~Erai roArca~iMnA ~ ~ P .M . F3. 48/34 } BEY 10F 1 SHEEP AP NO.430.221-19 ,N.,.w~. o~ a„ . c , - (DY~E~R~ROAD AND Rry®'1 H~IpLt AVENIiE ~ ~rs~µ:or, Puxwa. \iw . V7f f fWJ1'GRIIE~ /R~ M;A'F CKt"~OA7A 43dib-3047 G Q N SU LTI N Q 4wt7aawa . Ana COA7333A7 . +wnr.~cmn CONTAJNING:8,075SQUAIREFEEI` Fr~uxr 2ooe ~.w, io-ac+oat N: TA iG4p10t1 \CAS70 w~'4V4\£7(Ni~iS\1011-~Y- .DWG AiARR15 i ~ S' 7Il ~ Page 10 of 24 25A-38 When recorded, please mail this instrument and tax statements to: Clerk of the Council City of Santa Ana 20 Civic Center Plaza, M-36 Santa Ana, California 92701 Free recording requested by THE CITY OF SANTA ANA PER GOVERNMENT CODE SECTION 6103 SPACE ABOVE THIS LINE FOR RECORDER'S USE CANCE L AGENCY(IES) APPROVED BY DESCRIPTION DESCRIPTION A.P. R1W MAP PROJECT TAXES PUBLIC WORKS DIRECTOR WRITTEN BY CHECKED-O.K. NUMBER NUMBER NUMBER 430-221-19 Portion of 2600 Redhill Avenue, Santa Ana, California Attachment 2 TEMPORARY LANDSCAPE EASEMENT FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, HPT CW Properties Trust, a Maryland real estate investment trust, Does Hereby Grant to THE CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California, a temporary easement for public right-of-way purposes for the right to plant, maintain, replace, or remove landscaping in, upon, over and across that certain real property in the City of Santa Ana, County of Orange, State of California, located at 2600 Redhill Avenue, Santa Ana„ legally described as follows: SEE ATTACHMENT 2, EXHBIT "A" and "B" -LEGAL, ATTACHED HERETO; AND BY THIS REFERENCE MADE A PART HEREOF: This permission is granted subject to the following conditions being fulfilled by City: (A) Improvements will be constructed in the areas as shown in Attachment 2, Exhibit B, attached hereto and made part hereof. Landscape improvements and sign relocations will be constructed as shown in Attachment 2, Exhibit C. Drainage inlets will be installed in the areas as shown in Attachment 2, Exhibit D and HPT CW Properties Trust will be responsible for maintaining such inlets free of debris and other matter. (B) During construction of driveway approaches, full and complete access to the business will be maintained at all times. In some cases, construction of one-half of a driveway approach at a time may be required- to maintain such access. In this case, the City or the applicable contractor shall provide a temporary asphalt driveway to the business until a permanent concrete driveway is constructed _and shall provide appropriate signage to direct customers and guests to the business. At no time, shall the City or the contractor block access to the business during construction. No fences shall be constructed on or around the property in connection with such construction. (C) City shall indemnify the undersigned against and hold the undersigned harmless against any loss of or damage to any property, or injury or death of any person whomsoever, proximately caused in whole or in part by negligence of City or its contractors of by any act or omission for which the City or its contractors is liable in the exercise of the rights herein granted. (D) All work performed by the City or its contractors hereunder shall be performed in a good and workmanlike manner and so as not to otherwise unreasonably interfere with the business. The City shall not permit any liens to be imposed against the property in connection with any such work. Page 11 of 24 25A-39 (E) Except as shown in the Attachent 2, Exhibit B and C, the work to be performed by the City or its contractors hereunder, the City shall restore the property (as improved hereby) to substantially the same condition as it was in prior to the commencement of such work. Without limiting the foregoing, the City shall cause any existing palm trees which are removed in connection with the exercise of its rights under this easement to be replaced with palm trees of similar value, height and maturity. It is understood that the period of use of said easement shall exist for a period of no more than 12 months and shall commence with the first entry onto owner's property by City's contractor. Upon completion of street widening work, the Easement Area shall be maintained with landscaping in compliance with City ordinances as applicable to this site. This easement shall terminate upon completion of said construction and in any event shall cease and terminate not later than December 31, 2011. THE DECLARATION OF TRUST OF HPT CW PROPERTIES TRUST, A COPY OF WHICH IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HPT CW PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER SUCH DECLARATION OF TRUST COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF HPT CW PROPERTIES TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE HPT CW PROPERTIES TRUST. ALL PERSONS DEALING WITH HPT CW PROPERTIES TRUST, IN ANY WAY SHALL LOOK ONLY TO THE ASSETS OF HPT CW PROPERTIES TRUST FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION. HPT CW Properties Trust, a Maryland Real Estate Investment Trust BY~ Date: .2009 Its: STATE OF CALIFORNIA }ss. COUNTY OF } On 2009, before me, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or 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. Signature Signature of Notary Public place notary seal above Page 12 of 24 25A-40 Attachment 2 E~~IIBIT "A" Page 1 of I LEGAL DESC"RIPTIUN AP NO.430-22:1-I4 FUR "I'EhIPU.RARY LANDSCAPE,. EASEI4IF.N"I' DYER RUAD AND REll IIII.I.~ AVENUE (III'T C~V PROPERTIES 'I'RL`ST) That certain. parcel crf land situated in the City of Santa Ana, County of Orange, State of C<+lifurnife, bung that poztlern cif Par~eT t of f..ot Line Adjustmont L,La 97-t)?3, rccrardcct June l 199Fi as Instrument No, 19980368021 of pfficial Rei;ords in the (7ffire irf the Cirunty Rciaordc;r ofsaid grange county, describe as follows: CO)<~i\IE~IC'ING at the intersce:tian of the centerline of Uycr Raaci with the; centerline of Reef Hill Avenue as shown an a reap filets in Hoak A8, Page 34 of Parcel 1~4aps in said Office of the County Rei:trrder of prarngir County; thence along the centerline of Iced hill Avenue as shown un said. pares;] m.ap North 4()°36'36 East 30.00 feet ter the suuthwesti;rly lino of lot I05 trf Irvine's Subdivisie7t7 as shown un saki parcel map; thence continuing along said centerline of Reel Hill Avenue Kurth 40°37`53" East 457.00 feet to the southeasterly prulongatitrn of the ttortheasteriy line irf said Parcel 1 of Lot Line Adjustment loo. LL 97-U?3; thence along said prolongation and said northeasterly line North 49°2U'32" West 74.55 feet. to the 7'ItIJ_~; PUIN'I' OE BE.GIIV~tING; thcnci; leaving said northcasti,~rly line: South 40°27'4}" p'.a5t lb.6b feet tit a line iraralle;l ~vitil and 74.50 feet northwesterly of said centerline of Ruf Hill r~vexnue; thene,e akrng said lrarallcl line Scruth 4t7°.37`53" West 369,9} feet; thong; South 85"38'40" 4w'est 35.19 fei:t tit a line parallLl with anil 73.33 fcret ncre~theasterly of thi; i;tnterti9tc of Dyer Road as shtrwn on said parcel neap, tliencc along said parallel line Kurth 49°211`32" We~~:t :?74.3tt fee~:t to the northwi~stcrly lint: irf said Parcel l; tlri;nee alirng said northwesterly line Nortlr 40°39'28" East 40.02 feet., thence leaving saki northwesterly litre Soafh 5Cl"t)~}'23" bust il.fil feet to a point on a non-tangent curve concave northeasterfy and having a radius of 40.00 feetx a radial line of` said curve frown said point bears South 7906'42" Cast, the southeasterly terminus of said curve being tangent tit a line parallel with at~d 93.33 feet northeaste;riy irI` the i;entt~rline of said Uycr Road; thence along said cun•e southerly 42.OS feet through a cc~~tral ankle of 60~ i 3"50" ter said paint of tangency; thence along said parallel line South 49~20'3~" East 237.47 feet; thence; I~torth40"37'53"' Fast 377.00 feet; thence South 49°32'1 l'" East 5.00 foot, thence ~torth 40°27'49" Ias# 16.66 feet to the northeasterly line of said Parcel l; thence along said nortlicasterly line South 49"]0'32" East. 15.00 feet to tl~c TRUE POINT OE BECINIVING. COiV I"AINII~IG: 13,$27 Square l'CCt. SUBJECT TU all Covenants, Rights, Rights-of=L~Fay and Easi-me>~nts crf 1 ~~d ~,ANp ~;J~HIBI'T cc8~ attached and by ths's reference made; a part hereof: g ~ y~ KURT R. `r'`U TROXEIl ~ ~ / Kurt R. `l"roxell, f:~.S. 7854 ~.~z_ ate ~ 7'854 rt~~aa€:E~.~~a~~taa~r~~aa~nissa~~tstin~oa~•[.t~t~-es~,~~c - f219i{'~' ~'~~t '9 ~~F GA1.~~~ Page 13 of 24 2 5A-41 Attachment 2 E3ATA TA6LE NO BRNG/DELTA RARIUS LE'~TH l 1 TNa9'2O'32n~______________74~.55' INC7IGATES RECORD I}ATA PER L..L.A. N0. I_L 97-023, 2 S4O°27'49"W 16.66' INSTRLfN7 NO. ;99803&8O2i, O.R. 8S'38'4O"~ 38.19' a N4O'33'28"E 4{7.02.' 5 55O't79'23"E 8.6i' i s eQ°i3'SO° 40.00' az.c7~,' T.PA•B. 7 sag°32 i1"~ 5,~` ~o 30' f sa'~ F3 '~I4O'2i 49"E 16.86' ~ 9 S~9°2J'32"E 15.00' _ ~ {Na9'2i`i6"w 316.72') 8 ~ v 7 ~ er ~ ~ i ~ 14 - f ~m ~ ~ ~ a- ~[.l~r; ~t~JU~7~F:NT NCB, t~,l_, 97--C1~3 ~ ~ ~~~Z ~W~~ ,a~. ~ _ AP 43t1~221-19 ~ ~ ~ ~ °w (2600 SOUTN RED HILL AVENUIe) r,,, ~ ~ ~ .,a~ 1 ..r~ a... ~ f _r ~ rn T. ~ ~ j ~ v? " S79°06'4?"F 2© F~ ~ (RAD} 94..5(7,... ~l / ~ r7 _ i.5O' i3 r~ f _ ~ .~._w._ f 4 ~ Sag°2O'32"E 237.97' ~ " 4~H~„3' X3(7` ---EXIST RAW PER INST. Nag'2O'32"W 27a.3O' ° N0. 19980388024, O.R. ~ ~ ~ CITr BNI~ir. n EXIST. RjW INST. ND. 19980:568023, O,R. CITY 0~ TU'STzFF_ I C~,[3YER ROA© sw'Lr LItvE L0T iO5 CITY f7Rr. IRVFNE'S SUB., ~.f~. ifF38 CITY OF IRVI(eE Nas°2O'32"w ~ 1321.72' (+ias`~o' is"w`~~`° j W _ EXHIBIT SBA Na0°38'36"E 30.00' ~rcH~orrrwra PA.C. I I {Nao`~s'3s"~) f'. ~I. F~. 4s034 a~~maa tore . a~ No~I~f~I~ o°~+F,~r ~ aF ~ sl~Er .1N1./"L,L 1~lV ~`4ANNeN® ¦ 6N • C(INPYry.}CTkOV FOR TEMPORARY L/WDSCME FJ49E~IEWT DYER ROAD AND RED HILL AVENUE • r r u7as µ raw r.•cwar (FIPT {:VII PROPERTIES TRUST) +~-acn C d N 3 U LTI N CQ o°¦.r3smw . ~rx oa,.neax+ • wnrnfi'.c°n CONTA~IING,13,82FSQUAREI`~'I' tt, z ~~-1~®~~ rr.~sAT~~ioawas~.c~t~W.~vr~c~E~awirs~,uN+-cx-+~.o+rc s~+uers 21~17bs 6: r7 y.n Page 14 of 24 25A-42 Attachment 2 EXHIBIT C _ wtcn srt sscr ~r-a3 '"f._. ~ d ~ d poi ~ ( _.:c a ? i , Rd ; s ~ ~ ~ ~ M ~~~~~~„~,~y i ~:t ~,~,s.la~ ~ 4 &1~ x ~ x ce: c rY ~ ~i x f '4'a' ~ ~ ~ f ~-Y f D i ! ~ t.+ r~ ~ s s:~ e~~~~~~r ( . N. ~t ~ ( e ~ ~ _ E ~ ~ ' t' ~ ~ ~ . ~ . ~ . ~ t s_~ ~ ~ ~ c a~ , c ~ s~~ ~ 1 ~~T s.~ ~ y 9+ , t r ~ ~ ~ s ~ i ~ ~ C7 F y~. N ~ ~ i 1 A ~ 'h bj F3 s~^ 33 Page 15 of 24 25A-43 Attachment 2 EXHIBIT C ~ ° p~~~~~~~ppAp A~~ ° ~ ~ j'~ ~ I ~~~~~,~~a~ ~ ~ t ~R~4,4" ~Z- ~ ~ ~~~R~ ~11d ~ r ~ ~ j~ i~ ~ ~ ~ r tl 0 ytf tTl ~ ~ i. s y, r„ r 1, ~ A 6 8 N X E ~ ~t. ~ ~ I' ti..;_.. ~ E ' i~ ,G~ ` Y - 91p. 1 I _ 5,9 P ~ ~ ~ 7 + r'~ II _ pF ~ T ~ $ I. ~ ~ V yY ~ i e ~ ~ ~ 7 ~ r ~ ~a~ ~ ~ ~ ~ ! o m~ 3 E ~ ~ ~ w m ~ ~ a t _ ~ Page 16 of 24 2 5A-44 Attachment 2 EXHIBIT D t ~ E' 4 33 ~ ~ 4r. " ~ ~ , ~ i i ? ~ . ~ (s ~ i, a f i~ [ i R3 ' . 1 s' ( F is R~~ F 'S~ ~-r7: ~ tS z,~ „ ~ m ~ ~ t: ~ ~ ~ - ~ i ~ _ - ;s Page 17 of 24 25A-45 Attachment 2 EXHIBIT D f~ , 3 E _ } 3"" d - - x f . ~ € ~I .f,. _ ! is -i' P' > _ t e. t A,~~ _ . _ o ~x ti p` i Page 18 of 24 25A-46 Attachment 3 GENERAL ESCROW PROVISIONS All disbursements shall be made by wire transfer of immediately available funds. All funds received in this escrow shall be deposited in one or more of your general escrow accounts with any bank doing business in the State of California and may be transferred to any other general escrow account or accounts. The expression "close of escrow" means the date on which instruments referred to herein are filed for record. All adjustments are to be made on the basis of a 30-day month. Recordation of any instruments delivered through this escrow, if necessary or proper in the issuance of a policy of title insurance called for, is hereby authorized. There shall be no prorations of any existing insurance policies in this escrow. You are to furnish a copy of these instructions, amendments thereto, closing statements and/or any other documents deposited in this escrow to the lender or lenders, the real estate broker or brokers and/or the attorney or attorneys involved in this transaction upon request of such lenders, brokers or attorneys. Should you before or after close of escrow receive or become aware of any conflicting demands or claims with respect to this escrow or the rights of any of the parties hereto, or any money or property deposited herein affected hereby, you shall have the right to discontinue any or all further acts on your part until such conflict is resolved to your satisfaction, and you shall have the further right to commence or defend any action or proceedings for the determination of such conflict. The parties hereto jointly and severally agree to pay all costs, damages, judgments and expenses, including reasonable attorne 's fees, suffered or incurred Y by you in connection with, or arising out of this escrow, including, but without limiting the generality of the foregoing, a suit in interpleader brought by you. In the event you file a suit in interpleader, you shall ipso facto be fully released and discharged from all obligations imposed upon you in this escrow. If for any reason funds are retained or remain in escrow, you are to deduct therefrom a reasonable monthly charge as custodian thereof of not less than $10.00 per month. Time is declared to be the essence of these instructions. If you are unable to comply within the time specified herein and such additional time as is required to make an examination of the official records, you will return all documents, money or property to the party entitled thereto upon satisfactory written demand and authorization. Any amendment of and/or supplement to ~ any instructions must be in writing. The seller agrees to sell and the buyer agrees to buy the property herein described upon the terms hereof. These escrow instructions, and amendments hereto, may be executed in one or more counterparts, each of which independently shall have the same effect as if it were the original, and all of which taken together shall constitute one and the same instruction. Page 19 of 24 25A-47 Attachment 4 CLTA PreihytttNery Rtpgtt t't!i'tN Order Number. OSA-3425620 {22) {Rev. 1if06) Page Number: 1 G~ '.i. r~'^=.. First American Title Company sza cWe~c stroec Say t3ernardino, t„A 92401 Order Number: OSA-3425620 {22) Title (~fcer: Matt Hoczks Phor~: (909)380-8738 Fax Na.: {866)566-3980 E-Matt; tnhooks~Jltirstam.com Esaraw OH9cer: Robert senavente Ptxxte: {714)250-4721 ' Fax No,: (714)913-6358 E-Mail: rbenavente~ofirstarttteun ' Buyer: City flf Santa Ana Owner: HPT CW Properties Trust. Property: 2500 South Red Htll Avenue Santa Ana, CA PRELIMINARY REPORT In respsnsr to the elrove. ~ appdntbrs for a PdicY ar t3Ue arsurante, ttMS tomyanY hereby re'PaY., ttsat d iS prpparcd m buee, ar cause W br; Ksued, as of ma lobe heroofr a PdiCD' or ibhcias MTdk 7rtAUranca +ar.~r&ar9 the ialW and the agate or urCerest tfiaein her®ndtes sat irxSh, IrmrMg against lass whkfi maybe ws/ained hY reaasn +N anY defeC, lien or encurnbranca not shown a rattvrad to as an Exception beknr ar rat excluded frtm coverage pursuarH tp tits Drinted Condniorrs aaxf Stipluialdons of ski Panty famrs. The pratted Evteptwns and ExcW4tm tram the gaga .>,rd timsatiau tx+ Covered Rk+s ~ said PdkY ar poACres ere sat fath w fa3riWt A aftadred. 7Ae pdky ~ be bored muy en A#rativn z%a~aa. KiSA'r drfr amount oflrxoarant>'rs kss Ahe+r the! art forth 7n ffiie arblbA~+n +t&usc; d9'Xb mXtsr5SAa76a tlrGXrah'd at Mc r#d~ r7fadlteer fhr COmW+nY ArlYie l»surod a5 A5r e.« reftiradYG?Mk hsutks. i.pn9ptlars on Covered Risks aptri~ris to dra C1tA and AL4A ttatreowner's POIIaCS or Tltk Insurance which estadl~ a C)educt>INa ArnwerN arM a Mavirnmr L3aMar iLreu of UabiwtY rot osttan coverages ere aka sM t in Exhtf3t A. Copies at the potty roams Shah be read. Tlry era avaY~sks ham ore attics whkh ksued thh eepart. leeae read the exoaytk+ns dawn Or refNred tb below and the exceptbns and exdwiars set }mtlr ht Exh~it A M tlf~ ropsrt preNily. Tha exceptlaars and attdusiona an meets Os flrevide y~ with natke ~ msttars whhdk are rat anekrthaterms Mt4Ma thM buwrance Pd~Y and fhadd be ptefuliY cortdfiarad li I it is hnportant to nMe that this pralhninary report is net r written represwrriUkn as to the mndit3on or dale and may not ~ alt hens, derails, and encumbrances aKecUnp title to the tend. TTas repel tarxt any syipkments or amardtrent9 trerato) ~ issued safety fa the ~rPOSa at facNtlt'atirtp the i~aanca of a policy or tkie inSVratiCa aMf na eabiAtY LS assumed liertby. !1 ft k desired tltat NabtAtY be assrxned prier to the ksuante Or a pdity Or tKle in5nranta. a hinder or Convnibnarri sfinuid ba rettuCSCad. RtstAmerrtan Title Page 20 of 24 25A-48 Attachment 4 Order Number: O5A-3925620 {22) Page number: 2 Dated as of November 25, 2009 at 7:30 A.M. The form of Policy of tltie insurance contemplated by this report is: ALTA Standard Owner's Policy 2006 {WRE 6.17-06) A specific request should be made if another form or additional coverage is desired. Tide to said estate or interest at the date hereof is vested in: NFf C4V PROPERTIES TRUST, A MARYLAND REAL ESTATE INVESTMENT TRUST The estate or interest in the land hereinafter described or referred to covered by this Report ls: A fee as to Parcel{s) A, an easement as to Parcel{s} B. 1'he Land referred bo herein is described as follows: {see attad~ed Legal Destriptlon} At the date hereof exceptions to arverage in addition to the printed Exceptions and. Exdusians in said policy form would be as follows: 1, General and special taxes and assessments for the f>scal year 2009-2010. First Installment: $57,689.48, PAID Penalty: $0.00 Second Installment: $57,689.48, PAYABLE Penalty: $0.00 Tax Rate Area: 11-019 A. P. No.: 430-221-19 2. The lip of suppiernentai taxes, g any, assessed pursuant to Chapter 3.5 wmmencing with Section 75 of ~ Califania Revenue and Taxation Dade. 3. Water rights, claims or title to water, whether or not shown by the public records. 4. An easement for road and inUdentai purposes in the document recorded December 27, 1938 in Book 976, Page 183 of Official Records. 5. An easement for pipe lines and inckiental purposes in the document recorded becember 11, 1958 in Book 4513, Page 75 of OffKtal Reccx'ds. FrrstAmeriran 71de Page 21 of 24 25A-49 Attachment 4 f}rder Number: OSA-3425620 (22} Page Number. 3 6, The right to install, maintain and u~, over, uixfer, across and along the easement last above. shown, roads and streets, with right to dedicate for pubik: road purposes and pole Tines, pipe Hues, and other fatalities far oil, gas, water, etectrlcity and other purposes not inconsistent with use of said easement by said Gas Company, as reserved by the Irvine Company in said easement last above shown. 7, An easement for Cortdults and inckdentai purposes In the document retarded in Book 6685, Page 921 of Official Records. 8. An easement for avigation and incidental purposes, recorded March 17, 1964 in Book 6965, Page 721 of Official Records. in Favor of: County of Orange Affects: As described therein 9. Crn+enan~, Corlditivns, restrictions and easements in the document reCOrt}ed May 2i, 19b5 in BooK 7529, Page 600 of Official Records, which provide that a violation thereof shall not defeat or render invalid the lien of any first mortgage or deed of frost made in good faith and for value, tart deleting any covenant, condltusn or restriction indicating a preference, limitation w discdmina#ion based on race, color, religion, sex, handicap, famtHal status, national origin, sexual orientation, marital status, ancestry, source of income yr disability, tv the extent sutfi wvenartts, condltlons or re~ricfions violate Title 42, Section 3604(c), of the United States Codes or applicable state law. Lawful restrictions under state arxt federal law on the age of occupants in senior housing or housing for older persons shall not be mnstrtred as restrictions based on familial stata.~. Document(s) declaring modifications thereof recorded May 30, 1989 as lnstrumerit No. 89- 285371; March 2, 1990 as Instrument Nrs. 90-112441; October 5, "1990 as Instrument Na. 90- 535152; January 10, 1992 as Instrument Nn. 91-14595; 3anuary 10, 1991 as Instrument No. 91- 14596 and September 26, 2002 as Instrument No. 02-8271$4, au of Official Records. Cvnserrt urx~r Declaration of Restrlctioru - irvrie Industrfal Complex; was. recorded March B, 2001 2R5 Instrument Na. 01-133730, Official Records. Reference is made to said document for full particulars.. 10. An easement for street and incidental purposes In the document recorder! May 9, 1966 in Book 7925, Page 979 of Official Records. 11. The right to construct, install, replace, ma~tain, operate and u~, pole !Ines, pipe lines and other faculties for the transmission of oil, water, gas, sewage, eieckriCity and tel~fione, as reserved fn the deed last mentioned above. 12. An ~semenk for street, highway and incdentai purposes in the doament recorded in Book 8276, Page B96 of Official Records. 13. 'The right tv construct, maintain and operate existing irrigation pipe lines, as reserved by Irvine industrial Complex, a Callfiomia corparation, in the deed last mentioned above, 14. An easement for road, public utilities and incidental purposes in the document recorded December 11, 1972 in Book 10464, Page 953 of Official Records. First Amevican TTiye Page 22 of 24 25A-50 Attachment 4 Order Number: OSA-3425620 {22} Page Number: 4 15. An easement for an underground storm drain ro be used far flood control and water conservation and Inddental purposes in the document recorded in Book 11335, Page 1259 of Official Records. 16. Covenants, conditions, restrictions and easements in Ute document recorded October 13, 3978 in Book 12861, Page 184 of official Records, which provide that a violatlon thereof shall rwt defeat or render invalid the lien of any first mortgage or deed of trust made in good faith and for value, but deleting any covenant, totKiition or restriction indicatlng a preference, limitation or discrimination tossed on race, color, religion, sex, handicap, familial status, national origin, sexual orlentagon, marital States, ancestry, source of intdme Ctt disability, DD the extent Such COYenant5, tvrxiitions or restrictions violate Title 42, section 3604{c), of the United stag Codes or applicable State law. lawful restrictions under state and federal law on the age of occupants in senior housing or housing for older persons shall not be construed as restrictbn5 based on famiNal status. 17, The Terms, Provisions and Easement{s} ccxrtained in the document entitled Grant of Easement retcxded June 11, 1998 as instrument Na. 98-368022 of official Records. 18. An easement for street, highway, utility and incidental purposes, recorded June li, 1996 as instrument No. 38-368023 of Officio{ Records. Sn Favor of: The City of Santa Ana Affects: As described therein 19. An easement for public right of way and incidental purposes in the document recorded June 11, 1438 as 1n~rvment No. 98-368024 of OfficJal Records. 20. An easemenk for public right of way and incidental purposes in the document retarded June 1 i, 1998 as iristrurnent No. 98.368025 of Offldai Records. 21. An easement shown or dedigted on the map flied or recorded December 15, 1972 as Book 48, Page 34 of Parcel Maps For: sewer and incdental purposes. 22. An easement shown ~ dedicated an the map filed ar recorded December 15, 1972 as Book 48, Page 34 of Parcel Maps For: Proposed tempcxary storm drain construction and proposed storm drain arxf incidental purposes. 23. The effect of a map purporting to show the land and other property, filed in Book 189 Page 26 of Record of Surveys. 29, Rights of parties in possession. Prior to the issuance of any policy of title irtsuranoe, the Company will rrquire: 25. With respell to the trust referred to in the vesting: d. A cert3f'rcaUon pursuant to Section 18100.5 of the California Probate Code fn a form satisfactory to the Company. b. Copies of those excerpts from the original trust documents and amendments thereto wh~h FustArnerrcan T31fe Page 23 of 24 25A-51 Attachment 4 Order Numt~: o5A-3425620 t22) Page Number: 5 designate the trustee and Confer upa~ the Mastc;e the paver to act in the perking transaction. c. ocher requirements which the Company may impose fr~ianring its review of the material required herein and Cher inforinatian which the Company may require. Fr7s7Amerlran TIUe Page 24 of 24 25A-52 REQUEST FOR : COUNCIL ACTION ~ ~ CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED AMENDMENT TO AGREEMENT WITH ASCOM ? As Recommended FOR ENGINEERING SERVICES FOR FIRST ? As Amended STREET BRIDGE WIDENING ( PROJECT ? Ordinance on 1 S` Reading ? Ordinance on 2"d Reading 061723 ) ? Implementing Resolution ? Set Public Hearing For CONTINUED TO z~+..-c: `:c>"~ FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and the Clerk of the Council to execute the attached amendment to the agreement with AECOM, subject to non- substantive changes approved by the City Manager and City Attorney, to provide engineering services for widening of First Street Bridge over the Santa Ana River in the amount not to exceed $121,200 for a total contract amount of $1,160,000. DISCUSSION On November 20, 2006, the City Council awarded a contract to AECOM for design services related to the First Street Bridge Widening Project. The project entails replacing the existing four lane bridge over the Santa Ana River with a wider six lane bridge. The scope of work included preparation of the California Environmental Quality Act and National Environmental Policy Act (NEPA) determinations for the proposed project. In 2007, the Federal Highway Administration delegated oversight of NEPA review and approval to Caltrans for projects funded by the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users. Caltrans in turn instituted more stringent NEPA requirements due to their new oversight. A Preliminary Environmental Study for this project was approved on December 7, 2009. This study dictates which technical studies will be required for NEPA approval by Caltrans. Based on these more stringent requirements not included in the original contract, additional environmental services are required in the amount of $121,200. 25A-53 Amendment to Agreement with AECOM January 4, 2010 Page 2 ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Funds are available in the Measure M Street Construction Fund (accounting unit 03217660-66220, project no. 061723) and the Select Street Construction Fund (accounting unit 05917660-66220, project no. 061723). APPROVED AS TO FUNDS AND ACCOUNTS: ~'~M~,~ra~~ Raul Godinez Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency 25A-54 ~ FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT is entered into on January 4, 2010, by ' and between AECOM/DMJM, a California corporation ("Consultant") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). j I RECITALS: A. The City and DMJM entered into that certain Agreement A-2006-304, dated November 20, III',, 2006, (hereinafter "said Agreement") by which Consultant has provided structural design and ~ project management services for the First Street Bridge Widening Project ("the Project). ~ B. DMJM was by AECOM by agreement (instrument...) dated.... C. Due to funding issues, the Project was interrupted and is now being re-instated by the Parties. The re-initiation of the Project will require additional environmental studies to comply with requirements imposed on Caltrans Local Assistance projects. D. In accordance with the terms and conditions of said Agreement, the parties wish to amend the Scope of services to include additional environmental studies and project management tasks, and to increase compensation to pay for the additional studies and management tasks. 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 1, SCOPE OF SERVICES, shall be amended to include reworking the following environmental studies proposed to be completed by subconsultant LSA, as set forth in Exhibit A-1, attached hereto and incorporated by this reference: • Traffic (update) • Air Quality (update) • Noise Study (update) o NSR (update) o NADR (New Study) • Cultural o ASR (Update) o HPSR (Update) o Native American (Update) • NES (MI)) (Update) • Haz. Mat. ISA (Update) • JD (Update) Additionally, Consultant will provide management and administrative services required to complete the Preliminary Environmental Study incorporating the updated studies, and provide additional technical studies as required by the Project. 2. Section 2, COMPENSATION, shall be amended to increase compensation by $121,200, to pay for the additional services and previously approved change notices, at the rates and 25A-55 charges set forth in Exhibit B-1. The total not to exceed contract amount shall be $1,160,000.00, which includes a five percent (5%) contingency. 3. 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 First Amendment to Agreement on the date and year first written above. Vii, ~I ATTEST: CITY OF SANTA ANA ~ MARIA D. HUIZAR DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: it AECOM JOSEPH W.FLETCHER City Attorney 'I i By: Laura Sheedy (NAME) Assistant City Attorney (Title) 25A-56 EXHIBIT A-1 October 14, 2009 LSA Associates Inc. (LSA) has been preparing environmental documentation for the First Street Bridge Widening Project as a subcontractor to DMJM/AECOM since January 2007. The project was put on hold in February 2008 due to funding issues. The City of Santa Ana (City) has now requested that the AECOM team re-initiate work on the project. The 18 month delay has i resulted in additional and in some cases substantial new requirements for Local Assistance projects as a result of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), National Environmental Policy Act (NEPA) delegation to Caltrans. Additional work will be required for processing the technical studies for the First Street Bridge Widening Project to meet the new requirements of Section 6004 (d) (3) for Categorical Exclusions under SAFETEALU. Therefore, LSA is submitting this contract change order request. This change order request is based on several discussions with DMJM/AECOM over the past year and more recent discussions in the past 2 weeks with AECOM, the City, and Caltrans. The suite of technical studies that LSA is currently contracted to prepare include: traffic, water quality, air quality, noise, Historic Property Survey Report (HPSR), Archeological Survey Report (ASR), the Natural Environment Study Minimal Impacts (NESMI), Jurisdictional Delineation (JD), Section 4(f), and Initial Site Assessment (ISA). BACKGROUND LSA had an original budget of $144,430 for the completion of the scope of work: preparation of the Preliminary Environmental Study (PES) Form, technical studies (listed above), environmental document - a Categorical Exclusion (CE)/Mitigated Negative Declaration (MND), and Resource Agencies permitting and coordination. Additional budget of $7,500 was authorized in March 2009 for completion of an updated PES Form, for a total authorized budget of 151,930. ADDITIONAL WORK The following describes work that LSA will need to perform in order to revise and update technical studies due to the inactivity of the project, updated requirements of Caltrans, and additional studies that are currently required by Caltrans Local Assistance and that were not included in the original scope. As noted above, the factors that have changed the scope of work and budget are new Caltrans Local Assistance Requirements as a result of SAFTEA-LU, and Caltrans requirements for new technical reports such as Noise Abatement Decision Report (NADR) and Historic Resources Evaluation Report (HRER) that were recently identified in the PES form and that were not included in the original scope of work. 25A-57 Task 2.1 Traffic/Circulation Use of 2007 Traffic/Circulation Study The traffic report was completed in October 2007. The report was submitted for review to the City however, was not submitted to Caltrans. LSA proposes to submit the 2007 traffic report to Caltrans to see if it is accepted. If it is accepted by Caltrans, then the only traffic work required would be to process the traffic numbers for future 2035 conditions for the air quality and noise reports. Update or New Traffic Study (Optional Tasks) There are two approaches for a new traffic study, in the event Caltrans requires one. These I', include: 1. Extrapolating 2035 numbers from the existing 2007 report traffic data and updating the report with the new numbers and new traffic counts; or 2. Wholesale update including obtaining new OCTAM model numbers from the Orange County Transportation Authority (OCTA), taking new counts. Approach No. 1 can be accomplished without a tremendous amount of effort or impact on the schedule and has modest budget implications. Approach No. 2 has both major budget and schedule implications and would include basically a brand new traffic study, new counts, new model data, processing of the model data, new report preparation and review by both the City and possibly Caltrans. Task 2.2 C Air Quality (i7pdate) The draft air quality analysis was completed in October 2007. However, the air quality report was not submitted to Caltrans because the project went on hold in February 2008. To reflect most recent changes to Caltrans Standard Environmental Reference (SER) guidelines with respect to air quality and global climate change, new and additional analysis will be required. LSA will prepare an updated Air Quality Analysis for the First Street Bridge project in accordance with the Caltrans Transportation Project Level Carbon Monoxide (CO) Protocol, the EPA's fugitive dust conformity rule, and the South Coast Air Quality Management District (SCAQMD) CEQA Handbook air quality guidelines. LSA will conduct the screening analyses specified in the CO protocol and, if required, conduct CALINE4 modeling for CO hot spots for up to 20 receptor locations for the Existing, Future No Build, and the Build Alternatives. LSA will evaluate the proposed project's impacts to long-term particulate matter concentrations (PMz.s and PM~o) and mobile source air toxics (MSAT) using the Transportation Conformity Guidance for Qualitative Hot-spot Analysis in PMa.s and PMro Nonattainment and Maintenance Areas (EPA, March 2006) and the Interim Guidelines on Air Toxic Analysis in NEPA Documents (FHWA, February 2006). In addition, the proposed project's impact on global warming and climate change will be discussed. LSA will submit the particulate matter hot-spot analysis to the SCAG Transportation Conformity Working Group for review and approval. In addition to the revised air quality and particulate matter analyses, LSA will prepare the "Conformity Analysis Documentation for Project-Level Conformity Determinations in Metropolitan Nonattainment/Maintenance Areas" that is now required under NEPA delegation. 25A-58 Task 2.3 Noise Analysis (Update) The draft noise analysis was completed in November 2007 however was not submitted to Caltrans for review because the project was put on hold. The current noise report will require minor revision due to changes in the requirements for noise reports and updated traffic. However, if a new traffic report is required then the noise analysis will require wholesale revision using the new traffic numbers for new modeling. In addition, the noise analysis will be revised to reflect the latest requirements for the noise impacts assessment posted on the SER. LSA will revise the Noise Impact Analysis that assesses the project's potential effects on existing and future noise conditions based on the new alignment. LSA will review applicable noise and land use compatibility criteria for the project area. The noise study revisions include the following tasks: 1) the Noise Analysis (noise modeling) will be updated to reflect updated traffic data; 2) the report will need to follow the current Caltrans Protocol and the new report format provided on the SER website; and 3) the reasonable allowance per benefited residence has been reduced from $36,000 to $31,000 and the report will reflect this change. Update Noise Study to Reflect Revised Traffic Data (Optional task) If Caltrans requires new traffic information under either optional Approach No. 1 or No. 2 described above under the Traffic Study, then this will require additional revisions to the noise modeling that are not included in the above scope of services for the update of the noise analysis. New Task 2.3.1: Noise Abatement Decision Report (New study) A Noise Abatement Decision Report (NADR) will be required to be consistent with the most recent Caltrans Traffic Noise Analysis Protocol, which was not included in the original scope of work. LSA will work with DMJM/AECOM to obtain the engineer's cost estimate for the evaluated abatement, the engineer's evaluation of nonacoustical feasibility issues, and necessary technical reports to assess secondary effects of abatement. The project engineer (DMJM/AECOM) will need to sign the NADR. If feasible sound barriers are identified in the Noise Study Report (NSR), LSA will prepare a NADR. The report will summarize the preliminary reasonableness determination from the noise study report, present the engineer's cost estimate for the evaluated abatement, evaluation of non- acoustical factors related to feasibility, preliminary noise abatement decision, and secondary effects of abatement (impacts on cultural resources, scenic views, hazardous materials, and biology). LSA will prepare the NADR consistent with the Caltrans report guidelines with the best information available. Task 2.4 Cultural Studies (Updates) The draft Archeological Survey Report (ASR) and Historical Properties Survey Report (HPSR) were completed in September and October 2007, respectively. However, these reports were not submitted to Caltrans because the project was put on hold. The ASR and HPSR reports will require significant revisions due to the new ASR form requirements, and updates to the HPSR. The reports will require updated records search and literature search, minor updates to the APE map and additional Native American consultation. Furthermore, the Historical Resources Evaluation Report (HRER) was determined to be required by Caltrans in the PES form. The scope of work for the HRER is described below: 25A-59 New Task 2.4.1 HRER (Optional New Study) It is unlikely that a Historic Resources Evaluation Report (HRER) is necessary for the project because there does not appear to be the need to evaluate properties adjacent to the APE. However, it is included here in the event that Caltrans requires one. The HRER will document identification, recordation, and evaluation efforts for the built environment and historical archaeological resources. The preparers) of the HRER will meet the Architectural Historian Qualifications Standards in Attachment 1 of the 2004 Programmatic Agreement (PA). The HRER will follow the format in Exhibit 6.2 of Caltrans Environmental Handbook Volume 2. The HRER will contain documentation of the research and field methods, a historical overview, the description and significance of identified historic archaeological and built environment cultural resources (if applicable), and findings and conclusions. The HRER will also contain a bibliography, preparers' qualifications, maps, Department of Parks and Recreation (DPR) 523 forms for properties not exempted under Attachment 4 of the PA, and other appropriate documents such as maps, figures, previously prepared resource records, and historical archaeological site records. Determinations of Eligibility will be made for properties within the area of potential effect (APE). It is anticipated that the project will not have any effects on historical resources and that a Finding of Effect will not be required. Task 2.5 Natural Environment Study Minimal Impacts (NESMI) (update) The draft NESMI was completed in November 2007; however, it was not submitted to Caltrans for review because the project was placed on hold. The current NESMI will require update to the report, an additional follow-up site visit, including a daytime visit to inspect the bridge for the bat presence, and a new CNDDB and CNPS literature search to update the occurrence potential for special status species. Task 2.7 Initial Site Assessment (ISA) (update) The draft ISA was completed in September 2007 and was submitted to Caltrans for the first round of review. The comments to the report were received however they were not incorporated to the report, because the project went on hold. The ISA will be revised to provide answers to Caltrans comments, incorporate new records search results and Caltrans comments to provide Asbestos Containing Materials (ACM) survey results findings. These new records search results and ACM survey finding will be reported in the updated ISA. In addition, based on LSA's experience that these studies are typically required by Caltrans, we recommend that the ADL surveys for aerially deposited lead and lead-based paint be conducted by Kleinfelder under their existing contract with AECOM. The ISA report will be revised per findings of these survey results. Task 4.1 Jurisdictional Delineation (update) The jurisdictional delineation report will require revisions regarding changes to U.S Army Corps of Engineers (Corps) guidelines as a result of recent Rapanos Supreme Court decision. The report will be updated to reflect these Corps changes. The Santa Ana River is also subject to review by California Department of Fish and Game (CDFG) under Section 1602 of the Fish and Game Code. 25A-60 EXHIBIT B-I AECOM CONTRACT STATUS Original Requested Revised Budget Budget Change Orders w/ Requests Design $874,657 $0 $874,657 Construction Support $47,192 $0 $47,192 Optional Tasks Retaining Walls (South Quadrant) $10,589 $0 $10,589 Raised Medians & Landscaping $12,301 $0 $12,301 Environmental EA/FONSI/MND $19,080 $0 $0 ~ . Additional Potholes $0 $4,140 $4,140 • . Asbestos Survey $0 $5,400 $5,400 • PES Preparation (Modified Form) $0 $10,370 $10,370 • WQMP Preparation $0 $19,180 $19,180 • . Rework Technical Studies DMJM Manage. & Admin. $0 $11,916 $11,916 Meetings $0 $6,448 $6,448 PES Prep. $0 $1,407 $1,407 Technical Studies $0 $9,751 $9,751 LSA Traffic (Update) $0 $500 $500 Air Quality (Update) $0 $7,200 $7,200 Noise Study (Update) NSR (Update) $0 $10,490 $10,490 NADR (New Study) $0 $16,510 $16,510 Cultural ASR (Update) $0 $5,140 $5,140 HPSR (Update) $0 $5,300 $5,300 Native American (Update) $0 $2,700 $2,700 NES(MI) (Update) $0 $4,180 $4,180 Haz. Mat. ISA (Update) $0 $3,330 $3,330 JD (Update) $0 $3,620 $3,620 Optional Tasks HRER (Update) $0 $7,980 $0 25A-61 Traffic(Update-Approachl) $0 $10,190 $10,690 Traffic(Update-Approachl) $0 $7,550 $7,550 NSR (Update) $0 $14,660 $14,660 • i~~ 25A-62 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED AMENDMENT TO AGREEMENT WITH AECOM ? As Recommended FOR ENGINEERING SERVICES FOR FIRST ? As Amended STREET BRIDGE WIDENING ( PROJECT ? Ordinance on 15` Reading ? Ordinance on 2"d Reading 061723 ) ? Implementing Resolution ? Set Public Hearing For CONTINUED TO c.-c, FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and the Clerk of the Council to execute the attached amendment to the agreement with AECOM, subject to non- substantive changes approved by the City Manager and City Attorney, to provide engineering services for widening of First Street Bridge over the Santa Ana River in the amount not to exceed $121,200 for a total contract amount of $1,160,000. DISCUSSION On November 20, 2006, the City Council awarded a contract to AECOM for design services related to the First Street Bridge Widening Project. The project entails replacing the existing four lane bridge over the Santa Ana River with a wider six lane bridge. The scope of work included preparation of the California Environmental Quality Act and National Environmental Policy Act (NEPA) determinations for the proposed project. In 2007, the Federal Highway Administration delegated oversight of NEPA review and approval to Caltrans for projects funded by the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users. Caltrans in turn instituted more stringent NEPA requirements due to their new oversight. A Preliminary Environmental Study for this project was approved on December 7, 2009. This study dictates which technical studies will be required for NEPA approval by Caltrans. Based on these more stringent requirements not included in the original contract, additional environmental services are required in the amount of $121,200. 25B-1 Amendment to Agreement with AECOM January 4, 2010 Page 2 ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Funds are available in the Measure M Street Construction Fund (accounting unit 03217660-66220, project no. 061723) and the Select Street Construction Fund (accounting unit 05917660-66220, project no. 061723). APPROVED AS TO FUNDS AND ACCOUNTS: T ~l~l~l~ ~ A La~~~. Raul Godinez Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency 25B-2 FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT is entered into on January 4, 2010, by and between AECOM/DMJM, a California corporation ("Consultant") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS: A. The City and DMJM entered into that certain Agreement A-2006-304, dated November 20, 2006, (hereinafter "said Agreement") by which Consultant has provided structural design and project management services for the First Street Bridge Widening Project ("the Project). B. DMJM was by AECOM by agreement (instrument...) dated.... C. Due to funding issues, the Project was interrupted and is now being re-instated by the Parties. The re-initiation of the Project will require additional environmental studies to comply with requirements imposed on Caltrans Local Assistance projects. D. In accordance with the terms and conditions of said Agreement, the parties wish to amend the Scope of services to include additional environmental studies and project management tasks, and to increase compensation to pay for the additional studies and management tasks. 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 1, SCOPE OF SERVICES, shall be amended to include reworking the following environmental studies proposed to be completed by subconsultant LSA, as set forth in Exhibit A-1, attached hereto and incorporated by this reference: • Traffic (update) • Air Quality (update) • Noise Study (update) o NSR (update) o NADR (New Study) • Cultural o ASR (Update) o HPSR (Update) o Native American (Update) • NES (MI)) (Update) • Haz. Mat. ISA (Update) • JD (Update) Additionally, Consultant will provide management and administrative services required to complete the Preliminary Environmental Study incorporating the updated studies, and provide additional technical studies as required by the Project. 2. Section 2, COMPENSATION, shall be amended to increase compensation by $121,200, to pay for the additional services and previously approved change notices, at the rates and 25B-3 charges set forth in Exhibit B-1. The total not to exceed contract amount shall be $1,160,000.00, which includes a five percent (5%) contingency. 3. 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 First Amendment to Agreement on the date and year first written above. ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: AECOM JOSEPH W.FLETCHER City Attorney By: Laura Sheedy (NAME) Assistant City Attorney (Title) 25B-4 EXHIBIT A-1 October 14, 2009 LSA Associates Inc. (LSA) has been preparing environmental documentation for the First Street Bridge Widening Project as a subcontractor to DMJM/AECOM since January 2007. The project was put on hold in February 2008 due to funding issues. The City of Santa Ana (City) has now requested that the AECOM team re-initiate work on the project. The 18 month delay has resulted in additional and in some cases substantial new requirements for Local Assistance projects as a result of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), National Environmental Policy Act (NEPA) delegation to Caltrans. Additional work will be required for processing the technical studies for the First Street Bridge Widening Project to meet the new requirements of Section 6004 (d) (3) for Categorical Exclusions under SAFETEALU. Therefore, LSA is submitting this contract change order request. This change order request is based on several discussions with DMJM/AECOM over the past year and more recent discussions in the past 2 weeks with AECOM, the City, and Caltrans. The suite of technical studies that LSA is currently contracted to prepare include: traffic, water quality, air quality, noise, Historic Property Survey Report (HPSR), Archeological Survey Report (ASR), the Natural Environment Study Minimal Impacts (NESMI), Jurisdictional Delineation (JD), Section 4(f), and Initial Site Assessment (ISA). BACKGROUND LSA had an original budget of $144,430 for the completion of the scope of work: preparation of the Preliminary Environmental Study (PES) Form, technical studies (listed above), environmental document - a Categorical Exclusion (CE)/Mitigated Negative Declaration (MND), and Resource Agencies permitting and coordination. Additional budget of $7,500 was authorized in March 2009 for completion of an updated PES Form, for a total authorized budget of 151,930. ADDITIONAL WORK The following describes work that LSA will need to perform in order to revise and update technical studies due to the inactivity of the project, updated requirements of Caltrans, and additional studies that are currently required by Caltrans Local Assistance and that were not included in the original scope. As noted above, the factors that have changed the scope of work and budget are new Caltrans Local Assistance Requirements as a result of SAFTEA-LU, and Caltrans requirements for new technical reports such as Noise Abatement Decision Report (NADR) and Historic Resources Evaluation Report (HRER) that were recently identified in the PES form and that were not included in the original scope of work. 25B-5 Task 2.1 Traffic/Circulation Use of 2007 Traffic/Circulation Study The traffic report was completed in October 2007. The report was submitted for review to the City however, was not submitted to Caltrans. LSA proposes to submit the 2007 traffic report to Caltrans to see if it is accepted. If it is accepted by Caltrans, then the only traffic work required would be to process the traffic numbers for future 2035 conditions for the air quality and noise reports. Update or New Traffic Study (Optional Tasks) There are two approaches for a new traffic study, in the event Caltrans requires one. These include: 1. Extrapolating 2035 numbers from the existing 2007 report traffic data and updating the report with the new numbers and new traffic counts; or 2. Wholesale update including obtaining new OCTAM model numbers from the Orange County Transportation Authority (OCTA), taking new counts. Approach No. 1 can be accomplished without a tremendous amount of effort or impact on the schedule and has modest budget implications. Approach No. 2 has both major budget and schedule implications and would include basically a brand new traffic study, new counts, new model data, processing of the model data, new report preparation and review by both the City and possibly Caltrans. Task 2.2 C Air Quality (Update) The draft air quality analysis was completed in October 2007. However, the air quality report was not submitted to Caltrans because the project went on hold in February 2008. To reflect most recent changes to Caltrans Standard Environmental Reference (SER) guidelines with respect to air quality and global climate change, new and additional analysis will be required. LSA will prepare an updated Air Quality Analysis for the First Street Bridge project in accordance with the Caltrans Transportation Project Level Carbon Monoxide (CO) Protocol, the EPA's fugitive dust conformity rule, and the South Coast Air Quality Management District (SCAQMD) CEQA Handbook air quality guidelines. LSA will conduct the screening analyses specified in the CO protocol and, if required, conduct CALINE4 modeling for CO hot spots for up to 20 receptor locations for the Existing, Future No Build, and the Build Alternatives. LSA will evaluate the proposed project's impacts to long-term particulate matter concentrations (PMz.s and PMio) and mobile source air toxics (MSAT) using the Transportation Conformity Guidance for Qualitative Hot-spot Analysis in PMz.s and PMio Nonattainment and Maintenance Areas (EPA, March 2006) and the Interim Guidelines on Air Toxic Analysis in NEPA Documents (FHWA, February 2006). In addition, the proposed project's impact on global warming and climate change will be discussed. LSA will submit the particulate matter hot-spot analysis to the SCAG Transportation Conformity Working Group for review and approval. In addition to the revised air quality and particulate matter analyses, LSA will prepare the "Conformity Analysis Documentation for Project-Level Conformity Determinations in Metropolitan Nonattainment/Maintenance Areas" that is now required under NEPA delegation. 25B-6 Task 2.3 Noise Analysis (Update) The draft noise analysis was completed in November 2007 however was not submitted to Caltrans for review because the project was put on hold. The current noise report will require minor revision due to changes in the requirements for noise reports and updated traffic. However, if a new traffic report is required then the noise analysis will require wholesale revision using the new traffic numbers for new modeling. In addition, the noise analysis will be revised to reflect the latest requirements for the noise impacts assessment posted on the SER. LSA will revise the Noise Impact Analysis that assesses the project's potential effects on existing and future noise conditions based on the new alignment. LSA will review applicable noise and land use compatibility criteria for the project area. The noise study revisions include the following tasks: 1) the Noise Analysis (noise modeling) will be updated to reflect updated traffic data; 2) the report will need to follow the current Caltrans Protocol and the new report format provided on the SER website; and 3) the reasonable allowance per benefited residence has been reduced from $36,000 to $31,000 and the report will reflect this change. Update Noise Study to Reflect Revised Traffic Data (Optional task) If Caltrans requires new traffic information under either optional Approach No. 1 or No. 2 described above under the Traffic Study, then this will require additional revisions to the noise modeling that are not included in the above scope of services for the update of the noise analysis. New Task 2.3.1: Noise Abatement Decision Report (New study) A Noise Abatement Decision Report (NADR) will be required to be consistent with the most recent Caltrans Traffic Noise Analysis Protocol, which was not included in the original scope of work. LSA will work with DMJM/AECOM to obtain the engineer's cost estimate for the evaluated abatement, the engineer's evaluation of nonacoustical feasibility issues, and necessary technical reports to assess secondary effects of abatement. The project engineer (DMJM/AECOM) will need to sign the NADR. If feasible sound barriers are identified in the Noise Study Report (NSR), LSA will prepare a NADR. The report will summarize the preliminary reasonableness determination from the noise study report, present the engineer's cost estimate for the evaluated abatement, evaluation of non- acoustical factors related to feasibility, preliminary noise abatement decision, and secondary effects of abatement (impacts on cultural resources, scenic views, hazardous materials, and biology). LSA will prepare the NADR consistent with the Caltrans report guidelines with the best information available. Task 2.4 Cultural Studies (Updates) The draft Archeological Survey Report (ASR) and Historical Properties Survey Report (HPSR) were completed in September and October 2007, respectively. However, these reports were not submitted to Caltrans because the project was put on hold. The ASR and HPSR reports will require significant revisions due to the new ASR form requirements, and updates to the HPSR. The reports will require updated records search and literature search, minor updates to the APE map and additional Native American consultation. Furthermore, the Historical Resources Evaluation Report (HRER) was determined to be required by Caltrans in the PES form. The scope of work for the HRER is described below: 25B-7 New Task 2.4.1 HRER (Optional New Study) It is unlikely that a Historic Resources Evaluation Report (HRER) is necessary for the project because there does not appear to be the need to evaluate properties adjacent to the APE. However, it is included here in the event that Caltrans requires one. The HRER will document identification, recordation, and evaluation efforts for the built environment and historical archaeological resources. The preparers) of the HRER will meet the Architectural Historian Qualifications Standards in Attachment 1 of the 2004 Programmatic Agreement (PA). The HRER will follow the format in Exhibit 6.2 of Caltrans Environmental Handbook Volume 2. The HRER will contain documentation of the research and field methods, a historical overview, the description and significance of identified historic archaeological and built environment cultural resources (if applicable), and findings and conclusions. The HRER will also contain a bibliography, preparers' qualifications, maps, Department of Parks and Recreation (DPR) 523 forms for properties not exempted under Attachment 4 of the PA, and other appropriate documents such as maps, figures, previously prepared resource records, and historical archaeological site records. Determinations of Eligibility will be made for properties within the area of potential effect (APE). It is anticipated that the project will not have any effects on historical resources and that a Finding of Effect will not be required. Task 2.5 Natural Environment Study Minimal Impacts (NESMI) (update) The draft NESMI was completed in November 2007; however, it was not submitted to Caltrans for review because the project was placed on hold. The current NESMI will require update to the report, an additional follow-up site visit, including a daytime visit to inspect the bridge for the bat presence, and a new CNDDB and CNPS literature search to update the occurrence potential for special status species. Task 2.7 Initial Site Assessment (ISA) (update) The draft ISA was completed in September 2007 and was submitted to Caltrans for the first round of review. The comments to the report were received however they were not incorporated to the report, because the project went on hold. The ISA will be revised to provide answers to Caltrans comments, incorporate new records search results and Caltrans comments to provide Asbestos Containing Materials (ACM) survey results findings. These new records search results and ACM survey finding will be reported in the updated ISA. In addition, based on LSA's experience that these studies are typically required by Caltrans, we recommend that the ADL surveys for aerially deposited lead and lead-based paint be conducted by Kleinfelder under their existing contract with AECOM. The ISA report will be revised per findings of these survey results. Task 4.1 Jurisdictional Delineation (update) The jurisdictional delineation report will require revisions regarding changes to U.S Army Corps of Engineers (Corps) guidelines as a result of recent Rapanos Supreme Court decision. The report will be updated to reflect these Corps changes. The Santa Ana River is also subject to review by California Department of Fish and Game (CDFG) under Section 1602 of the Fish and Game Code. 25B-8 EXHIBIT B-1 AECOM CONTRACT STATUS Original Requested Revised Budget Budget Change Orders w/ Requests Design $874,657 $0 $874,657 Construction Support $47,192 $0 $47,192 Optional Tasks Retaining Walls (South Quadrant) $10,589 $0 $10,589 Raised Medians & Landscaping $12,301 $0 $12,301 Environmental EA/FONSI/MND $19,080 $p $0 • . Additional Potholes $0 $4,140 $4,140 Asbestos Survey $0 $5,400 $5,400 PES Preparation (Modified Form) $0 $10,370 $10,370 • WQMP Preparation $0 $19,180 $19,180 Rework Technical Studies DM1M Manage. & Admin. $0 $11,916 $11,916 Meetings $0 $6,448 $6,448 PES Prep. $0 $1,407 $1,407 Technical Studies $0 $9,751 $9,751 LSA Traffic (Update) $0 $500 $500 Air Quality (Update) $0 $7,200 $7,200 Noise Study (Update) NSR (Update) $0 $10,490 $10,490 NADR (New Study) $0 $16,510 $16,510 Cultural ASR (Update) $0 $5,140 $5,140 HPSR (Update) $0 $5,300 $5,300 Native American (Update) $0 $2,700 $2,700 NES(MI) (Update) $0 $4,180 $4,180 Haz. Mat. ISA (Update) $0 $3,330 $3,330 1D (Update) $0 $3,620 $3,620 Optional Tasks HRER (Update) $0 $7,980 $0 25B-9 Traffic(Update-Approachl) $0 $10,190 $10,690 Traffic(Update-Approachl) $0 $7,550 $7,550 NSR (Update) $0 $14,660 $14,660 • 25B-10 ~R!#~~w y REQUEST FOR COUNCIL ACTION Y CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED AMENDMENT TO AGREEMENT WITH ? As Recommended PBS&J FOR DESIGN ENGINEERING ? As Amended SERVICES FOR THE SR-55 / ? Ordinance on 1S` Reading ? Ordinance on 2"d Reading MACARTHUR BLVD. ON-RAMPS ? Implementing Resolution WIDENING (PROJECT NO. 072503 ) ? Set Public Hearing For CONTINUED TO ~'~%`-1-~-`~..-~-.. FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute the attached second amendment to the agreement with PBS&J, subject to non- substantive changes approved by the City Manager and City Attorney, to provide design engineering services for widening of MacArthur Blvd and the on-ramps from MacArthur Blvd to SR-55, in the amount not to exceed $45,000 for a total contract amount of $391,000. DISCUSSION On August 6, 2007, the City Council awarded a contract to PBS&J to prepare environmental documents, plans, specifications and estimates for the widening of the on-ramps and from eastbound MacArthur Blvd to SR-55 (Exhibit 1). The City has been working cooperatively with Caltrans to complete the environmental documents for this project. The traffic analysis prepared for the environmental documents requires widening of eastbound MacArthur Blvd. between the two on-ramps. As a result, additional design work and plan sheets beyond the scope of work in the consultant's agreement will be required. Staff has negotiated the additional fee of $45,000 to provide the design services including survey along MacArthur Blvd. 25C-1 Second Amendment To Agreement With PBS&J January 4, 2009 Page 2 ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Funds are available in the Measure M Street Construction fund (account no. 03217660-66220, project 072503), and Transportation System Improvement Area E (account no. 03417660-66220, project 072503) APPROVED AS TO FUNDS AND ACCOUNTS: Raul Godinez II Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Mgmt. Services Agency 25C-2 MACARTFIUR BOIA_EVAFID sanreaiw ~ooP o~wvYr P~ ~Q `9 ~Y PROJECT LIMITS ~+N °R"^?a~. ~o - Op EXHIBIT 1 Qr . ~ _ SANTA ANA TRL.E~ qTY AMENDMENT TO AGREEMENT WITH PBS 8~J AGENDA DAT~~ FOR DESIGN ENGINEERING SERVICES FOR JAN. 4, 2010 THE SR-55 / MACARTHUR BVLD. ON-RAMPS ~5 "E"`" WIDENING (PROJECT NO. 072503) SECOND AMENDMENT TO AGREEMENT THIS SECOND AMENDMENT TO AGREEMENT is entered into on January 4, 2010, by and between PBS&J, a California corporation ("Consultant") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS: A. The parties entered into that certain Agreement A-2007-185, dated August 6, 2007, (hereinafter "said Agreement") by which Consultant has provided engineering services in relation to the SR-55/MacArthur Boulevard Interchange ramp widening project B. By Amendment dated September 24, 2008, the parties authorized additional Traffic Study services and increased compensation to pay for the additional services. C. In accordance with the terms and conditions of said Agreement, the parties wish to again amend said Agreement to provide additional survey and plans, specifications and estimates for required roadway widening. 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 Second Amendment to Agreement, the parties agree as follows: 1. Section 1, SCOPE OF SERVICES, shall be amended to include additional survey services provided by subconsultant Towill, and additional plans, specifications and estimates provided by Consultant, all as set forth in Exhibit A-2, attached hereto and incorporated by this reference. Said additional work is required to allow for the widening of MacArthur Boulevard, based on preliminary engineering services. 2. Section 2, COMPENSATION, shall be amended to increase compensation by $45,000, to pay for the additional services. City agrees to pay and Consultant agrees to accept as total compensation for all services set forth in said Agreement and this Amendment, an amount not to exceed Three hundred sixty-one thousand dollars ($361,000.00). 3. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. 25C-4 IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to Agreement on the date and year first written above. ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: PBS&J JOSEPH W. FLETCHER City Attorney By: Laura Sheedy KEYVAN PIRBAZARI Assistant City Attorney Vice President RECOMMENDED FOR APPROVAL: RAUL GODINEZ Executive Director -Public Works Agency 25C-5 EXHIBIT A-2 SCOPE OF SERVICES RELATED TO MACARTHUR BOULEVARD INTERCHANGE RAMP WIDENING PROJECT December 9, 2009 25C-6 • An employee-owned company December 9, 2009 Mr. Kenny Nguyen, PE Senior Civil Engineer City of Santa Ana 20 Civic Center Plaza, M-36 Santa Ana, California 92702 Subject: SR-55/MacArthur Boulevard Interchange Ramp Widening Project Contract Amendment #2 (revised) Dear Mr. Nguyen: PBS&J appreciates the opportunity to submit this revised proposal agreement to the City of Santa Ana for approval of additional work necessary to update the SR-55/MacArthur Boulevard Interchange Ramp Widening Project (EA 0H2900). The purpose of the additional work effort is to include widening required on MacArthur Boulevard to adequately address the existing traffic operational issues. The original scope of work included widening the eastbound on-ramps with only restriping MacArthur Boulevard per attachment "A" per the City's RFP in 2007. The original scope of services only included restriping of MacArthur Boulevard; however, our detailed technical analysis determined that the existing width of MacArthur Boulevard is not wide enough to accommodate four general purpose traffic lanes with both left and right shoulders as required by Caltrans. This will require PBS&J to include additional plan sheets and details in the construction documents that were not originally included in the scope of work. Due to the previous work efforts put forth for this project the current budget is not sufficient to complete the project with the additional work required to add the roadway widening on MacArthur Boulevard to the plans, specifications and cost estimate. Therefore, PBS&J is requesting a contract amendment in the amount of $45,000, $35,000 for PBS&J's effort and $10,000 for additional survey on MacArthur Boulevard by Towill. Per our ongoing discussions our request for additional fee is based on the following assumptions: ¦ A full hydraulic/hydrology report is not necessary for this project. Basic calculations with new tributary areas and a memo indicating that water is not backing up to Caltrans right-of--way is sufficient. ¦ The drainage and contour grading plan sheets will be combined. ¦ Utilities will be shown on the layout sheets to eliminate separate utility sheets. ¦ The signing and pavement delineation sheets will be combined. ¦ Water pollution control plan sheets will not be required. However, the water pollution control items of work must be in the Caltrans Special Provisions, in the Summary of Quantities plan sheets and in the project cost estimate. The Caltrans Standard Plans will provide the plan sheet information. 625 The City Drive South • Suite 200. Orange, California 92868 • Telephone: 114.750.7215 • Fax: 714.750.2501 • www.pbsj.com 25C-7 December 9, 2009 Mr. Kenny Nguyen, PE Page 2 ¦ Cross sections are not required as part of the plan sheet package. Caltrans typically provides cross sections to the contractor separate from the plan sheet package. Since this is a City administered project the cross sections are not required. If any of these assumptions change during the course of preparing the final plans, specifications and cost estimate and obtaining approval from Caltrans, PBS&J may respectfully request further compensation to address the change is the scope of work. As the City is aware PBS&J has provided services beyond what was originally scoped to complete environmental documents to obtain a Categorical Exemption (CE), including preparing a complete technical environmental report. Please note that this request does not include any earlier work efforts in support of the environmental document. We sincerely look forward to completing this project with the City. Should you have any questions or concerns please don't hesitate to call me. Sincerely, Keyvan Pirbazari, P.E. Vice President cc: Sherry Nour. P.E. file l'~y~® 25C-8 f , 1 # , ~ r~ 1 ,~1 % / II 1, ~ t ~i ~ 1 1 , \ ~ ~ ~ \ 1 J it ~ z Ll ~ ~ ~ ~ ~ _ ~/./.fix;.\~\1, ~ ` r r`°\\\~~ e~- ! i ~ ~ ~ , ~ o 'ti ~ \ 1\ \ 'ti, ~ !i ~ 25C-9 City of Santa Ana Preliminary and Final Design for Ramp Widening of MacArthur Blvd. at SR-55 Interchange Extra request 12-9-09 Labor Category Person Hour Rate/Hour Total Labor Project Principal 0 $ 216.00 $ - Project Manager 20 $ 184.32 $ 3,686.40 Project Engineer 35 $ 157.85 $ 5,524.75 Civil Engineer 75 $ 86.40 $ 6,480.00 Environmental Manager 0 $ 165.60 $ - Environmental Planner 0 $ 100.80 $ - Structural Engineer 0 $ 155.52 $ - Cadd 150 $ 128.16 Admin $ 19,224.00 0 $ 57.60 $ - TOTAL 280 $ 34,9].5.15 ODC (PBS&J) Unit Unit Rate Amount Mileage 100 $ 0.55 $ 55.00 Reports /Printing LS $ 1.00 $ 29.85 Phone LS $ 1.00 $ - Postage/FedEx LS $ 1.00 $ - TOTAL ODC $ 84.85 Sub-Consultants Amount Leighton - Geotechnical $ _ Uran Cross Road -Traffic $ _ Towill -Survey, utility $ 10,000.00 TOTAL SUB-CONSULTANTS $ 10,000.00 GRAND TOTAL $ 45,000.00 25C-10 REQUEST FOR ~R COUNCIL ACTION T ~ CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED ? As Recommended AGREEMENT AMENDMENT WITH VIDEO ? As Amended si ? Ordinance on 1 Reading ENGINEERING SERVICES FOR CABLE ? Ordinance on 2"d Reading EQUIPMENT MAINTENANCE AND VIDEO ? Implementing Resolution PRODUCTION SERVICES ? Set Public Hearing For CONTINUED TO v-~--------~~- FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute the attached agreement with Video Engineering Services for video production and cable equipment services for one year in an annual amount not to exceed $99,660, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION On January 5, 2009 Council approved a one-year agreement with Video Engineering Services for cable equipment maintenance and video production services. Video Engineering Services provides technical expertise for the purchase, installation and maintenance of City owned audio and video equipment in the City Council Chambers. In addition, Video Engineering Services assists the City Clerk and other users of the Council Chambers with audio recordings and lighting in the Council Chambers, and provides technical assistance on other audio/visual related projects. This agreement amendment exercises the first of four one-year options. The agreement stipulates that compensation costs associated with the extensions may be renegotiated annually. Video Engineering Services did not request an increase this year. The Parks, Recreation and Community Services Agency is satisfied with the quality of services provided by Video Engineering Services and recommends approval of this agreement. 25D-1 Agreement with Video Engineering Services January 4, 2010 Page 2 FISCAL IMPACT Funds for this agreement are available in the Recreation, Contract Services - Professional account (no. 01113230 62300). APPROVED AS TO FUNDS AND ACCOUNT: Gerardo Mouet, Francisco Gutierrez, z Executive Director Executive Director Parks, Recreation and Finance and Management Services Community Services Agency Agency 25D-2 FIRST AMENDMENT TO CONSULTANT AGREEMENT THIS FIRST AMENDMENT TO CONSULTANT AGREEMENT is made and entered into this 4th day ofJanuary, 2010 by and between Video Engineering Services (hereinafter "Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS: A. The parties entered into Agreement # A-2009-008, dated January 4, 2009 (hereinafter, the "Agreement") by which Consultant has provided cable television compliance services to the City. B. In accordance with the terms and conditions of said Agreement, the parties wish to extend the term of the 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 Second Amendment to Consultant Agreement, the parties agree as follows: 1. Section 3, TERM, shall be amended to extend the termination date to January 31, 2011. 2. 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 Second Amendment to Consultant Agreement on the date and year first written above. ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: VIDEO ENGINEERING SERVICES JOSEPH W. FLETCHER THOMAS E. BYSTRY City Attorney Owner 25D-3 25D-4 REQUEST FOR ~ ~ a~ ~ COUNCIL ACTION ~ CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED As Recommended COOPERATIVE WORK AGREEMENT As Amended Ordinance on 1St Reading EXTENSION WITH THE Ordinance on 2"d Reading DEPARTMENT OF TRANSPORTATION Implementing Resolution FOR FLOWER STREET BIKE TRAIL Set Public Hearing For AND BRISTOL WIDENING PROJECTS / CONTINUED TO ~ ~ ~ Wit..,- FILE NUMBER CITY MANAGER RECOMMENDED ACTION Direct the City Attorney to prepare and authorize the City Manager and the Clerk of the Council to execute a Cooperative Work Agreement Extension with the Department of Transportation to extend the completion deadline and scope of work on Flower Street Bike Trail and Bristol Street Widening projects. DISCUSSION The Flower Street Bike Trail is being constructed with Department of Transportation Bicycle Transportation Account Grant (BTA) funds. The grant requires that the City complete the project and submit final invoicing to the State by April 2010. The project is currently under construction and is scheduled to be completed by mid-February 2010. Because the completion date of the project is close to the April 2010 deadline, the Department of Transportation is requesting the city submit a Cooperative Work Agreement (CWA) Extension as insurance, in the event the project is delayed due to unforeseen circumstances. The agreement will also identify a Scope of Work change to reduce the improvement area due to funding limitations. The City has applied for competitive grant funding to complete the bike trail connection. The Bristol Street Widening Project is funded through a number of grant funds including a $971,000 Federal fund from National Corridor Planning and Development Program (NCDP). The grant requires the funds to be expended by June 30, 2010 or an extension must be filed by the City. The City used some of the NCPD funding to pay for right-of-way acquisition for the segment between Pine & Third Streets. The remainder of the funds will be used for the intersection of Seventeenth and Bristol Streets. The Department of Transportation is requesting that the City execute a Cooperative Work Agreement Extension to ensure all funding is protected in the event the project goes beyond the deadline of June 30, 2010. 25E-1 Cooperative Work Agreement Extension January 4, 2010 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. ~L{.~ Raul Godinez Gerardo Mouet Executive Directo Executive Director Public Works Agency Parks, Recreation and Community Services Agency I 25E-2 REQUEST FOR -m~ COUNCIL ACTION ~ a CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED ? As Recommended AMENDMENT TO AGREEMENT WITH FAIR ? As Amended sc HOUSING ORANGE COUNTY FOR ANALYSIS ? Ordinance on 1 Reading ? Ordinance on 2"d Reading OF IMPEDIMENTS TO FAIR HOUSING ? Implementing Resolution CHOICE ? Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and the Clerk of the Council to execute the attached amendment to the agreement with Fair Housing Orange County in the amount of $5,800 for a total agreement amount not to exceed $78,000, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION The Department of Housing and Urban Development (HUD) requires local governments to prepare an analysis of impediments to fair housing which addresses eliminating racial and ethnic segregation, illegal physical and other barriers to persons with disabilities and other discriminatory practices in housing. The City is currently in the process of preparing the Consolidated Plan for the period 2010-2015. As part of the Consolidated Plan, grantees are required to submit a certification that the City has completed the required fair housing planning through: - The completion of an Analysis of Impediments; - Development of actions to eliminate any identified impediments; and - Maintain Affirmative Fair Housing records. Fair Housing Orange County has been selected to conduct the analysis of impediments to fair housing choice. The City has an agreement with Fair Housing Orange County to provide fair housing education, counseling and enforcement for fiscal year 2009-2010 in the amount of $72,200. As a result of this agreement, City Council approval is required for the 25F-1 Amendment to Agreement with Fair Housing Choice January 4, 2010 Page 2 additional $5,800 which will ensure the completion of the analysis of impediments to fair housing study. FISCAL IMPACT Funds are available in the CDBG account (no. 13518780- 62300/10750001001). APPROVED AS TO FUNDS AND ACCOUNTS: R~cc~ ~ . , Cy t is J. els Francisco Gutierre z Deputy City Manager for Executive Director Development Services Finance & Management Services Agency Community Development Agency CJN/NTE/FH/mlr 25F-2 FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT is entered into on the of January 2010, by and between Fair Housing Orange County, a California non-profit corporation ("Subrecipient") 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 parties entered into that certain Agreement Between the City of Santa Ana and Fair Housing Orange County for Use of Community Development Block Grant Funds, dated July 1, 2008, (hereinafter "said Agreement") by which Subrecipient has been providing fair housing education, counseling and enforcement. B. In accordance with the terms and conditions of said Agreement, the parties wish to amend the Scope of Work that Subrecipient will provide to the City and increase the compensation to be paid to Subrecipient. 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. The Scope of Work that is referenced in the Agreement and attached as Exhibit A, shall be amended to include the Scope of Work attached hereto and incorporated herein as Exhibit A-1. 2. Section II A., Payment of Funds, shall be amended to increase the payment by City to Subrecipient with an additional amount not to exceed $5,800.00 for the additional i services, for a total not to exceed amount of $78,000.00. 3. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. i 25F-3 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Agreement on the date and year first written above. ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: FAIR HOUSING ORANGE COUNTY JOSEPH W.FLETCHER City Attorney By: LISA E. STORCK Name: Assistant City Attorney Title: Tax ID: 95-2538829 2 25F-4 EXHIBIT A-1 Fair Housing Council of Orange County Regional Analysis of Impediments to Fair Housing Scope of Work Progress Report This Work Task includes an assessment of the progress made in eliminating or ameliorating the regional impediments identified in the 2005 AI. The private and public impediments included the following: Private Impediments 1. Population and local government cannot differentiate between housing provision vs. discrimination. 2. Housing industry discrimination: zoning, insurance, appraisals, advertising. 3. "Color" blind policy causes disparate impact (i.e., credit scores in determining a persons insurability and occupancy restrictions. 4. Employer lack of supports results in segregated housing. 5 High loan denial rates are x3 among upper income Blacks and X2 for equally situated Hispanics. Public Impediments 6. CRA funds are not targeted in ways assisting low-income persons and neighborhoods in home ownership and financial stability. 7. Some jurisdictions underestimate the extent of discrimination; therefore, reducing or not paying fair share of services provided by OCFHC. Communi Outreach Three community outreach meetings will be conducted in order to obtain resident input on fair housing concerns. The meetings will be held in middle to late January 2010. The community outreach meetings will be held in three different locations within the region in order to attract residents from as many jurisdictions as possible. Community Profile This Work Task will include an update of the tables and analysis contained in Sections 2, 3, 4 and 5 of the 2005 AI. Attachment A describes the tables that will be updated, as well as the data sources, for each Section. The key data sources include Census 2000, CHAS, California Department of Finance and the 2006-2008 American Community Surveys. Attachment B lists of the cities covered by the American Community Surveys. The 2006-2008 and 2008 American Community Surveys will be used to update data on characteristics that relate to the protected groups including the following: ¦ Disabled ¦ Race • Hispanic or Latino and Race ¦ Families with Children ¦ Speak English Less than Very Well 3 25F-5 Publh Sectorampediments The purpose of this analysis is to determine, at the individual jurisdictional level, whether fair housing impediments exist. ¦ Impediments to fair housing caused by regulations (or the lack thereof) in zoning ordinances such as: ? Definition of Family ? Lack of a Reasonable Accommodation Procedure ? Treatment of Residential Care Facilities and Group Housing inconsistent with fair housing laws ? Lack of regulations to facilitate Transitional and Supportive Housing This Work Task will be completed by the cities and the Fair Housing Council of Orange County. Each City will be provided with HUD's Fair Housing Impediment Study -Review of Public Policies and Practice (Zoning and Planning Codes). The review consists of 18 questions on zoning and planning practices for which responses must be developed. Each City and the will be requested to complete the review in a standard format of Background, Zoning Regulations and Conclusion. The Fair Housing Council will provide the Background analysis which will explain the fair housing concerns raised by the review question. ¦ Impediments to fair housing caused by housing policies (or the lack thereof) in key policy documents. This Work Task will include a review of the housing elements to determine the nature and scope of the fair housing programs included in the element. In addition, the review will determine if funding support is provided to address the needs of protected groups such as housing for the disabled (i.e., home modifications) and female householders with children. Additionally, the review will determine if the cities have identified constraints or impediments such as the lack of a reasonable accommodation procedure. ¦ Review of Housing Authority policies (or the lack thereof) to affirmatively further fair housing. The Public Housing Agency Plans of the housing authorities will be reviewed to determine stated policies and objectives that affirmatively further fair housing. The review will include the Orange County Housing Authority and the Housing Authorities for the cities of Anaheim, Garden Grove and Santa Ana. ¦ Review of Section 8 Housing opportunities outside of minority population concentrations. The purpose of this Work Task is to determine if Section 8 assisted households are residing principally in low income or minority neighborhoods. The Fair Housing Council will request that each Housing Authority identify the number of Section 8 assisted households by census tract. The numerical and percentage distributions then will be compared to the low income and minority population characteristics of each census tract. A correlation analysis will be completed to determine the extent to which Section 8 housing opportunities are located in neighborhoods that are predominantly low income and/or have minority population concentrations. ¦ Review of affordable opportunities outside of minority population concentrations. This Work Task will include the development of an inventory of current and future affordable housing opportunities. The location of affordable housing developments will be determined from local housing elements and data sources such as the California Tax Credit Allocation Committee list of approved projects from 1987 to now. The census tract 4 25F-6 location of affordable housing will be compared to the areas of low income and minority concentrations. Rr[v~__ ~S~cto~~m ,edime~nts . , t ¦ Review of housing discrimination complaints. This Work Task will involve an analysis of housing discrimination complaints filed by residents of the entitlement cities and Urban County. The period of analysis will cover 2004-2009 and include a trends analysis of the number and bases for the discrimination complaints. The housing discrimination data will be provided by the Fair Housing Council and to the extent necessary will be obtained from the State Department of Fair Employment and Housing and HUD. ¦ Review and analysis of real estate advertising. This Work Task involves a review of for rent and for sale advertising to determine if limitations on the availability of housing are stated which violate fair housing laws. A review of will be completed of ads placed over a two month period (8 editions) in the Los Angeles Times and Orange County Register as well as local newspapers to the extent possible. Additionally, ads placed in the For Rent Magazines and Homes for Sale Magazines will be reviewed and analyzed for purposes of identifying the use of discriminatory terms. ¦ Review and analysis of hate crimes trends. This Work Task involves the collection and analysis of hate crimes as well as the location of the hate crimes. The following tables will be developed based on statistics compiled by the Office of the State Attorney General: ? California Hate Crime Events and Bias Motivations - 2004-2008 ? California Location of Hate Crime Events - 2004-2008 ? Number of Hate Crime Events by City - 2004-2008 The frequency of hate crime events that occur at a residential location will be estimated on the basis Statewide percentage. In addition, this Work Task will identify resources that can address the needs of hate crime victims. ¦ Review and analysis of discriminatory lending. This Work Task will update the HMDA tables found in Section 6 of the 2005 AI. The 2008 HMDA denial rates will be computed at the census tract level and also aggregated to the city level. Instances of high denial at the city/census tract level will be identified in a table. In addition, the HMDA data will be used to prepare the following two tables: ? Denial rates by race/ethnicity for FHA, conventional, refinance and home improvement loan applications ? Reasons for loan denials by race/ethnicity for FHA, conventional, refinance and home improvement loan applications 'I Additionally, a comparison of the census tracts with high denial rates will be compared to the low income and minority characteristics of each census tract. A determination will be made of whether there is a strong correlation between loan denial rates and the low income/minority characteristics of the census tracts with high loan denial rates. 5 25F-7 Ah8umma ra~d.Actlgn~Recommendatlons This Work Task will produce an AI Summary and Action Recommendations for each entitlement city and Urban County as a whole. The AI Summary and Action Recommendations will be in a format that the cities and Urban County can insert in the Other Narratives section of the Consolidated Plan submission (that is, the CPMP or Consolidated Plan Management Process Tool.) The AI Summary will include: ¦ A brief overview of the regional demographic profile as it pertains to countywide fair housing concerns. ¦ A brief profile of the population, housing, and other demographic characteristics of each city and the Urban County. • A brief overview of the regional private sector impediments that apply to all entitlement cities and the Urban County. ¦ A summary of each jurisdictions public sector impediments that were identified as part of HUD's Fair Housing Impediment Study -Review of Public Policies and Practice (Zoning and Planning Codes). The Action Recommendations will include the following: ¦ A summary of the actions proposed to eliminate or ameliorate the identified private and public sector impediments to fair housing choice. To the extent possible, timelines will be determined for implementation of the fair housing actions. ¦ The actions to eliminate and ameliorate private sector impediments will be implemented by the Fair Housing Council of Orange County on behalf of the participating entitlement cities and Urban County. For potential actions that extend beyond the scope of services provided by the FHCOC, estimated budgets and timelines will be established. ¦ The actions to eliminate and ameliorate public sector impediments will be implemented by each entitlement city and the cities that belong to the Urban County. Insights on the possible funding and timelines to implement the actions will be based on each jurisdiction's housing element. Report Preparnti4n This Work Task involves the completion of a Draft and Final Report. The complete report will include the results of the prior Work Tasks and the profiles developed for each participating jurisdiction. The reports also will include input received from the participating jurisdictions. I 6 25F-8 Attachment A Regional Fair Housing Impediments Analysis Update of Regional Demographic Profile Tables (Section 2 of 2005 AI) • 2009 Population Estimates for Entitlement Cities and Urban County ¦ Population Growth April 1, 2000 to January 1, 2009 for Entitlement Cities and Urban County ¦ 2009 Housing Estimates for Entitlement Cities and Urban County ¦ Housing Growth April 1, 2000 to January 1, 2009 for Entitlement Cities and Urban County • 2009 Top 50 Employers in Orange County • Employment Characteristics for Entitlement Cities and Urban County December 2009 Update of Minority Population Characteristics Tables (Section 3 of 2005 AI) Orange County Minority Population Growth Trends - 1990-2008' Orange County Hispanic Population Growth Trends - 1990-2008' ¦ Population by Race and Ethnicity for Entitlement Cities and Urban County - 2000 ¦ Population by Race and Ethnicity for Entitlement Cities and Urban County - 2007/20082 • Hispanic Population Growth Trends for Entitlement Cities and Urban County - 2000 -2007/20082 • Orange County Population Projections by Race and Ethnicity - 2000 to 20303 Update of Income Characteristics Tables (Section 4 of 2005 AI) ¦ Household Income Groups for Entitlement Cities and Urban County -1990/20004 ¦ Median Income of Households, Families and Nonfamily Households for Entitlement Cities and Urban County - 2007/2008 ¦ Income Below Poverty Level by Age for Entitlement Cities and Urban County - 2007/2008 Update of Protected Group Characteristics Tables (Section 5 of 2005 AI) ¦ Householders by Sex of Householder for Entitlement Cities and Urban County - 2007/2008 ¦ Families with Children for Entitlement Cities and Urban County - 2007/2008 ¦ Disabled Persons by Age for Entitlement Cities and Urban County - 2007/2008 ¦ Poverty Rates for Families with Children for Entitlement Cities and Urban County- 2007/2008 ¦ Poverty Rates for Female Householders with Children for Entitlement Cities and Urban County - 2007/2008 'Estimates will be based on the 2008 American Community Survey for the entire Orange County area. ZEstimates will be based on the 2006-2008 and 2008 American Community Surveys. The ACS estimates are averages for the period covered; therefore the individual jurisdictions estimates will be either mid-year 2007 or mid-year 2008. The population estimates will be based on the State Department of Finance (DOF) estimates. The ACS race/ethnicity percentages will be applied to the DOF population estimates. 3Projections will be based on the most recent projections of the State Department of Finance and the Center for Demographic Research. 4Extremely Low, Very Low, Moderate and Above Moderate 7 25F-9 Attachment B Orange County Regional Analysis of Impediments to Fair Housing Availability of the American Community Survey by Jurisdiction CITIES 2007 ACS 2008 2008 ACS 3 Year ACS Anaheim X X X Buena Park X X X Fountain Valle X X X Fullerton X X X Garden Grove X X X Huntin ton Beach X X X Irvine X X X Lake Forest X X X La Habra X X X New ort Beach X X X Oran e X X X Santa Ana X X X Tustin X X X Westminster X X X COUNTY OF ORANGE Aliso Vie'o X Brea X C ress X Dana Point/Capistrano X Beach Foothill Ranch La una Beach X La una Hills X Los Alamitos La Palma Ladera Ranch La una Woods Midwa Cit Placentia X Seal Beach X Stanton X Trabuco Can on Yorba Linda X X X 8 25F-10 REQUEST FOR COUNCIL ACTION mar. CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE APPROVED CONSULTANT AGREEMENT FOR GO ? As Recommended LOCAL PROGRAM STEP 2 PUBLIC ? As Amended ? Ordinance on 1 S` Reading OUTREACH ( PROJECT 0 9 - 2 5 0 5 ) ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER ITY MANAGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute the attached agreement with Consensus Inc. in the amount of $50,000, to initiate the Go Local Program Step 2 public outreach program for the Santa Ana and Garden Grove modern streetcar project, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION On May 12, 2008 the OCTA Board allocated $5.9 million in Step 2 funding to Santa Ana for planning and development of a modern streetcar concept. On August 3, 2009, the City Council authorized staff to execute an agreement with the Cordoba Corporation and its team of consultants to conduct the Go Local Program Step 2 technical analysis. At the same time, the City Council approved setting aside $50,000 to hire a Public Outreach firm to support Santa Ana's Go Local planning and development activities. Due to the interconnection between the fixed guideway project and the planned SARTC expansion and Santa Ana Boulevard grade separation project, as well as the Station District project, the public outreach team will be asked to develop a program which improves community understanding and solicits community feedback on the City's overall transit vision which also encompasses initiatives such as the Station District and the new Transit Zoning Code. This outreach effort would be coordinated internally between Public Works, Community Development and Planning and Building agencies with assistance from the OCTA Public Affairs Department. Among other things, the public outreach program will clearly communicate anticipated community benefits, potential community impacts, and possible economic development opportunities associated with these various projects. Given the magnitude and complexity of these 25G-1 Consultant Selection Public Outreach January 4, 2010 Page 2 of 2 projects; it is imperative that a skilled team of professionals conduct a comprehensive public outreach campaign (see Exhibit A, Scope of Work). Staff interviewed each of the outreach firms that originally proposed as a team member on the Go Local project. It was determined that Consensus Inc. is best suited to help the City meet its public outreach objectives. Consensus Inc. is a leading strategic communications firm in Southern California with a keen understanding of how community relations, media strategy and political outreach work seamlessly together to deliver results for clients. Consensus Inc. specializes in communicating complex and controversial information to communities, public officials and the media (see Exhibit B, Qualifications). Led by a team of multicultural professionals with a broad range of experience in local, state, and federal government, community relations, media strategy and public relations, Consensus Inc. brings unique insight to the communication challenges marked by emerging polarization among business, government and members of the public. Consensus Inc.'s proposed project manager, George Gonzalez, is fluent in Spanish and is familiar with the community as he helped Santa Ana coordinate a successful 2000 Census. The principal in charge will be Jennifer Labrado. She has been involved with projects such as the Anaheim Fixed Guideway Project, Irvine's i-Shuttle, the California High Speed Train, the Metro Gold Line Foothill Extension and The Boulevards at South Bay. Staff recommends that Council award an agreement to Consensus Inc., who originally was part of the David Evans and Associates project team that proposed on the Go Local Program Step 2 technical analysis, to conduct the public outreach program based upon their related experience, key personnel and project team (see Exhibit C, Agreement). ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Funds are available in the Measure M - Street Construction Fund (account no. 3217661-66220, project 09-2505). APPROVED AS TO FUNDS AND ACCOUNTS: Raul Godinez I Francisco Gutierrez Executive Dire r Executive Director Public Works A ncy Finance & Management Services Agency 25G-2 SANTA ANA TRANSIT PROGRAM PUBLIC OUTREACH I. INTRODUCTION The City of Santa Ana requires the assistance of a Consultant with excellent experience in preparing and executing public outreach programs for complex transit studies. The Consultant must have in-depth knowledge of CEQA/NEPA requirements for public participation; familiarity with local leaders, issues, and neighborhoods; understanding of economic development issues and opportunities; and appreciation for the intricate relationship between land use and transportation. The public outreach program shall communicate fixed guideway study information to the public in order to gain community understanding and solicit community feedback. Among other things, the public outreach campaign should clearly communicate anticipated community benefits, potential community impacts, and possible economic development opportunities associated with the Santa Ana Fixed Guideway project. II. PROJECT BACKGROUND The Santa Ana Fixed Guideway Project will serve as local connector to regional and national rail, bus, and airport transportation services provided at the Santa Ana Regional Transportation Center (SARTC). It will also serve as a local circulator in the downtown/government center area, the Station District and several other Santa Ana neighborhoods. The desired attributes of the Santa Ana Fixed Guideway system are: 1. Stimulate land development and economic activity 2. Integrate well with the surrounding community 3. Provide connectivity between regional rail and bus services at SARTC and major destinations 4. Ensure that passenger safety and security are adequately addressed 5. Use clean energy 6. Be attractive, comfortable, friendly, accessible and easy to maintain 7. Integrate well with bicycle and pedestrian activity 8. Provide acost-effective system 9. Meet future mobility needs 10. Maximize use of existing right-of-way 11. Engage with business and activity centers along the line 12. Minimize construction impacts III. SCOPE OF WORK Task 1 -Develop messaging which effectively communicates the linkages among: • Santa Ana Fixed Guideway Project • SARTC Master Plan 1 EXHIBIT A 25G-3 SANTA ANA TRANSIT PROGRAM PUBLIC OUTREACH • Santa Ana Boulevard grade separation • Station District • New Transit Zoning Code Task 2 Pre are "canned" resentation for Cit leaders and staff to share with: • Neighborhoods • Business and professional groups • Stakeholders Task 3 -Provide support for community meetings includinq• • Meeting facilitation • Preparation of meeting notices and agendas • Review and refinement of presentation materials • Preparation and distribution of meeting summaries with action items Task 4 -Attend technical team meetings as requested: • Bi-weekly Fixed Guideway Project status meetings • Monthly Fixed Guideway Project Development Team meetings • Station District team meetings • Other meetings to be determined Task 5 -Provide timely written updates to Santa Ana's: • Public Works Agency • Community Development Agency • Planning and Building Agency • Others, as requested Task 6 -Assist with CEQA/NEPA public meetings includinq• • Scoping meeting(s) • Public hearing(s) While carrying out each of the above activities, the Consultant shall gain prior approval from the Fixed Guideway project manager and/or transit program manager for all materials to be presented and distributed to the public In addition, the Consultant shall create and maintain a meeting environment that: • Stimulates discussion • Encourages everyone to express an opinion • Discourages personal attacks • Prevents any individual or group from dominating the meeting Finally, the Consultant shall present immediate feedback to the Fixed Guideway project manager and/or Transit program manager when highly controversial issues arise or negatively charged meetings occur. z 25G-4 EXHIBIT B 25G-5 ~r~+~~~ ; firm PruY~e ~ ~irrr~ ~x~r~ri~n€;~ 9 Project ~x~P,rienc',~ , , . ~i ~t~ff Bi~~r~~phies .................................................................8 25G-6 ~ns~nsu~nc. tl C:~r3Ct. ~'i:i?(i•J cif', (1; i~I E;frtGE;, Firm Pr~~le ~:ansens~s inc. is tine of the largest firms in the western United Mates specializing in community vela#Ierss. since 19136, the firm has successfully engaged the public, buitding grassra~ots community support far complex prajects in the transportation, environmental, put~lic fz~c;i=ides artd real estate industries. Our extensive transportation experience includes designing and implementing public; involLsen7ent prograrris far multi-modal, multi-jurisdictional prajects often located within mufti-cultural communities. Our corr~rnu^ication programs are strategically designed to allow for w;de participation while reducing conflic# and confusion. 7'he Consensus Inc. portfolio of transportation prajects includes: ¦ ~`ransporta#ion planning }feasibility studies ¦ Goods moven~enL~freigt corridor studies ¦ Enviror~rrEental Impact Reports'~tatements ¦ Nigh-speed rail • Sus rapid transit expansions ¦ Sridge retro?its ¦ Major investment Studies. for highway corridors ¦ Light rail expansions ¦ Urban {:,•arrictor studies ¦ Interstate highway expansions Consensus inc. believes that mobili#y serves as the fo:~ndation for the ctualihr of life and economic• viability of our region. Engaging the public in the development andrmplementation of transportation solutions provides stakeholders wikh a sense of ownership and accaurrtat~ility as concepts evolve into reality. Firm Experience Ov~.>r the past years. Consensus inc. zas provided public s~uireach expertise for transportation projects thra;~gttout Califarnla. ~ snapshot of the transportation-related public outreach programs designed and implert~ented by our highly sk=lied staff is provided be'C7k41. 25G-7 t F k t to t"~ - kl r: „m_._ ,..-,.,.~.~....-af _~-.,a ~W ~";~'.~'7!t'iLt#sA.;=~Sa Hic)~ ;eed Tr,~iri jvt:[ i;A Nigh-.~;:~nt-d R~ii Auh~=;;y Riti~rs ~'e Geunt~y-~Srange County t~err Majar Inuestn~enE St,,d~ 't'7:, Si~.t~, t~rar~~~ ,,,,;;rat, P~a~or i^wzst~rcnt Study. O~iA R9rtra C~a4d . , ;r~trt~th;ll Extension ~:fGL~~E Ct~nUt~e~ u; i AutnaritY efr~ C~naraa , r~,~su rta~or: Cc:rdor Prfl;ec;t,_spran~e lane; cx;~ ~~;~r:l ",!I~t.s Anahe;rn % red Gc~s~eway ~ ~ .~rYt An;~hzzir~l T- ~sf I:"aster€3tr~t7 ::'y t~f ~n~?tsier? Gcr Lo as Alamitos ~ Seal Such Cues of Lois Alan ~ix~s 8 Seat irte state dry `Niderrnr~ - Snvitt>ttmerifal Pha~5~3 Ct~7A -S t 1... ,(l~ vir.~ ~US 1•°'1 ~=?ee gay Gerrdpr ;rnp~~v~mer~„ Study CaH.ra~^s+Metro Las Ar~yeles to ~-r ~ H:F ~;~eed t <a:n Project H `~~.~ed Rail Auttlor,ry 101 y~~ .^tE>rch~7roga !mprpve7~~~r3f ?~cgram SCAG Caitr~3r~s Met '~c'd Line Fi~o'tZitt Extensit~n LA;rOni<ir;U I• temairu~r~;l F~irpu~ FvivLFE C,o~?siruc; urn A'.~t'r~it~TY San S ° . t~ nod :~d~ Alterna4ives,: ~ayt,l1 SAR ~.=xG hS . •.~';r, t~i~jer inv~s'r~ert' St.~'Y "stetrn # ;Interim NpV Lane i~rc~.€ ~~-enE Study 1;a~.~ I-; 1 ? ^,°tajor ~ ~ irr,dc~- Stardy t,9ar~~=Ci~lirrns SR, l 7~. ,v€;menz Study t.',•t-i S~rn F_~r~ ar~r r t. .;y East-YU'~rst 7rarrs+t C~irrd~r P~.1~3tr~ +"'r~, ire L,~~el ~~4ct~~ Na9irzr~a` -1t =:h ,'r°, Study ti.• • ; e "_~te aC7Ts C~3ilartara iii+. ~•ueed Rar€ Fid:.,a; _.s S.au'y SuAG LI~XSc~c,th -~r:r~e i~~et~nty;i Hirsh-S~+eed Grr~und Accas~ Stu~h? SLAG S~rid~~ Irr;7sr ~~~nt Program - C ty of t-cam A^re3es P:letrcVc :!<~n E3.=kersfiel~ 1 -,,..,,>~t~!tatit~r3 System Study (;aliransrKer- C:~3G PutEv' s ny `.^1e~CSid~ Ivti+~or I~~.=sr"'~rat Siudy >'4letrt3 25G-8 ~onsen~uslnc, ~n"ce>ract. Inneuate, lr;tlue~rc:~, Rr~ject Experience California High-~p~e~ Rail Au~hc~rity Pu~ii~ 3nvoi~ement Program for flee Feasibility and Enwiranrrrentai CALlFO~tJIA Studies of a l"ligh-speed Raii System in Caiifnmia ~;~~-Speed Rrail Authority Since 1994, Consensus Inc. has developed and implemen#ed statewide public involvement programs -including strategic communications and media relations programs -for the California Nigh-Speed Rail Authority (CNSRA}. Our work includes public involvement programs for various feasibility and environmental studies for a proposed statewide system. Consensus Inc. has successfully reached out to elected offirials, public agencies, special interest groups, communi#y stakeholders, city and county staffs, i;hambers of commerce and other business organize#ions to provide them with project information speoific #o the development of initial alternatives, gain their feedback and comments, and answer their questions rely#ed to high-speed rail in California. ~ California Statewide Nigh Speed Ralf Feasibility Studies (1994 - 159fi} Public involvement Programs for the Los Angeles to Bakersfield Segment: Program-Level Enviranmen#al impact Statement/ Ftepork {EIS,EiR} {2gg1 - 2803} Los Angeles to f~'alrndale Section Environmental Review and Preliminary Engineering {2gg7 to Present} Anaheim to Los Anr~eles Corridor Section (20177 #o Present). Consensus Inc_ directs the public involvement program for the Anaheir~~ to Los Angeles (A-LA} corridor for the environmental review and preliminary engineering phase of the project. This section is part of ar 8gt3-mile high-speed train line that will run throughout the state from San C)iego to the Bay Area and Sacramento. The A-LA section is considered to be the furthest along in development, and much of Consensus inc.'s outreach program is used as the model far the Qther ser<tions. In Spring 2gg7, Consensus inc. coordinated and executed three public scopina meetings in Anaheim, Norwalk anri Los Angeles #o r 25G-9 receiv€; ar.put from st~akehxalders about the scrape of the env<rorarnesEtal review prot:ess. 1~1ora ttaan 1~g stakeholders attended tha_ meetings, consisting of a hybrid open boat€s~:lpresent~tirn fcarmat. Try nofif}r the pt~kal€c caP thy; mt~etings,. Consensus tnc. n~xiied ~,5Jg bilingual notices to stakeholders. placed paid advertisings in 11 Moral publications and asked focal corric€or cities icr distribute irtforrt~atinn to their residents. In addition. Consensus tnc. worked with the technical team to design a presentation that was bath thorough arrd easy-tcr•understand. !n the I'~all of 2t1tJ8, Consensus lnc_ fxctlitated Design Workshops with staff frurn each individual corridor city to provide staff an overviev+r of the alignments through their city and t4 obtain feedback on potent[xl impxc#s. Consensus tnr_ is currently working closely with the secti~xn"s tecttraical tea€n to once again engage both the corridor cities and interPSted stakeholders to cpnartaunic~te the details of the Alternatives Anatysis. `rlJhile directly supposing the project`s outreach as is required by CE~tA and NEPA, Consensus inc. conducts general outreach within the CCarridrar area, €~s well as in the Southern Califomia region given the large-scale scope of high-speed rail, ~;onsensus Inn. identifies and pricrifizes community argxnizations that will have the most interest in the protect, as well as high-level stakeholders with Interested ccanstitue~ncies. resulting in mere than 11t1 groups and elected c;fficials receiving tariefirags on the project since 2>:fJ7. In addition, Consensus Inc. conducts extensive outreach throughout Southern California to inform stakeholders about bath the local.. ?rojer~t corridor anti statewide sy°sterro. Hy targeting comn7ura;ty- centric events, Consensus lnc. has engaged more than ~t,tlf?Ct sfakeholders ir=E conversations about tt~e prra~ect sin~,e ~t~~7 and, as s~ result, signed up more than StJ~ indlviduxis to the project's mailing (ist and collect~;cf~rraore i°a°an 5tl video te5tirncan;girls about'he project. The sur;cessful media relations strategy crafted by Consensus lnc. resulted in an abundant;e of stories in print, tetevisi€~n, radio: ~~nd online rt~edittnas - including a front-page graphic and subsequent Page 3 texture story by the Jrange County register. 1 he California FCigh-Speed nail system is also a popular topic in the blogosphere. which Consensus inn:, rnonitcrs ~~~eekty. along Lwifh such social mediums as l~acehocrk, Pu9ySlaaUe, and Twitter. 25G-10 _ ~1 I~c~t~tlc tr€vc~la~enaent t~'roe~rarn fc€r fhe ,Ar€at€een€ Fixed-~tlideway 7'r~€nsit ~;ur~'idor Study, Lacat Sft~~dy and ,~naheir€~ '7ransiP ~~faster {~i'!!J Consensus Irc. is c;urrerltly engaged as the outreach sub-consultar•:.t tivith the PEAS&J technical tears for the Anaheim Fixed-Guides~vay Transit Corridpr Study. As part of the ~o LtacK.l Progrars, the City of Anaheirra was selecteft by iMe grange County Transporkation Au#hority i4C~C'T`A} to advance the study of a frxed-guideway systems #hrough the environmental study process and to complete r.,onr..eptual engineering and design far the prt~jert. ~rhe Anaheim F'ixed- ~uideway project is envisioned to operate as a high-capacl#y system, providing convenient and efticien# Transfers to ~y'tetrolink, Amtrak, bus Rapid Transit ~BRT), local bus, and future high-speed twain services r;onnecting at ARTIC. This connection vril! link C7range Counhy's '"backbone" Pie#rolink commuter rail sys#em fv the City of Anaheim's major employnaen# and activity centers in the Platinum Triangle and The Anaheim Resort Consensus Inc. is charged s+vith leading the outreach efforts on behalf of the city. The puBlic outreach strategy is designed to educate stakeholders, elected officials, and ether target audiences and ensure maximum public input throughout the study. t7utreaoh activities inctude implementing public workshops and open houses at kev pr~jec:# rrailestones, including early s~coping, scoping and the release cnf the f~rafi ~nviranmental impact Report {pE1R)IQra#t Environenta3 Impact Ste#ement i;DFIS}. In addition, Consensus tnc. is er:.gaq€ng s#akeholders Irs the er7viron?~nental process by conducting irforr>~atirnas= briefrngs and presentations to key comrnunitj%graups. Cvnsenst;s inc. developed comprehensive put:,ltc information materials for the proem, including projecf fact sheet, web site, e-mail blasts and newsletter to better inform the public about the prc€jert's Purpose and 1Veed, alternatives under consideration and key project milestones. Alf outreach performed c#t€rinct the Public I€?valvemen# Prat~rarti is designed to comply with all EII=? DES rerauiren~enis. includ>ng environmental justice outreach, Cc>nsens~;~_~ Inr.. uses also iavoived sn Phase t of the project, which inclu >~i _ :~r~•enfiing a targeted public involvement program to devAt«p a "frar~sit dvtastc;r Plars In affilatiart with C7CTA's Go Lc€c:al I 25G-11 ~onsensuslnc. Irteru+.t. tnrEn,~,;ti, lrr~lir~rce~. Prograrrr, The Transit rv9aster Plan strived to mee# the City's current and futs~re mobility neeris, with ~,ar~sidera#ioi, fc~r ho~~~ commuters, including residents, workers, and visitors travel - tia~hile simultaneously exploring new modes of #ransperta#ion fhat ;gill enhance their ability To get places safely and efficiency. fey outreach activities in Phase 'i included: identifying and briefing key Anaheim business leaders, fdrmulating the strategy and implementats'on of an open house, and developing and facilitating t'wo key Stakeholder "Workshops ~,vhich brought important business and community leaders to tho table to discuss their vision for Transit wrthln the city and solEcrted them feedback an the ~nit~al transrt concepts. fJutreach ~~aas also conducted at both Metrolink train statirans, resulting in more than 74th surveys being distributed and h~3ndreds of people engaged and educated on the Transit fvtaster Plan. Tfae survey results were used to help determine the preferences .and needs of riders and :vii! contribute to the alternative development for the Go Loral Program. to addition, Consensus Inc. worked in collaboration with the City's puts#ic information office #o develop wsb appropriate; information on the study, complete uvith an interactive online survey for interested staketOO€ders. Awarer:.ess cf This option r~ras also publicized through the development and distribution of a press re=ease to both 'the C3range County Kegis#er and the t~va local community newspapers. Tetlra Tech, Ir~c. _ The Boulevards of South Bay (Former Cal Con?pacd Laridfrll): Carson, CA Community Relafians Etfarts for Sifs F7estoretitrn of Former Cal Compacf Lanc+~Jt Consensus Inc. was engaged in early 26©8 to conduct community relations for si#e restoration cf The 8culevards at South Say, a t.57- acre proposed mixed-use development in Carson, CA. 8ehveen tg~g and 1565 the property was a mt;nicipal landfill site, and in recent years elevated levels of chemicals of concern were found in I the landfill and yraundwater. The ss#e is dc~cated between the i-;;05 and a residential co~nrrunity Chat consists of three moh~le esta#e parks and numerous single-#amily homes. 25G-12 Tetra Tech. Ina. led site remediation activities to restore the site. contain the haste: and prepare for development. These actrv€tes incl~~ded initial r~radinc~ of the farmer landfill area folkowed by campactir~n of the landfill waste using a technology known as deep Dyr7atr,ic; Cr;~mpractian {C7DC}. DDC is tk;e process of carr~paating soil ~snd underlying waste by dropping a heavy v~~eight from a rig. "t"he implementation of DDC for this project is the most extensive use of this technology ir= the Soutt7ern Catifarnia region, Additional activities included construction of an engineered landfill cap of it>w linear density polyethylene ~~{ELOPE), instaltation of a landfill gas collection .and treatment system. installation of a groundwater collection anti treatment s~~sterr3, monitoring of the ground water, and installation of a building prcateetion system under each occupied building. Since begi:=3ning work early last year, Consensus tnc_ has employed a variety of techniques to convey technical information to the community and reduce anxiety surrounding site remediation activities. A prajPct manager from Consensus knc. staffs an on-sl#e ccammunity relations office and manitt~rs the project information line to address issues and questions from kocal residents and stakeholders. The project information lirye allows Consensus lnc, to tmm~;drately respond to concerns and report teem to t%e on-site teCklrllt;al tean"t. Concerns relayed through the project information line help Tetra Tech, Inc. id€:ntifiy an+~ rectify potential issues before they escalate to regulatory agencies. During the seven-month duration of DDC ac#ivities. Consensus Inc. received calls from adjacent residents voicing concerns regarding vibration Levels, Conse: seas (r'==.c_ worked collaborativel'ywlth the on-site keam and the DISC to immediately respond to resident concerns by conducting home visits and. at times, installing vibration monitorrng equipment to ensure vbratron levels ~~•ere compliant with the regulatory standards. Although vibr<~tion levels did nr~t surpass approved standards, adjustments were occasionally made in response to the community's calls to lessen the inconvenience crested by the. residual vibration levels. Consensus Ir?c, has worked closely with the DISC, the City, anti eiecisior~i-rrtakers to ensure regulatory standards and public pa~tif.;ipation requirements are met and stakeholders concerns are addressed. Consensus Inc. aontinr~es to play an integral role in 25G-13 _ ~t~~~'~1SUS~1C, t~ e t-,~-.'r.~< tF,e . =;r? ,r~:;rerfrent by it ~ ~.,a t : - to?, r ::l :4 >~?sr;g rln4: ciis5~rrF3nating tr?~ rect;.~~r~>d's~' ~.:t;-, ? , t~:~,=r,rrai~r~lrr I,~t~ .rate fv9tYetlttyS. Staffi Bi~grap~~hi~~ Jennifer ~.abrado. dice 're~l~enf ~Q ~ ~ ~s vsce presiden+ tr.- , ~ is~ge sooty, ~3ennifer . ` t'. ~ Labrado bangs ar: ~r- ,€:r.'t tssue~~, pc~llths Arad ~r £i'3r1'lr3°7unltl@~ t(3 C}G4 r .~~rEaaS StratE (~`kC canamunicatlon arc ~ ",z,r ~e~y Cansensus I,ac. clients while leadln^' n€ ^:~~1~ business opportinitiec Ira C'rrange Cflunty .3en speclalize~s _r ~ -i=ns of infrastructure ^yrL7]eCts 9^ wiu£ ' I `r~iri, traia~,t-,Urtati~an t(J aiternatave er?~'e!~y SL~;r7t~' 'C. C0tT7rilLr ~'_,tf(~rl t ' > bne, ~ iz.f ,.;t ~r ~ derstandabte anu ' E~'want t?'i `t ~~9itPi meare than , h<3s wt;rked Ir= the (,riuate; riart.~rc>i,t ~r:c f ashy nxavigatr-~s from o'.~mrraurtlty ~.er~t~.;:, t: Jen Is a graduate s;t t ;~;t;~~tnizec3, t~;c~ra Fi3~n~atlran's Eeltowc Pror~ras~ tr= ;r; reteiveri her f3achetorofARs ira Amer?o~sn Studies' ; r' ttt~._,~ ~~I•~ ~f (;~3liforsala at Davis. She h©1ds rrernbershp Ir€ ni . „ . lonaf organizations, and her work has beer recczc,n,rf>ti t 'Ji t:e l.c~s Angeles ara~! Orange County chapters of the F~:arflc _ z: ~~ocfety of America (PRSA). J E Michelle Sinning, Seniar Account Manger used in the twine z:at~~lr;t -~,.i.~: pubirc relations anr~ outreach programs fra= tra~~.~„ =fate development; ti~ economic deve(ope;~t ' _ she has ~rtcnslt~e E', i~tlEq rl E:nCt' Ir'P i7(jv E'rt~::lrt<< rV kin£; ~t)r fir?".'€€,~ ir? ~ : t~)i£~u ar?d tr~r~ ar ,t~~,r, ~ -'t5 ir~r ~~t?ents ira the • ~ {~.;s:.sr=JZ,ti<~r7,r8816SI-~it`..lnr~it~.,if~~.i`v°'-~! i'iii3tiYrieS,.~at~t(3hE-i`. r : ~ , 4 25G-14 , expertise in crisis and reputation management. providing strategic counsel on sail and groundwater cantarnination and sensitive health care industry issues. Michele has wri#ten feature stories for The San C?ie~a Dail} Transcript, San Mega Ei~~sirsess Jcrumat, California Real E ,Mate Journal, V'1'es#ern Real Estate News. Business Facilities and t~,1.~ltifamily Executive. She is a graduate of the University of VWiscr~nsin. Stevens Paint, with a):3S in Communication {'with cancentraticrns rr pu#~llc relations and journa?3sm). She is an ac~creditecl member of the Publir, Reiatians Se~ciety of America. .a. s e _ g ~ ~r* (aeortfe 1W ~ n.;s ~xter ~it,N experience n rammunicatians strategies far water. paver, and air quality issues and has managed - catr~municaUans for land use and transportation programs ~ ~ - throughr~ut Sauthern California. George's trilingual and bicultural knawledge is invata~ahle far interactian ?n•ith iraditianally hard to reach ' cammtanities and for facilitating understanding of complex legislative ' issues. George has served as press deputy to Cauncilmember Jose 4' Huizar, Distract 1~3 ?n the City of Las Angeles as Census 20{~{~ Coard€natcar far the Clty of Santa Ana, and as Acaderni~, Coordinator far the State of Californoa Stuttent Opportunity and Access Program. Me received his MA in Public Policy franc Claremont Gr<~duate Unlvers=ty and his ~A in Political Science from Calitornsa Sta#e University at Fullerton. George is fluent in Span::sh. 25G-15 AGREEMENT FOR PROVISION OF PUBLIC OUTREACH SERVICES THIS AGREEMENT, made and entered into this 4th day of January, 2010 by and between Consensus, Inc., a California corporation (hereinafter "Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of public outreach, to update the public regarding Santa Ana's proposed development of a Fixed Guideway System. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform public outreach services to gain community understanding and solicit community feedback regarding the proposed Fixed Guideway System. Among other things, the public outreach campaign will communicate anticipated community benefits, potential community impacts, and possible economic development opportunities associated with the Santa Ana Fixed Guideway project (Exhibitl). 2. DELIVERY OF WORK PRODUCT -OWNERSHIP Consultant warrants and represents that it has the absolute right to enter into and perform this Agreement and will perform its obligations hereunder in accordance with standards and practices prevailing in the industry. Consultant's contribution to the Project, including works to be produced by Consultant hereunder, will not infringe or misappropriate the proprietary or personal rights of any third person or party. Consultant shall deliver to City any work product which results from the services provided. Said work product shall be submitted in hard copy and produced in a form compatible with City's information systems, as agreed between the Project Manager and Consultant. EXHIBIT C 25~-16 In regard to all material produced as a deliverable under this Agreement, including but not limited to records, papers, drawings, specifications, programs, systems and other materials prepared by Consultant, Consultant agrees, for itself and its affected officers, employees, agents, contractors, and volunteer workers, that (a) other such material shall be the property of the City, and may not be copyrighted without prior review from the City, and (b) the authors of all such material, whether copyrighted or not, award to the City, and to its officers, agents and employees acting within the scope of their official duties, as a condition of payment to the Consultant, a royalty-free, nonexclusive, irrevocable license throughout the world for governmental purposes to disclose, publish, translate, reproduce, and use such materials. 3. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit 2. The total sum to be expended under this Agreement shall not exceed $50,000 during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. City shall retain ten percent (10%) of the contract price for each project until the completed Project has been accepted by City. 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. TERM This Agreement shall commence on the date first written above and terminate on December 31, 2010, unless terminated earlier in accordance with Section 13, below. The term of this Agreement maybe extended by a writing executed by the Executive Director of Public Works and the City Attorney. 5. INDEPENDENT CONTRACTOR I Consultant shall, during the entire term of this Agreement, be construed to be an ' independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: 2 25G-17 a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 combined single limit. 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, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. e. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 7. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims 3 25G-18 for personal injury, including health, and claims for property damage, which may arise from the negligence, recklessness or willful misconduct of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the negligence, recklessness or willful misconduct of Consultant arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 8. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 9. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 10. NOTICE , Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by facsimile or other telegraphic communication in the mariner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 4 25G-19 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 facsimile (714) 647-6956 With courtesy copies to: Public Works Agency -Transportation Engineering Div. City of Santa Ana 20 Civic Center Plaza (M-43) P.O. Box 1988 Santa Ana, California 92702 facsimile (714) 647-5616 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 facsimile (714) 647-6515 To Consultant: Consensus Inc. 66 Wilshire Boulevard, Suite 100 Los Angeles, California 90017 Facsimile (213) 438-1764 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by facsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 5 25G-20 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 13. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. However, any use of unfinished work product shall be at City's sole risk. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 14. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 15. JURISDICTION -VENUE This Agreement and all questions relating to its validity, interpretation, performance, and 'enforcement shall be government 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. 6 25G-21 16. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 17. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the 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. Captions and headings in this Agreement, including the title of this Agreement, are for convenience only and are not to be considered in construing this Agreement. c. 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. CITY OF SANTA ANA ATTEST: MARIA D. HUIZAR DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney CONSENSUS, INC. By: Laura Sheedy Assistant City Attorney JENNIFER LABRADO Vice President Tax ID# 7 25G-22 EXHIBIT 1 SANTA ANA FIXED TRANSIT PROGRAM PUBLIC OUTREACH I. INTRODUCTION The public outreach program shall communicate fixed guideway study information to the public in order to gain community understanding and solicit community feedback. Among other things, the public outreach campaign should clearly communicate anticipated community benefits, potential community impacts, and possible economic development opportunities associated with the Santa Ana Fixed Guideway project. II. PROJECT BACKGROUND The Santa Ana Fixed Guideway Project will serve as local connector to regional and national rail, bus, and airport transportation services provided at the Santa Ana Regional Transportation Center (SARTC). It will also serve as a local circulator in the downtown/government center area, the Station District and several other Santa Ana neighborhoods. The desired attributes of the Santa Ana Fixed Guideway system are: 1. Stimulate land development and economic activity 2. Integrate well with the surrounding community 3. Provide connectivity between regional rail and bus services at SARTC and major destinations 4. Ensure that passenger safety and security are adequately addressed 5. Use clean energy 6. Be attractive, comfortable, friendly, accessible and easy to maintain 7. Integrate well with bicycle and pedestrian activity 8. Provide acost-effective system 9. Meet future mobility needs 10. Maximize use of existing right-of-way 11. Engage with business and activity centers along the line 12. Minimize construction impacts III. SCOPE OF WORK Task 1 -Develop messaging which effectively communicates the linkages among: • Santa Ana Fixed Guideway Project • SARTC Master Plan • Santa Ana Boulevard grade separation • Station District • New Transit Zoning Code Task 2 Prepare "canned" presentation for City leaders and staff to share with • Neighborhoods • Business and professional groups • Stakeholders 8 25G-23 Task 3 -Provide support for community meetings includinq• • Meeting facilitation • Preparation of meeting notices and agendas • Review and refinement of presentation materials • Preparation and distribution of meeting summaries with action items Task 4 -Attend technical team meetings as reguested• • Bi-weekly Fixed Guideway Project status meetings • Monthly Fixed Guideway Project Development Team meetings • Station District team meetings • Other meetings to be determined Task 5 -Provide timely written updates to Santa Ana's• • Public Works Agency • Community Development Agency • Planning and Building Agency • Others, as requested Task 6 -Assist with CEQA/NEPA public meetings includinq• • Scoping meeting(s) • Public hearing(s) While carrying out each of the above activities, the Consultant shall gain prior approval from the Fixed Guideway project manager and/or transit program manager for all materials to be presented and distributed to the public In addition, the Consultant shall create and maintain a meeting environment that: • Stimulates discussion • Encourages everyone to express an opinion • Discourages personal attacks • Prevents any individual or group from dominating the meeting Finally, the Consultant shall present immediate feedback to the Fixed Guideway project manager and/or Transit program manager when highly controversial issues arise or negatively charged meetings occur. IV. GENERAL REQUIREMENTS A. The Consultant shall carry out the instructions received from the City of Santa Ana and shall cooperate with the City and other involved agencies. B. The documents furnished under the Agreement shall be of a quality acceptable to the City of Santa Ana. The criteria for acceptance shall be a product of neat appearance, well organized, technically and grammatically correct, checked, and dated and having the maker and checker identified. The minimum standard of appearance, organization and content of the documents shall be that of similar types produced by the City and set forth in related City of Santa Ana and other involved agencies' manuals. The Consultant shall modify its work as necessary to meet the level of acceptability defined by the criteria above. C. The Consultant's work will be subject to inspections by representatives of the City of Santa Ana and other involved agencies. 9 25G-24 V. ESTABLISHING OF FEES The fee proposal shall include anot-to-exceed $50,000 fee and a detailed labor hour breakdown by task and classifications. Include all incidental costs estimated to accrue during the life of the contract. Include a billing rate schedule for the prime consultant and any subconsultants with an hourly billing rate by classification. As this will be a multi-year project, include billing rates for the current year as well as subsequent calendar years covering the duration of the project. VI. PRIME CONSULTANT RESPONSIBILITIES The selected consultant will be required to assume responsibilities for all services offered in his/her proposal. The selected consultant will be the sole point of contact with regard to contractual matters, including payment of any and all charges resulting from the contract. VII. DELAYS The City reserves the right to delay scheduled dates if it is to the advantage of the City of Santa Ana. VIII. PROJECT CONTROL Control of the project shall remain the total responsibility of City of Santa Ana. 10 25G-25 Consensus I nteract. I n novate. 1 nfl u ence. DRAFT SCOPE OF WORK CITY OF SANTA ANA STRATEGIC COMMUNICATIONS AND OUTREACH SERVICES TIMING:.JANUARY -MARCH, 2010 Submitted: December 11, 2009 Revised: December 28, 2009 INTRODUCTION Consensus Inc. is pleased to prepare this scope of work for the City of Santa Ana for strategic communications and outreach services for the Santa Ana station district, fixed-guideway and 48-parcel redevelopment projects. Since 1986, Consensus has successfully engaged the public, building grassroots community support for complex projects in the transportation, environmental, public facilities and real estate industries. Our communication programs are strategically designed to allow for wide participation while reducing conflict and confusion. Given the history of contention with some elements of this combined project, it's even more important to design an effort that: • Communicates proactively with stakeholders the project's objectives, purpose and need, alternatives and the importance of public participation • Engages abroad-based group of stakeholders in the process, including communities that have been historically disengaged due to language or cultural barriers • Solicits usable feedback from stakeholders that results in an understanding of where there is support and opposition for certain alternatives and elements under evaluation and what types of measures might be implemented to mitigate concerns • Implements a legally defensible public involvement program that meets the guidelines set out by the California Environmental Quality Act/National Environmental Policy Act This initial proposal encompasses athree-month effort to establish a comprehensive branding and communications infrastructure designed to properly position the project in the public's eye -promoting a greater understanding of the overall redevelopment goals of the City and the current efforts underway. Attention will be paid to crafting visuals and messages that resonate with the public, increasing the effectiveness of the City's communications effort while meeting public involvement program goals. A media relations component will help strengthen the credibility of the City and project developers, promoting an interest in a cooperative and open relationship with the press and the public it serves. Following is a list of activities proposed for this initial effort: Project Brand !i Consensus will, in concert with the City of Santa Ana, design a logo and visual identity for the project. This visual identity will be communicated across all printed documents, including newsletters, fact sheets, scoping and presentation materials, and to the extent possible, the project Web site. If appropriate, a tagline will be developed to help strengthen the public's understanding of the project and its brand qualities. Brand Research Consensus will conduct an informal focus group or five to seven key stakeholder interviews to solicit information helpful for shaping the project's brand. It's important to hear directly from stakeholders their concerns and impressions from previous redevelopment efforts, and solicit initial feedback on a shortlist of concepts. If possible, we will engage stakeholders in community meetings or workshops scheduled for other purposes in order to conserve budget. !_~o~7s ncur Irlc. I?744 Sr:y~~=vx Grcle, Suite IBC Irwne CA 926?4 9<?9 252.1~E`~ , ~nv~~ consensusinc Cnill E~~~26 Develop Themes and Messages In conjunction with the City of Santa Ana, Consensus will develop themes and messages that will shape all communications with identified audiences. The messages will highlight the long term economic, transportation and cultural benefits of the project. Messages will be refined throughout the project in response to emerging community issues and project milestones. Stakeholder Database Consensus Inc. will develop the initial database of key community and business organizations and leaders. The database will include elected officials, neighborhood associations, local organizations and institutions, community centers, schools, and employment centers. The database will be used to communicate with stakeholders for the life of the project and will be carefully categorized to allow for tailored communications to specific stakeholder groups. Project Hotline An "800" telephone hotline number will be set up for the project. The recorded message will direct callers to various options such as asking a question, leaving a comment, more information about the public hearings or being added to the mailing list. All communications will be logged and those voicemail messages indicating support for the project will be saved electronically as audio files, and used to demonstrate support to decision- makers. Project E-mail An a-mail account will be established and managed by Consensus Inc. The a-mails received will be logged and summarized before being forwarded to the City of Santa Ana on a weekly basis. If there are any a-mails received that require special attention, they will be forwarded immediately. Project Fact Sheet Consensus will develop a bilingual (English/Spanish), graphically pleasing fact sheet that showcases the City's vision of the transportation, economic development, and regional interconnectivity as a result of the project. The fact sheet will include a support card that can be used to add project supporters and others to the project communications database. Web site Consensus will provide recommendations to the City of Santa Ana for creating a standalone project Web site to properly highlight the project brand and messaging. The site will include interactive components that can further engage potential supporters and stakeholders. A section for people to sign up to receive project updates will be added. The Web site will be a virtual home to all public documents, including the fact sheet, frequently asked questions, newsletter and public meeting documents. Newsletter Consensus will work with the City of Santa Ana to develop afull-color newsletter that will be mailed to the project database and also distributed at the scoping meetings. The newsletter would include more thorough background information on the project and all of its components, giving a clear picture of the City's current planning efforts and the benefits to the public for such a comprehensive effort. i Team Meetings Consensus will coordinate with the project team, participate in team meetings and strategy discussions in person or on conference calls, prepare for milestones, and report on communications and outreach matters. Consensus has included in this scope of work attendance at one monthly project development team (PDT) meeting from January through March, and two bi-weekly technical team meetings every other Wednesday during the month of January. Consensus has also planned for three additional team meetings on such topics as station design. 25G-27 Community Meetings /Community Presentations Consensus is prepared to assist the City of Santa Ana in staffing and providing logistical support for the two project communitywide meetings that will serve as listening sessions, allowing stakeholders the opportunity to listen to and provide feedback on project. Consensus recommends that two communitywide meetings be held as well as one business community specific meeting. Scoping Meeting Consensus will assist the City of Santa Ana is staffing the CEQA/NEPA required scoping meetings for the project. Consensus Inc. will develop and send meeting notices, advertise the meeting through local newspapers (Orange County Register, Miniondas, Excelsior), create materials (welcome/agenda, comment sheets, speaker cards, etc.), and then set up and help facilitate meetings. Public Notices Consensus Inc. will prepare and mail meeting/scoping/public hearing notices that will then be mailed to community stakeholders, as well as draft legal and reminder advertisements to notice each meeting in newspapers. Consensus Inc. will mail the Notice of Preparation/Notice of Availability to responsible public agencies for their review and comments. PROPOSED BUDGET Consensus has outlined a detailed budget for the enclosed scope of work. Thank you for your consideration, and we took forward to the prospect of working with you on this exciting project. Strategic Communications and Outreach Services • Team meetings $7,025 o Monthly PDT (Jan. -March) o Technical team (two) o Up to three other team meetings • Public meetings/open houses $5,425 o Two Station District/Fixed Guideway open houses o One fixed-guideway meeting for the business community o One fixed-guideway meeting for the general public • Brand development $3,545 o Logo, tagline, visual identity package o Includes one team meeting • Brand research $3,500 o Focus group of key stakeholders or 5-7 stakeholder interviews • Project Hotline, E-mail Account $765 • Stakeholder Database $2,000 • Fact Sheet $1,910 • Newsletter $5,585 • Web site $2,700 o Includes two meetings with Consensus Account Manager • Messaging $1,040 • Public relations $6,000 o Press releases (two), op/ed (one), o Media relations o Reputation management consulting • Scoping meetings $2,010 o Two scoping meetings -March/April o Budget includes guidance and attendance/assist with facilitation • Scoping materials $815 o Sign-in sheets, name badges, comment cards, directional signs o Input on board development 25G-28 • Scoping notice $2,280 o Including translation Consensus Subtotal: $44, 600 Graphic Design/Web • Branding $1,500 • Fact sheet $500 • Board template $200 • Newsletter $1,200 • Web design $1,000 • Web programming $1,000 o Budget includes making site ADA compliant if required Graphics Subtotal: $5,400 Grand Total: $50,000 25G-29 25G-30 REQUEST FOR COUNCIL ACTION ~ CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED ? As Recommended MODIFICATION TO CONDITIONAL USE PERMIT ? As Amended NO . 2 0 0 6 - 21 AND VARIANCE NO . 2 0 0 9 - 0 4 TO ? Ordinance on 15f Reading ALLOW AN INCREASE IN HEIGHT FOR A ? Ordinance on 2"d Reading ? Implementing Resolution SECOND CARRIER ON AN EXISTING 60 -FOOT ? Set Public Hearing For HIGH FACILITY AT 2649% WEST FIRST STREET - SEQUOIA DEPLOYMENT SERVICES, I APPLICANT _ CONTINUED TO ~ ~ a~--•"~, ~ uJ~~ ~:.t,-<~---. FILE NUMBER CITY MANAGER RECOMMENDED ACTION Receive and file the staff report approving modification to Conditional Use Permit No. 2006-021 as conditioned and Variance No. 2009-04 as conditioned. PLANNING COMMISSION ACTION On December 14, 2009, the Planning Commission adopted a resolution approving modification to Conditional Use Permit No. 2006-21 as conditioned and adopted a resolution approving Variance No. 2009-04 as conditioned by a vote of 6:0 to allow an increase in height for a second carrier on an existing 60-foot high facility at 2649% West First Street in the Light Industrial (M-1) zoning district. The Planning Commission made no changes to the recommended conditions of approval outlined in the attached staff report (Exhibit A). FISCAL IMPACT There is no fiscal impact associated with this action. Ja M. Trevino G~--E cutive Director u Planning & Building Agency LDY:rb ldy\reports\CUPs 2009\cup06-21va09-04 AT&T 2649 W First.cc 31 A-1 REQUEST FOR s Planning Commission Action ~k PLANNING COMMISSION MEETING DATE: PLANNING COMMISSION SECRETARY DECEMBER 14, 2009 APPROVED TITLE: ? As Recommended PUBLIC HEARING - FILED BY SEQUOIA ? As Amended DEPLOYMENT SERVICES TO MODIFY ? Set Public Hearing For CONDITIONAL USE PERMIT NO. 2006-21 DENIED AND VARIANCE NO. 2009-04 TO ALLOW AN ? Applicant's Request INCREASE IN HEIGHT FOR A SECOND CARRIER ? Staff Recommendation ON AN EXISTING 60-FOOT HIGH FACILITY AT 2649 WEST FIRST STREET CONTINUED TO Prepared by Larry D. Yenglin Executive Director Planning anager RECOMMENDED ACTION 1. Adopt a resolution approving modification to Conditional Use Permit No. 2006-21 as conditioned. 2. Adopt a resolution approving Variance No. 2009-04 as conditioned. DISCUSSION Request of Applicant Sequoia Deployment Services, representing AT&T, is requesting approval of a variance to increase the height of an existing 60-foot high cellular antenna to 63 feet and a conditional use permit to allow the co-location of a second carrier on an existing monopine at 26493 West First Street. Property Description The property is located within the Light Industrial (M-1) zoning district and has a General Plan land use designation of Industrial (IND) (Exhibit 1). The property is bounded by commercial and industrial uses to the north, commercial uses to the west, and commercial and industrial uses to the east. There are duplex units in a planned residential development and a retail use to the south (Exhibit 2). The subject property is owned by Devinder Pal Sarin, doing business as Mel-o-dee Ice Cream, and is approximately 1.29 acres in size, rectangular in shape and improved with various industrial buildings. EXHIBIT A 31 A-2 Modification to CUP No. 2006-21 Variance No. 2009-04 December 14, 2009 Page 2 Project Description AT&T is proposing to increase the height of an existing monopine by three feet for a total of 63 feet to provide increased cellular coverage and call capacity in this area. The existing monopine will be modified accordingly to ensure that the facility adequately stealths the antennas for both carriers. The branches will reach a height of 70 feet to look like a natural tree. AT&T will be the second carrier on this monopine, with T-Mobile currently on the monopine. Additional equipment will be installed in an enlarged equipment enclosure at the base of the tree (Exhibits 3 and 4). The proposed wireless facility will include nine panel antennas, new equipment cabinets and two GPS antennas at ground level, all of which will be camouflaged as a Canary Island Pine Tree or be located within the base enclosure. The monopine and equipment cabinets will continue to be enclosed by an eight-foot high wrought iron fence that will incorporate new shrubs and vines to assist in screening the equipment. Two Canary Island Pines were planted as a condition of the original CUP and will remain on the site (Exhibit 5). The leased site is behind an auto repair business and located approximately 120 feet north of First Street. Analysis of the Issues In July 1998, the City Council adopted an ordinance that regulates Wireless Communication Facilities throughout the City. Major wireless facilities are required to have a stealth design and be located on a building or in an area that provides the greatest amount of visual screening and requires the approval of a conditional use permit. Due to compliance with the approved development standards, Conditional Use Permit No. 2006-21 was approved by the Planning Commission in 2006 to allow a 60- foot high monopine at this location. The applicant is proposing to modify the existing conditional use permit and obtain a variance from the height standards to allow an additional carrier on the existing facility at a height of 63 feet. The proposed three-foot increase in the height of the monopole is due to the minimum separation requirements between carrier antennas to avoid cellular interference. The existing T-Mobile antennas will be raised to the 63 foot height and the new AT&T antennas will be placed at approximately 53 feet in height. This will ensure that both carriers provide the necessary coverage and call capacity for their subscribers. An alternative to the proposal would be to permit an additional monopole in this area to provide 31 A-3 Modification to CUP No. 2006-21 Variance No. 2009-04 December 14, 2009 Page 3 the necessary coverage and capacity. However, the locational criteria for wireless facilities encourage the collocation of wireless providers as the primary siting option. The applicant has also explored the potential to locate the cellular antenna on the roof of an existing building in the area. Structures in the area, however, are not tall enough to meet the coverage needs of AT&T. The proposed facility will provide a benefit to Santa Ana residents, businesses and motorists who subscribe to AT&T by providing additional calling capacity and reduce any gaps in service. The proposed facility is located within the interior of the site and will incorporate additional shrubs and vines to screen the existing and new equipment cabinets. Adequate screening is provided for the wireless facility and it is buffered by industrial buildings along First Street. Further, all wiring and conduit will be underground or hidden within the interior of the monopole. The proposed wireless facility will comply with all other provisions of the Wireless Communications Facility Ordinance and will provide needed service to the central section of the City. Based upon the above analysis and findings, staff recommends that the Planning Commission approve modifications to Conditional Use Permit No. 2006-21 and Variance No. 2009-04 as conditioned. CEQA Compliance This project was reviewed in accordance with the Guidelines for the California Environmental Quality Act. The recommendation is exempt from further review pursuant to Section 15303. This Class 3 exemption allows in-fill developments for the construction and location of limited numbers of new, small facilities or structures. Categorical Exemption Environmental Review No. 2009-78 will be filed for this project. r n T ~ L rry D. 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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 _ CUP 06-21, VA 09-4 T MOBILE MONOPINE ~ 2649 3/4 WEST FIRST STREET - - = 500 FEET ~ 1" = 1000 FEET 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 .S ~ I ~B~ 1 0 w U W U R V S T O R A G E ~ W ¢ W 2 ~ C ~ OFFICE ~ N ~ H BUILDING J N OFFICE C7 OFFICE MEAT COMPANY LIGHT INDUSTRIAL Z ~ LIGHT ~y~/ SALVATION 9 APARTMENT ~ ? 3 ARMY UNITS INDUSTRIAL J Q OFFICE & OFFICES BUILDING l1J J PRINTING PROJECT SITE N COMPANY CLINIC FIRST STREET GAS GAS AUTO A P A R T M E N T S STATION STATION REPAIR CUP 06-21, VA 09-4 T MOBILE MONOPINE ...w.. 2649 3/4 WEST FIRST STREET P L A N N I N G A N D B U I L D I N G A G E N C Y LAND USE MAP 3 ~X~iI~T 2 i T a M ~ ~ ~ ~ ~ ~ X 1 1 I •o-~ iI .6-Lfli ,o-Atli 1 I a4 ~ I I ~ ~ 1 f g~ I I N a~4~e3 ~ I C I ~ ~ ~ ~~p~ II_ I i t ,9-.9I I i I 3N~f1y Alk3dOW ~ J I ~ _ _ x 1 ' ~ ~a ~R MR~R~~~ I ~~.r° I ~ ~ 9 g I L•-----°•__~--'-.----1 658E Y4$ ; - ~ ~ 's i ~ ' I ~ ~ ~ ~ I ~ ~ 1 a ~ r ~ ~s~ g ~ ~ ~ ~ ~a~ j ~ ~ I ~~g ~ ~ 1 1 1 I Q I i g Q~ ~'I ~ ~y ~ ~ 1 J !r ~ I 1 O F ~ I ~ U ~ w I 00 I I j 0 ~i 1--- ----~-----~-1 1 _ - - _ - _ - 31111 AIL3dOtld I W w~ G 1 ~ T I 1 V 1 I 1 WI ~I n8 ~1 I I oq° I ~ I Ewa ~1Q I ~ I / 1 z o j, ~ w I - inn aur3doaa ~ ~ w ~~g ---3---- yaax.~,s xaua~v~ ~x H,[y Z 4y d L+J I H i N i AMQENDMENT TO ,31H039 210 ALIlI80W lily i0 NOISSIW213d N3llItlM 3H1 H11M 1d30%3 W210i ANV NI 0350 b0 03J00021d321 ClJ• 06-21NA 09-~ 38 AVW }~3W0~{l0 SfyL 3=1yy~ON All11BOW lily HLM 1N3W3321`~1' NV L30Nf1 NO11YtlOd210J 131H739 2103 031V3i17 SYM 1N3W0000 SIHt EXHIBIT 3 31 A 7 a ~ o~ .°o a e~~ ~ ~ ~ Ns o~~ ~ ~ ~ ~ S' _ ~ ~$~g ~ Q ~ s G ~ ~t_ ~ rS ~5 ~ V~ tl~ < o v3ev ism ,liiv. ~ pp U < W = C .~-.sus ~ .0-.1 ,o-,l ,cs ,o-,f ,f-,~ ,f-,Y ,f-,h 3NIl AItl3dOtld (3) - - - ~ °P 37N3i NNf1NMIJ (3) 1 j 4~ .1 ~ ~ 9 ~ t` O ~ O I 4i - _ o ~ ~ I 4 ~ a ~ ~ ~Q T ~ 0 ~ I @ yl ~i _ a se 1 ~ 1 4~ ~ ~ a ` ~~i i r ~i, % I .i~ _ -1 u ct I III ~ p~ j i ~ 1~ ~ iw I I I 'I3NV 35V31 ,lily, I 1 Ol yam,,, 1 I 3NRIl'JX3-Npi I i ~ I I 'yT '6( ~ 30N~Z1 I I ra s~ © ~ ~ ~z .o-s .ol-.sl .a-.as ~ ~ ~ ~ ~ aao .o-.zls .a-.a r ~ r ~ N ~ ~ Z U ~ W D w c~ I ~ ~g ~ yIy~ F 8 z `4'~e ~ .o-.cl yy~~ 4 ee ~ ~ y~~ rJ ~ q z w~ N o ~ a nod ~ W~d ~ ~ ~ ~I a ~ ~ ~ ~ z ~ ~ . I ~ ~ a 000 0000 0 0®®®®©®®4® .y a AMENDMENT TO r~ >3 ~ ~ wl-, „3~.d~ ~ , , , , ~ CUP 06-21 NA 09-4 ` EXHIBIT 4 .9 ,ro H $o ~ ~Y ~ ~ ~ ~ ~ ~ ~ L Lam, , ~i ~ Y ~ ~ e ' ~ ~~~d ~ ~ ~ ~~I ~ ~i ~ ~ ' ~ ~ ~ ~ ~j ~ ~I ~ ~ ~ r ~ ~ ~ ~ r ~ ~ ~ C <I y ~ t 52 8 ~ ~i < ~I s ~j ~ ~ .o-.~r ~ 4 .0-Al ,9-,OC ~ ~ ~ 7 ~ _ S .9-.09 Z r' ~ .o-.c .a,ro O ~ ~ .o-.oc ~ W J ~ W ~ ~ r ~ H ~ gx~ N N ® ~ qzq .o-.ou .o-.o~ .a-.os ~ ~0 ~ ~ ~ ` ~ e ~ - ~ 003 w 3 EI ~ ~ ~ ~ -8 ~~J ` ~ use M ~ ~ / _ S iw- ~ ~ ~ w>~ ~ ~ ~ w~QQ =2S ~ ~ ~ s ~ 4 ~ 4 ~ ~ ~ ~ ~ a w ~ .~q W ~ ~ ~ ~ ~ ~ s~~~ ~ J r 'y 'y r'~' ~ ~ s Z ~I ' I~ r ~ r ~ ~y o o ~ o m as~~~ Z ~ s W K~ z ~ a a .o-.oc w AMENDMENT TO » ~ ~ ~ , is 3 . ~ ~ CUP 06-21NA 09-4 ' "~a~>A_~ ' ~w~,.:.. ~a ~ ~ , 3 i,, ,a~,-, ~ . , EXHIBIT 5 bk:12/9/09 RESOLUTION NO. 2009-19 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING A MODIFICATION TO CONDITIONAL USE PERMIT NO. 2006-21 AS CONDITIONED TO ALLOW A SECOND CARRIER ON AN EXISTING CELL TOWER AND VARIANCE NOS. 2000-04 AS CONDITIONED TO ALLOW AN INCREASE IN HEIGHT FOR A SECOND CARRIER FOR THE PROPERTY LOCATED AT 2649 3/4 WEST FIRST STREET BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of a modification to its conditional use permit to operate a cellular tower and a variance to exceed the maximum height for the existing 60' cell tower located at 2649 West First Street. B. Conditional Use Permit No. 2006-21, and Variance Nos. 2009-04 came before the Planning Commission of the City of Santa Ana for a duly noticed public hearing on December 14, 2009. C. Conditional Use Permit No. 2006-21 has been filed with the City of Santa Ana seeking to allow a second carrier on an existing cell tower. Light Industrial (M-1) zoning district. 1. AT&T is proposing to increase the height of an existing monopine by three feet for a total of 63 feet to provide increased cellular coverage and call capacity in this area. The existing monopine will be modified accordingly to ensure that the facility adequately stealths the antennas for both carriers. The branches will reach a height of 70 feet to look like a natural tree. AT&T will be the second carrier on this monopine, with T-Mobile currently on the monopine. Additional equipment will be installed in an enlarged equipment enclosure at the base of the tree. 2. Santa Ana Municipal Code Section 41-638 authorizes the Planning Commission to grant a conditional use permit upon making certain findings. Resolution No. 2009-19 Page 1 of 10 31 A-10 i. Will the proposed use provide a service or facility which will contribute to the general well being of the neighborhood or community? The proposed 63-foot tall cellular monopine will provide a service to Santa Ana residents, businesses and motorists who subscribe to AT&T services by reducing the gaps in digital cellular service and providing additional calling capacity for its users, especially for those users traveling within the central sector of Santa Ana. ii. 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 law exempts local jurisdictions from regulating health related issues as these issues are covered under Federal laws. However, the proposed facility will be in compliance with both the Federal Communications Commission (FCC) and Federal Aviation Administration (FAA) safety regulations. iii. Will the proposed use adversely affect the present economic stability or future economic development of properties surrounding the area? The proposed monopine, in conjunction with the existing landscaping, will be compatible with the surrounding area and will not adversely affect the economic viability in the area. The stealth appearance will be the major solution to maintaining and increasing the economic stability for this industrial area. ~ iv. Will the proposed use comply with the regulations and conditions specified in Chapter 41 for such use? The cellular facility has been designed to comply with the regulations and conditions identified in Chapter 41 of the Santa Ana Municipal Code for a major wireless facility. v. Will the proposed use adversely affect the General Plan or any specific plan of the City? The proposed monopine facility will not adversely affect the General Plan as cellular facilities that are Resolution No. 2009-19 Page 2 of 10 31 A-11 designed to be compatible with the surrounding environment are consistent with the goals and objectives of the Industrial (IND) General Plan designation. D. Variance No. 2009-04 has been filed seeking an increase to 63 feet in height for the monopine. 1. Santa Ana Municipal Code Section 41-638 authorizes the Planning Commission to grant a variance upon making certain findings. i. That because of special circumstances applicable to the subject property, including size, shape, topography, location or surroundings, 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. Special circumstances exist because the subject property already hosts an existing 60-foot monopine and there are no feasible alternative properties that can meet the coverage requirements. In addition, adding a second monopine would require the loss of additional parking spaces on the subject site. The City also encourages co-location of wireless facilities. ii. That the granting of a variance is necessary for the preservation and enjoyment of one or more substantial property rights. This facility will fill an existing coverage gap using the least intrusive means possible. Extending the monopine an additional three feet will result in the least impact on the subject site and the area. It will provide reliable wireless coverage to the citizens and businesses of Santa Ana. iii. That the granting of a variance will not be materially detrimental to the public welfare or injurious to surrounding property. A three-foot extension of the monopine is the less intrusive means of providing needed coverage and capacity for wireless customers. Resolution No. 2009-19 Page 3 of 10 31 A-12 iv. That the granting of a variance will not adversely affect the General Plan of the City. The cellular facility will not adversely affect the general plan of the city and in fact supports the needs of residents and businesses by improving technology used by most everyone. It supports the goal of addressing basic community needs, enhancing the City's economic and fiscal viability and ensuring that the impacts of development are mitigated. E. This project was reviewed in accordance with the Guidelines for the California Environmental Quality Act. The recommendation is exempt from further review pursuant to Section 15303. This Class 3 exemption allows in-fill developments for the construction and location of limited numbers of new, small facilities or structures. Categorical Exemption Environmental Review No. 2009-78 will be filed for this project. Section 2. The Planning Commission after conducting the public hearing hereby approves for the property located at 3531 South Fairview Street: 1. Conditional Use Permit No. 2006-21, as conditioned in Exhibit "A" attached hereto and incorporated herein, to permit the subject property to operate a surface parking lot. 2. Variance No. 2009-04, as conditioned in Exhibit "B" attached hereto and incorporated herein. These decisions are based upon the evidence submitted at the above said hearing, which includes but is not limited to: the Request for Planning Commission Action dated December 14, 2009 and exhibits attached thereto; and the public testimony, all of which are incorporated herein by this reference. ADOPTED this 14th day of December, 2009 by the following vote: AYES: Commissioners: Alderete, Betancourt, Gartner, Leo, Turner, Yrarrazaval (6) ~ NOES: Commissioners: None (0) ABSENT: Commissioners: None (0) ABSTENTIONS: Commissioners: None (0) Resolution No. 2009-19 Page 4 of 10 31 A-13 Christopher Leo Chairman APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Benjamin Kaufman Chief Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Martha Ramirez, Planning Commission Secretary, do hereby attest to and certify the attached Resolution No. 2009-19 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on December 14, 2009. Date: Planning Commission Secretary City of Santa Ana Resolution No. 2009-19 Page 5 of 10 31A-14 Conditions for Approval for Conditional Use Permit No. 2006-20 Conditional Use Permit No. 2006-21 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below 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 the conditional use permit. A. Planning Division 1. The applicant must comply with all conditions and requirements of the Development Review Committee for the development project (~R-AIe~AA6-3 DP No. 2009-30). 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. The proposed monopine shall be constructed as per approved plans and the existing landscaping shall be protected in place during the construction period for the 6A63-foot monopine facility. 4. 5. The proposed monopine shall be constructed per the following specifications: a. The monopine should have 3.1 branches per foot for full density coverage with limited spacing between the branches; 70 percent of the branches should be eight feet or longer. b. Branch disbursement should be random so that longer branches and shorter branches are intermingled to give a natural appearance. EXHIBIT A Resolution No. 2009-19 Page 6 of 10 31 A-15 c. Branches should exceed all antennas by a minimum of 12 inches. d. Branches should start at 15 feet above the ground. e. There should be a minimum space of seven feet between the top of the antenna and the top of the branches. f. Branches should have an upward sweep similar to that of actual Canary Island Pines. g. Branch foliage color should be an olive green with some brown "needles" to match an actual Canary Island Pine. A sample should be submitted for approval prior to fabrication. h. Full bark cladding with a custom color should be submitted for approval prior to fabrication. i. All antennas shall be covered with "pine antenna socks" that match the approved foliage color. j. All "stand-off mounts" and support pipe mounts shall be concealed behind antennas and painted a darker shade or green (or black) with a "flat" paint finish to reduce reflection and visibility of the mounting. k. Include the tree specifications (selected manufacturers and models) with photo simulations (also a site plan review requirement). I. Show the location of the GPS antenna on all elevations. m. Provide a "unistrut" detail for the utility cabinet; an "H-frame" is not acceptable. n. Provide a note on the plans stating "install underground utilities sleeving for two carriers during construction of the structure". Shrouds on the outside of the pole are not acceptable. o. All exterior conduit and electrical meters shall be installed and screened in one metal enclosure painted to match the structure. 6. The permit applicant recognizes that the frequencies used by the cellular facility located at 26493/< West First Street are extremely close to the frequencies used by the City of Santa Ana for Public Safety. This proximity will require extraordinary "comprehensive advanced planning and frequency coordination" engineering measures to prevent interference, especially in the choice of Resolution No. 2009-19 Page 7 of 10 31 A-16 frequencies and radio ancillary hardware. This is encouraged in the "Best Practices Guide" published by the Association of Public-Safety Communications Officials-International, Incorporated (APCO), and as endorsed by the Federal Communications Commission (FCC). Prior to the issuance of any permits to install the facility, (permit applicant) shall meet in good faith to coordinate the use of frequencies and equipment with the Communications Division of the Orange County Sheriff-Coroner Department to minimize, to the greatest extent possible, any interference with the Public Safety 800 MHz Countywide Coordinated Communications System (CCCS). Similar consideration shall be given to any other existing or proposed wireless communications facility that may be located on the subject property. 7. At all times, the permit applicant shall not prevent the City of Santa Ana from having adequate spectrum capacity on the City's 800 MHz radio frequency. 8. Before activating its facility, the permit applicant will submit to apost-installation test to confirm that "advanced planning and frequency coordination" of the facility was successful in not interfering with the City of Santa Ana Public Safety radio equipment. This test will be conducted by the Communications Division of the Orange County Sheriff-Coroner Department or aDivision-approved contractor at the expense of the applicant. This post-installation testing process shall be repeated for every proposed frequency addition and/or change to confirm the intent of the "frequency planning" process has been met. 9. The permit applicant shall provide a 24-hour phone number to which interference problems may be reported. This condition will also apply to all existing facilities in the City of Santa Ana. 10. The permit applicant will provide a "single point of contact" in its Engineering and Maintenance Departments to insure continuity on all interference issues. The name, telephone number, fax number and a-mail address of that person shall be provided to the City's designated representative upon activation of the facility. 11. The permit applicant shall insure that lessee or other user(s) shall comply with the terms and conditions of this permit, and shall be responsible for the failure of any lessee or other users under the control of permit applicant to comply. 12. The permit applicant shall provide a coverage and cell site location map for each existing and proposed facility in Santa Ana. Resolution No. 2009-19 Page 8 of 10 31 A-17 13. Locate all equipment and related appurtenances (appleton plug and electric meter) on the inside of the existing equipment enclosure or inside the building and underground all electrical power from the utility source shown on the approved site plan. 14.This modification to Conditional Use Permit No. 2006-21 expires #i~ve 10 years from the date of City Council approval. Resolution No. 2009-19 Page 9 of 10 31 A-18 Conditions for Approval for Variance No. 2009-04 Variance No. 2009-04 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below rip or to exercising the rights conferred by this 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 the variance. A. Planning Division 1. The applicant must comply with all conditions and requirements of the Development Review Committee for the development project (DP No. 2009-30). 2. Vines are to be planted around the entire wrought iron fence. 3. All antennas are to be completely hidden with the branches and sleeves. 4. 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. 5. The proposed monopine shall be constructed as per approved plans and the existing landscaping shall be protected in place during the construction period for the 63-foot monopine facility. EXHIBIT B Resolution No. 2009-19 Page 10 of 10 31 A-19 31 A-20 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JANUARY 4, 2010 TITLE: APPROVED ? As Recommended MODIFICATIONS TO VARIANCE NO. ? As Amended 2 0 0 4 - 0 9 FOR THE PROOF BAR LOCATED ? Ordinance on 15t Reading AT 215 NORTH BROADWAY - JUSTIN ? Ordinance on 2"d Reading ? Imp?ementing Resolution REUTER AND JOEY MENDES, APPLICANTS ? Set Public Hearing For CONTINUED TO ?~?-`-`~'2 - FILE NUMBER CITY MANAGER RECOMMENDED ACTION Receive and file the staff report approving modifications to Variance No. 2004-09. PLANNING COMMISSION ACTION On December 14, 2009, the Planning Commission adopted a resolution approving modifications to Variance No. 2004-09 allowing a cover charge, serving draft beer, allowing bottle service, advertising or signs indicating the availability of alcohol, expansion into the basement level and allowing the hours of operation from 11:00 a.m. to 2:00 a.m. as conditioned; and adopted a resolution approving modifications to Variance No. 2004-09 pertaining to dancing, and use of the rear door by a vote of 6:0 for the Proof Bar located at 215 North Broadway. The Planning Commission made no changes to the recommended conditions of approval outlined in the attached staff report (Exhibit A) with the exception of Condition No. 24, use of the rear door only for emergencies and deliveries, which was deleted. FISCAL IMPACT There is no fiscal impact associated with this action. J M. Trevino ~ E ecutive Director Planning & Building Agency SK:rb sk\reports\va04-09 Proof Bar mod.cc 31 B-1 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: PLANNING COMMISSION SECRETARY DECEMBER 14, 2009 APPROVED TITLE: ? As Recommended PUBLIC HEARING - MODIFICATIONS TO ? As Amended VARIANCE NO. 2004-09 FOR THE PROOF BAR ? Set Public Hearing For LOCATED AT 215 NORTH BROADWAY, JUSTIN DENIED REUTER AND JOEY MENDES, APPLICANTS ? Applicant's Request ? Staff Recommendation CONTINUED TO Prepared by Sergio Klotz L-'1 Executive Director Planning Manager RECOMMENDED ACTION 1. Adopt a resolution approving modifications to Variance No. 2004-09 allowing a cover charge, serving draft beer, allowing bottle service, advertising or signs indicating the availability of alcohol, expansion into the basement level and allowing the hours of operation from 11:00 a.m. to 2:00 a.m. as conditioned. 2. Adopt a resolution denying modifications to Variance No. 2004-09 pertaining to dancing, outdoor patio area and an open rear door. These conditions are to remain in place. DISCUSSION Request of Applicant Mr. Justin Reuter and Mr. Joey Mendes, business partners of the Proof bar, are requesting approval to modify the conditions for a bar in the Santora Building located at 215 North Broadway. Property Description The bar is located in the Santora Building within the Artists Village. The building, constructed in 1929, is located at the northeast corner of Broadway and Second Street. The bar is located on the ground floor of a two-story commercial building with frontage on Broadway. The subject site has a zoning designation of Central Business-Artists Village (C3-A) and has a General Plan land use designation of District Center (DC). EXHIBIT A 31 B-2 Modification to Variance No. 2004-09 December 14, 2009 Page 2 The surrounding uses include a collection of restaurant, retail, artist galleries and studios within the Santora Building: a vacant building, a former electric substation and future live-work lofts to the east; a public garage and a variety of office and commercial uses to the north; multi-family residential uses and assorted commercial uses to the west; and restaurant and the Cal State Fullerton gallery, art program and student housing to the south (Exhibits 1 and 2). Project Description The bar currently occupies approximately 2,249 square feet on the ground floor of the Santora Building. The existing floor plan layout consists of a fixed bar, storage space and non-fixed seating and tables (Exhibit 3). The applicant proposes modifications to the existing conditions of Conditional Use Permit No. 2004-21 (Exhibit 4). The changes requested include the hours of operation, outdoor sale and consumption of alcohol, allowing the rear door to be kept open, sale of draft beer, sale of "hard" alcohol by the bottle, dancing, the allowance of a cover charge and the expansion of the bar into the basement. Analysis of the Issues Variance No. 2004-09 was granted to allow a bar use within the Artists Village zone. Along with the variance granted, conditions of approval mirroring Conditional Use Permit No. 2004-21 were also granted. The request of the applicants is identical with their request to modify CUP No. 2004-21. Staff has analyzed the modifications to Variance No. 2004- 09 consistent with the analysis and recommendation of CUP No. 2004-21. The changes requested include the hours of operation, outdoor sale and consumption of alcohol, allowing the rear door to be kept open, sale of draft beer, sale of "hard" alcohol by the bottle, dancing, the allowance of a cover charge and the expansion of the bar into the basement. In 2004, when the Proof Bar was granted permission to operate a bar within the downtown, conditions were imposed to ensure that the bar would operate in concert with the surrounding uses. The conditions that were imposed were intended to mitigate potential impacts created by the use and help to ensure the use would not negatively affect the surrounding community. During the continuance period since the initial j Zoning Administrator hearing in February 2008 the Police Department ~ noted a significant number of calls for service to the area. These 31 B-3 Modification to Variance No. 2004-09 December 14, 2009 Page 3 calls included a variety of incidences ranging from drunk in public, fighting, stabbing and shooting. During these calls for service it was observed that the bar facility was not operating within the boundaries of the conditions of approval. Staff brought these matters to the attention of Mr. Reuter and Mr. Mendes approximately six months ago and since then the operation has not had calls for service. The Police Department has reviewed the application for police-related concerns. The bar is located within an area of the City considered above average in police-related incidents. The area is located in Reporting District No. 165, which ranks 10th out of 102 citywide districts in total number of police-related incidents, which is not unusual for a high- activity area such as the Artists Village. In order to minimize the potential impacts associated with late hours and alcoholic beverage sales at this location, the Police Department recommended conditional approval of the project in 2004. These conditions are intended to mitigate any problems that may negatively affect the adjacent neighborhood and surrounding area that may result from the bar operations. Based on the time that has passed since the last Zoning Administrator hearing, staff has had an opportunity to further analyze the applicant's request. The following provides a brief analysis of each condition's modifi i n r cat o e uest• q Sales, service and consumption of alcoholic beverages shall be permitted only between the hours of 4:00 p.m. and 2:00 a.m., daily. Currently, Variance No. 2004-09 allows the bar to operate from 4:00 p.m. to 2:00 a.m. seven days a week. Those hours are consistent with the hours requested by the original applicant in 2004. The current owners of the bar have requested a start time of 6:00 a.m. to accommodate potential special events. The earlier than normal start time is concerning to staff based on the potential negative effects stemming from the early start and are recommending an amendment to allow the hours of operation from 11:00 a.m. to 2:00 a.m. No sales or consumption of alcoholic beverages shall take place outside. The applicant is requesting the use of the public alley behind the building for use as an outdoor area. While outdoor dining areas are commonplace within the downtown setting, outdoor liquor service in the i absence of a food menu is not. This request creates two issues of major concern. 31 B-4 Modification to Variance No. 2004-09 December 14, 2009 Page 4 The first area of concern is the potential for near-term and long-term incompatibility of land use. Currently, within the immediate surroundings residential uses are located within the Cal State Fullerton building along Second Street, as well along the west side of Broadway from First to Third Streets. Future residential uses along Sycamore Street between Second and Third Streets are already entitled and the potential addition of mixed-use zoning in the downtown could bring further residential units. Additionally, many commercial uses ranging from office to retail are located adjacent to or in close proximity of the bar. Staff has strong concerns that the use of the alley space may create negative issues with existing and future surrounding uses. The potential negative concerns include loitering, glare, noise, appearance and general clean up, any one of which may pose an issue with the continued orderly development of the area. i The second area of concern relates to the assumption that the public alley is available to the applicant for purposes of expanding the bar's operations outdoors. The Santa Ana Municipal code contains provisions for outdoor dining in the public right of way (SAMC 33-168 et. seq.). Pursuant to section 33-170 the Director of Public Works may grant an outdoor dining permit to allow food service establishments to create service areas in the public right-of-way. However, such permits may only be granted for areas that are immediately adjacent to a food service establishment. As Proof is not a food service establishment, but is instead a bar with no food service, they would not be eligible for an outdoor dining permit. Staff cannot recommend approval of the applicant's request to modify the condition prohibiting the outdoor sales and service of alcohol. Further, the code prohibits such use due to the requirement that outdoor dining permits may only be granted to food service establishments. Staff recommends that the Planning Commission confirm the action of the Zoning Administrator regarding the retention of this condition. The rear door shall be kept closed at all times during the operation of the premises except in cases of emergency and to permit deliveries. Said door not to consist solely of a screen or ventilated security door. This condition was originally retained by the Zoning Administrator. The applicant has appealed this condition in order to request that the rear door be allowed to remain open, thereby allowing patrons to congregate in the public alley directly behind the bar. The appeal of this condition is directly associated with the above request to allow an outdoor area. The 31 B-5 Modification to Variance No. 2004-09 December 14, 2009 Page 5 allowance to have the rear door open could create land use incompatibilities by allowing noise from the interior to escape and raise the noise level on the exterior. In addition, modification of this condition would allow Proof to effectively create an outdoor dining area not associated with a food service establishment, which is in violation of SAMC 33-170. Staff recommends that the Planning Commission confirm the action of the Zoning Administrator regarding the retention of this condition. The sale of draft beer is prohibited. The sale or service of beer on tap (or draught beer) is prohibited. This condition was originally crafted based on the previous applicant's business plan to not include beer sales but rather a "martini bar." Amendments to these conditions are recommended for approval with a revised condition to not allow the sale of pitchers of beer. Therefore the revised condition will read, "The sales of beer and malt beverages in pitchers or containers more than 16 ounces in size are prohibited." No distilled spirits shall be sold by the bottle. There appears to be a new trend in establishments selling alcohol to allow customers to order and have delivered an entire bottle of premium liquor to a table. For example, a customer would order their favorite bottle of vodka, have it delivered to their table and would serve and consume the alcohol at their leisure, without the assistance or supervision of the waiter or waitress staff. There is strong concern with this form of consumption due to the lack of monitoring by the operator or staff. Additionally, this concern would be exacerbated if outdoor and basement areas were allowed. The potential for unsupervised consumption could occur potentially resulting in excessive alcohol consumption due to the lack of waiter staff oversight. At the February 20, 2008 hearing the Zoning Administrator recommended approval of the request with modifications to the conditions. Staff is recommending a condition that a pouring device used to control portions must be attached to any champagne or distilled spirits when sold by the bottle and the submittal of an operation plan outlining the method by which the operator will train its staff and program the operation to ensure the conditions are followed. 31 B-6 Modification to Variance No. 2004-09 December 14, 2009 Page 6 There shall be no dancing allowed on the premises. Although a condition was placed on Variance No. 2004-09 prohibiting dancing within this establishment, Chapter 11 of the Santa Ana Municipal Code (SAMC) addresses the conditions in which dancing and alcohol sales are allowed to occur. The restrictions on dancing are established in Chapter 11 of the SAMC. According to Chapter 11 there are two circumstances under which dancing is permissible: a public dance hall allows dancing with not less than a 500 square foot dance floor but does not allow the sale of alcoholic beverages, additionally a public dance hall is considered a regulated use, similar to bars, where the standards for their location include a separation from sensitive uses, as well as from other regulated uses; a public dancing place is required to be a bona fide eating establishment as defined by the California Business and Professions Code. Further, it requires a dance floor of not less than 300 square feet, seating at tables for at least 50 patrons, and no less than 20 percent of the floor space dedicated as a kitchen facility. The intent is to create a dinner/dance location, such as the Black Angus, where dancing is an ancillary use. The Proof Bar does not meet either standard and therefore cannot be issued a dance permit under the existing standards contained in Chapter 11. The Police Department will be contemplating an Ordinance Amendment to change the standards to allow dancing within the C3-A zone. These changes will directly impact bars and restaurants within the Artists Village by allowing dancing. The dance ordinance change will allow the Proof Bar to apply to allow patrons to dance while listening to entertainment. With the pending ordinance amendment, staff supports a modification of the condition should the dance ordinance amendment be approved. There shall be no exterior advertising of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. The applicant has requested the ability to provide an exterior vertical sign immediately outside on the west elevation. The applicant is proposing to include the word "cocktail" within the sign copy. Staff recommends approval of a modification that will allow the request as a part of the business name advertising. 31 B-7 Modification to Variance No. 2004-09 December 14, 2009 Page 7 Any amendment to this conditional use permit must be submitted to the Planning Division and Police Department for review. The applicant has requested the use of a basement level room, that would be accessed via a stairway leading from the main bar area, as an expansion of the bar. Expansion into the basement area for utilization similar to the ground level bar is problematic; therefore, staff recommends additional conditions of approval to mitigate any potential negative impacts. The addition of conditions to ensure supervised consumption of alcohol, provision of staff at all times within the basement whenever the establishment is operating for security purposes and the use of the basement access door only for emergency purposes will mitigate any potential impacts. With the inclusion of these conditions, staff recommends approval of the applicant's request to expand the service area into the basement room. CEQA Compliance This project was reviewed in accordance with the Guidelines for the California Environmental Quality Act. The recommendation is exempt from further review pursuant to Section 15301. This Class 1 exemption applies to alterations to an existing operation or facility with negligible expansion. Categorical Exemption Environmental Review No. 2008-39 will be filed for this project. 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K ~ G ~ ~ 6 ~ y ~ Z ~ a3. l ~y 7 1 , a - _ ~ ~ ~ 1 ~ ,e ~ mR ® C o E ~ F~ G~ ~ J u[ ~j ~U ~ ~ _ [ ~ , ~ 0 I I- J ~ _ F ~p FF ~ 3 3 u• a ~ o- M ~ 8- ~ - It ~ s K - 1 ~ ~ I 1 z$ _ oR g p I I a ~ 2n 7d$ I I ~ I I .9~.! r, Z r x II _ w - ~ ~ { ~ ~ ~I i r z n ~ r t I ~ W ~I ~ II I II I / ~ 1 ~ I I I _J ~ 1 ~ I I I I I I \J t v~~.__. ' I I I I I I t. - J - I/ .A4".1 U a W a I Imo' j ~ I I 1 N .5..% S-~ ~ - ~______1_r_~_1_L1~L-____- _ I"~J a 1 M, ~ ~ z 0 ~a ~ ~ f - ~ 3$ ~ ya'~~1 Na ~jj v J; N ~ ry 3~ O i J 1 '0 N'. S~. 6 d. s' I ~ z ~ I: 11 ~ / t W •I I I i Il i ~ _ ~ ' ' i. ~ - i~~ I 1 ~ K- z i t l a I t I ~ ~ti ~~t 3~ I i 3 _ f ~ ~ ~ t ~ ry t I v I ~ r J' ~ li Y ~ ' I ~____-_--__1 d~. 3'~~~ ~~5 CONDITIONS TO VARIANCE N0.2004-09 A. Planning Division 1. Any amendment to this conditional use permit must be submitted to the Planning Division and Police Department for review. 2. The project shall remain in compliance with Site Plan Review (Development Project No. 04-049). 3. A C3 parking waiver shall be applied for and approved prior to issuance of certificate of occupancy. B. Police Department 1. Sales, service and consumption of alcoholic beverages shall be permitted only between the hours of 4:00 p.m. and 2:00 a.m., daily. 2. The sale of alcoholic beverages for consumption off the premises is strictly prohibited. 3. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee(s). 4. The applicant shall post and maintain a professional quality sign on the east elevation of the premises prohibiting the consumption of alcoholic beverages outside the licensed premises. 5. No sales or consumption of alcoholic beverages shall take place outside. 6. The sale of draft beer is prohibited. 7. The sale or service of beer on tap (or draught beer) is prohibited. 8. No distilled spirits shall be sold by the bottle. 9. No employee or agent shall solicit or accept any alcoholic or non-alcoholic beverage from any customer while in the premises. EXHIBIT 4 Page 1 of 4 31 B-16 10. Entertainment provided shall not be audible beyond 10 feet from the exterior of the premises in any direction. 11. Entertainment provided shall be limited to a maximum of five musicians. 12. There shall be no dancing allowed on the premises. 13. There shall be no exterior advertising of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. 14. The applicant(s) shall be responsible for maintaining free of litter the area adjacent to the premises over which they have control. 15. There shall be no coin operated games or video machines maintained upon the premises at any time. 16. There shall be no pool/billiard tables maintained upon the premises at any time. 17. There shall be no public telephones located on the exterior of the premises. Interior phones shall be restricted to outgoing calls only. 18. Any graffiti painted or marked upon the premises or on any adjacent area under control of the licensee(s) shall be removed or painted over within 24 hours of being applied. 19. The petitioner(s) shall post a placard on the exterior east elevation of the premises prohibiting loitering, pursuant to California Penal Code ("CPC") section 602. 20. It shall be the petitioner(s) responsibility to ensure that CPC section 602 is complied with at all times that the premises are in operation. 21. Petitioner(s) shall not require an admission charge, a cover charge or donation, nor shall there be a requirement to purchase a minimum number of drinks. Page 2 of 4 31 B-17 22. If the City ceases providing security guards in the designated parking structure, the applicant shall provide one state licensed uniformed security guard from 6:00 p.m. until one hour after closing on Friday, Saturday and Sunday, who shall maintain order therein and prevent any activity which would interfere with the quiet enjoyment of their property by nearby residents. 23. The rear door shall be kept closed at all times during the operation of the premises except in cases of emergency and to permit deliveries. Said door not to consist solely of a screen or ventilated security door. 24. All employees must attend Responsible Beverage Server (RBS) training provided by the State Department of Alcoholic Beverage Control. 25. The designated manager of the premises must be qualified by the State Department of Alcoholic Beverage Control. 26. Neither the licensee, nor any person or entity operating the premises with the permission of the licensee, shall violate the City's adult entertainment ordinance contained in SAMC section 12-1 and 12-2. 27. The premises shall not be operated as an adult entertainment business as such term defined in SAMC section 41-1701.6. 28. The conditional use permit shall be reviewed at 90 days, six months, at one year and then annually thereafter by the Police Department for any modification to the conditions of approval. 29. Existing suite and alley lighting 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, door/window locking devises and addressing be upgraded to current code standards. Lighting standards cannot be located in required landscape planters. 30. Cash register must be visible from the street at all times and shall not be obstructed at any time by temporary or permanent signage. Page 3 of 4 31 B-18 31. Window displays must be kept to a minimum for maximum visibility and shall not exceed 25 percent of window coverage. 32. Window displays and racks must be kept to a maximum height of three feet including merchandise. 33. Install a silent armed robbery alarm. Page 4 of 4 31 B-19 bk:12/29/09 RESOLUTION NO. 2009-21 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA GRANTING MODIFICATIONS TO CONDITIONAL USE PERMIT NO. 2004-21 AND VARIANCE NO. 2004-09 AND GRANTING APPEAL NO. 2009-06 FOR A TYPE 48 "PUBLIC PREMISES" ALCOHOLIC BEVERAGE CONTROL LICENSE FOR THE PROPERTY LOCATED AT 215 NORTH BROADWAY BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of modifications to Conditional Use Permit No. 2004- 21 for a Type 48 (on-site general "public premises") Alcoholic Beverage Control license and Variance No. 2004-09 for the property located at 215 North Broadway, currently operated as the Proof Bar. B. The request to modify Conditional Use Permit No. 2004-21 came before the Zoning Administrator of the City of Santa Ana for a duly noticed public hearing on November 4, 2009. C. The changes requested include the hours of operation, outdoor sale and consumption of alcohol, allowing the rear door to be kept open, sale of draft beer, sale of "hard" alcohol by the bottle, dancing, the allowance of a cover charge and the expansion of the bar into the basement. Following a public hearing, the Zoning Administrator granted the application in part and denied it in part. Appeal No. 2009-06 to this Planning Commission was thereafter filed by the applicant. D. Santa Ana Municipal Code Section 41-196 requires a conditional use permit for the sale of alcoholic beverages for on-site consumption. E. The applicant's appeal, together with the request to modify Conditional Use Permit No. 2004-21 and Variance No. 2004-09, came before the Planning Commission of the City of Santa Ana for a duly noticed public hearing on December 14, 2009. I F. During the pendency of its application for modifications, applicant modified or ~I eliminated three (3) requests. Applicant and City staff agreed to extended hours of operation which were less than those initially requested by applicant. Applicant formally withdrew its request for the Planning Commission to permit patron dancing upon staff's proposed revision (which the Planning Commission approves) of Condition No. 13 to the CUP and Variance. Finally, applicant withdrew any request to construct fixtures in the outdoor space behind its tenant space and/or to operate this outdoor space as a patio. Resolution No. 2009-21 Page 1 31 B-20 G. Santa Ana Municipal Code Section 41-638 authorizes the Planning Commission to grant a variance upon making certain findings of approval. 1. That because of special circumstances applicable to the subject property, including size, shape, topography, location or surroundings, 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 provisions of this Chapter. The proposed modifications to Variance No. 2004-09 to allow a cover charge, serving draft beer, bottle service, advertising or signs indicating the availability of alcohol, usage of the basement and to allow the hours of operation from 11:00 a.m. to 2:00 a.m. will continue to provide an ancillary service and amenity to the Artists Village and thereby benefit the community. The modifications to the variance help to continue allow the bar within the Artists Village to provide an additional nighttime amenity to the area. The condition modifications could create a negative impact to the surroundings. Additional conditions have been placed on Variance No. 2004-09 that will mitigate potential impacts created by the use and ensure that the use will not negatively affect the surrounding community. 2. That the granting of a variance is necessary for the preservation and enjoyment of one or more substantial property rights. Approval of the condition modifications allows the applicants to operate a bar within the Artists Village of the downtown. The modifications will add to the growing Artists Village active lifestyle; support evening activities and a variety of dining establishments. Downtown should be the place to go to experience the full character of a community, and the bar will contribute to a vibrant evening experience. 3. That the granting of a variance will not be materially detrimental to the public welfare or injurious to surrounding property. The approval of the variance will not be detrimental to persons residing or working in the area because the use, as conditioned, will not create negative or adverse impacts. The conditions imposed on the variance will mitigate any potential impacts that might occur from the proposed alcoholic beverage sales and entertainment. The additional business will assist in promoting the economic viability and enhance the livability for this area of the downtown. As conditioned, the proposed project will be in compliance with all applicable regulations and conditions imposed on a bar selling alcoholic beverages pursuant to Chapter 41 of the Santa Ana Municipal Code. 4. That the granting of a variance will not adversely affect the General Plan of the City. Resolution No. 2009-21 Page 2 31B-21 The proposed modifications will not adversely affect the General Plan. Bars and ancillary uses such as alcoholic beverage control licenses are permitted within the Central Business-Artists Village (C3-A) zoning district and the District Center (DC) General Plan designation. The project will help to facilitate Goal 2.0 to "Promote land uses which enhance the City's economic and fiscal viability." The modifications supported will help to provide a service to complement other uses within the growing Artists Village. Further, Goal 4.0 of the Land Use Element, protect and enhance development sites and districts which are unique community assets that enhance the quality of life. An establishment that adds to the nightlife of the Artists Village promotes the unique makeup of the area with a mix of residences and commercial businesses. H. Santa Ana Municipal Code Section 41-638 authorizes the Planning Commission 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? The proposed modifications to conditional use permit to allow a cover charge, serving draft beer, bottle service, advertising or signs indicating the availability of alcohol, usage of the basement and to allow the hours of operation from 11:00 a.m. to 2:00 a.m. will continue to provide an ancillary service and amenity to the Artists Village and thereby benefit r ne ative im act the community. The provision of a bar could c eate a g p i to the surroundin s. Modified conditions have been laced on the g p Alcoholic Beverage Control license that will mitigate potential impacts created by the use and ensure that the use will not negatively affect the surrounding 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 approval of the modifications, noted in subsection1 above, to the conditional use permit will not be detrimental to persons residing or workin m the area because the use, as conditioned, will not create 9 negative or adverse impacts. The sale of alcoholic beverages will occur on the premises. Moreover, conditions are imposed to mitigate potential impacts to those in the vicinity. 3. Will the proposed use adversely affect the present economic stability or future economic development of properties surrounding the area? The "public premises" is a suitable and appropriate use within the downtown setting. The modification supported should increase the patronage within the Artists Village, thereby enhancing the viability of Resolution No. 2009-21 Page 3 31 B-22 the business. Further, with the conditions imposed the use and site should enhance the success of the area building on the successful cultural and business climate of the surrounding properties in the area. 4. Will the proposed use comply with the regulations and conditions specified in Chapter 41 for such use? As conditioned, the proposed project will be in compliance with all applicable regulations and conditions imposed on a bar selling alcoholic beverages pursuant to Chapter 41 of the Santa Ana Municipal Code. 5. Will the proposed use adversely affect the General Plan or any specific plan of the City? The proposed modifications will not adversely affect the General Plan. Bars and ancillary uses such as alcoholic beverage control licenses are permitted within the Central Business-Artists Village (C3-A) zoning district and the District Center (DC) General Plan designation. The project will help to facilitate Goal 2.0 to "Promote land uses which enhance the City's economic and fiscal viability." The modifications supported will help to provide a service to complement other uses within the growing Artists Village. Further, Goal 4.0 of the Land Use Element, protect and enhance development sites and districts which are unique community assets that enhance the quality of life. An establishment that adds to the nightlife of the Artists Village promotes the unique makeup of the area with a mix of residences and commercial businesses. I. This project was reviewed in accordance with the Guidelines for the California Environmental Quality Act. The recommendation is exempt from further review pursuant to Section 15301. This Class 1 exemption applies to alterations to an existing operation or facility with negligible expansion. Categorical Exemption Environmental Review No. 2008-39 will be filed for this project. Section 2. The Planning Commission, after conducting the public hearing and being fully advised, hereby: A. grants Appeal No. 2009-06 as to the deletion of Condition No. 24 to Conditional Use Permit No. 2004-21 and Variance No. 2004-09, and denies the remainder of Appeal No. 2009-06 as moot. B. approves in part and denies in part the request to modify Conditional Use Permit No. 2004-21 as conditioned in Exhibit A hereto (which shows additions as underlined text and deletions as strikeout text), which is incorporated herein by this reference; and Resolution No. 2009-21 Page 4 31 B-23 C. approves in part and denies in part the request to modify Variance No. 2004-09 as conditioned in Exhibit B hereto (which shows additions as underlined text and deletions as strikeout text), which is incorporated herein by this reference. These decisions are based upon the evidence submitted at the above said hearing, which includes but is not limited to: the Requests for Planning Commission Action dated December 14, 2009 and exhibits attached thereto; and the public testimony, all of which are incorporated herein by this reference. ADOPTED this 14th day of December, 2009 by the following vote: AYES: Commissioners: Alderete, Betancourt, Gartner, Leo, Turner, Yrarrazaval (6) NOES: Commissioners: None (0) ABSENT: Commissioners: None (0) ABSTENTIONS: Commissioners: None (0) Christopher Leo Chairman APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Benjamin Kaufman Chief Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Martha Ramirez, Planning Commission Secretary, do hereby attest to and certify the attached Resolution No. 2009-21 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on December 14, 2009. Date: Planning Commission Secretary City of Santa Ana Resolution No. 2009-21 Page 5 31 B-24 CONDITIONS TO CONDITIONAL USE PERMIT N0.2004-21 Should modification to Conditional Use Permit No. 2004-21 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. In addition, it shall meet the following conditions: The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the conditional use permit. Should modification to Conditional Use Permit No. 2004-21 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. In addition, it shall meet the following conditions: The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the conditional use permit. A. Planning Division 1. Any amendment to this conditional use permit must be submitted to the Planning Division and Police Department for review. 2. The project shall remain in compliance with Site Plan Review (Development Project No. 04-049). 3. A C3 parking waiver shall be applied for and approved prior to issuance of certificate of occupancy. 4. Prior to issuance of a certificate of occupancy for the basement space, all code requirements including but not limited to Building and Fire items, shall be in compliance. B. Police Department 1. Sales, service and consumption of alcoholic beverages shall be permitted only between the hours of 4~A- 11:00 a.m. and 2:00 a.m., daily. EXHIBIT A Resolution No. 2009-21 Page 6 31 B-25 I 2. The sale of alcoholic beverages for consumption off the premises is strictly prohibited. 3. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee(s). 4. The applicant shall post and maintain a professional quality sign on the east elevation of the premises prohibiting the consumption of alcoholic beverages outside the licensed premises. 5. No sales or consumption of alcoholic beverages shall take place outside. 6' Tho ~+Ic of rlr~+{+ hoot r,r~hihi+orl The sales of beer and malt beverages in pitchers r,.......,....... or containers more than 16 ounces in size are prohibited. 7. 8. An alcohol-pouring device used to control portions must be attached to any champagne or distilled spirits when sold by the bottle. 9. Prior to Planning Commission approval the operator shall submit for review and approval to both the Police Department and Planning Division a Security and Operations Plan outlining the services provided, employees and duties/titles, schedule of events/entertainment planned outline the method to provide service at the tables and basement level as well as any other information outlining the security and operations of the establishment. This plan once approved by the Police Department and Planning Division shall become a condition of approval for this discretionary action. Any modification to this Security and Operations plan must be pre-approved by both the Police Department and Planning Division. The security plan shall contain the following: a. The rear exit door at the basement level shall be kept closed at all times during the operation of the premises except in cases of emergency and to permit deliveries. The door shall be equipped with an audible alarm that is activated upon the opening of the door. Resolution No. 2009-21 Page 7 31 B-26 i b. On Friday and Saturday evenings between the hours of 9:00 p.m. and 2:30 a m the licensee(s) shall provide a minimum of one (1) uniformed, licensed security guard for every 100 persons in attendance per event to maintain order therein and prevent any activity which would interfere with the quiet enioyment of their property by nearby residents. c. The Chief of Police or his designate shall first approve every security guard employed by you. If there is a marked or noticeable increase in the number of police-related incidents on or near the premises, as such increase may be determined by the Chief of Police the permittee shall increase the number of uniformed licensed security guards to a total number of guards as determined by the Chief of Police. d. The licensee(s) or an employee of the licensee(s) will be present to monitor alcohol consumption in the basement area at all times that alcoholic beverages are being served or consumed. e. The establishment shall be responsible for submitting to the Police Department a schedule of events or theme nights taking place on the premises on a monthly basis. The Police Department is to receive a copy of the schedule no later than the first day of each month. f. The licensee shall provide a Closed Circuit Television System approved by the Police Department and capable of viewing and recording events inside the premises (basement area) the front of the restaurant and rear alley with a resolution which will clearly identify individuals for later identification. Camera system components shall include: i. A minimum of one color camera at each specified location. ii. A color camera recorder or digital system capable of recording events on all cameras simultaneously. iii. A tape or disc storage library of recorded cameras kept for a minimum of 60 days. Resolution No. 2009-21 Page 8 31 B-27 i iv. If video tape is used tapes cannot be taped over more than six times. v. An audio recording component that will record sounds occurring at the specified location. 10. No employee or agent shall solicit or accept any alcoholic or non-alcoholic beverage from any customer while in the premises. 11. Entertainment provided shall not be audible beyond 10 feet from the exterior of the premises in any direction. 12. Entertainment provided shall be limited to a maximum of five musicians. 13. The applicant at all times shall adhere to Chapter 11 regarding dancing as it may be amended from time to time. 14. There shall be no exterior advertising of any kind or type, ' h°~~°vc-rcruge.°T. except as provided for in the Code or the Alcohol Beverage Control statue and regulations. 15. The applicant(s) shall be responsible for maintaining free of litter the area adjacent to the premises over which they have control. 16. There shall be no coin operated games or video machines maintained upon the premises at any time. 17. There shall be no pool/billiard tables maintained upon the premises at any time. 18. There shall be no public telephones located on the exterior of the premises. Interior phones shall be restricted to outgoing calls only. 19. Any graffiti painted or marked upon the premises or on any adjacent area under control of the licensee(s) shall be removed or painted over within 24 hours of being applied. 20. The petitioner(s) shall post a placard on the exterior east elevation of the premises prohibiting loitering, pursuant to California Penal Code ("CPC") section 602. 21. It shall be the petitioner(s) responsibility to ensure that CPC section 602 is complied with at all times that the premises are in operation. 22. ~ , ~h-.II +hore ho roiri ~irow+en+ +n n~ ~rnh.+c+e minims ni ~mhor of rlrinl~~. The applicant Resolution No. 2009-21 Page 9 31 B-28 i ~I ~I shall not share any profits, or pay any percentage or commission to a promoter or any other person, based upon monies collected as a door charge, cover charge, donation or any other form of admission charge, including minimum drink orders or the sale of drinks. 23. If the City ceases providing security guards in the designated parking structure, the applicant shall provide one (1) state licensed uniformed security guard from 6:00 p.m. until one (1) hour after closing on Friday, Saturday and Sunday, who shall maintain order therein and prevent any activity which would interfere with the quiet enjoyment of their property by nearby residents. 25. All employees must attend Responsible Beverage Server (RBS) training provided by the State Department of Alcoholic Beverage Control. 26. The designated manager of the premises must be qualified by the State Department of Alcoholic Beverage Control. 27. Neither the licensee, nor any person or entity operating the premises with the permission of the licensee, shall violate the City's adult entertainment ordinance contained in SAMC section 12-1 and 12-2. 28. The premises shall not be operated as an adult entertainment business as such term defined in SAMC section 41-1701.6. 29. The conditional use permit shall be reviewed at 90 days, six months, at one year and then annually thereafter by the Police Department for any modification to the conditions of approval. 30. Existing suite and alley lighting 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 door/window locking devises and addressing be upgraded to current code standards. Lighting standards cannot be located in required landscape planters. 31. Cash register must be visible from the street at all times and shall not be obstructed at any time by temporary or permanent signage. 32. Window displays must be kept to a minimum for maximum visibility and shall not exceed 25 percent of window coverage. 33. Window displays and racks must be kept to a maximum height of three feet including merchandise. Resolution No. 2009-21 Page 10 31 B-29 34. Install a silent armed robbery alarm. 35. The rear exit door at the basement level shall be kept closed at all times during the operation of the premises except in cases of emergency and to permit deliveries. Resolution No. 2009-21 Page 11 31 B-30 CONDITIONS TO VARIANCE N0.2004-09 Should modification to Variance No. 2004-09 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. In addition, it shall meet the following conditions: The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this conditional use permit. i The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the conditional use permit. A. Planning Division 1. Any amendment to this conditional use permit must be submitted to the Planning Division and Police Department for review. 2. The project shall remain in compliance with Site Plan Review (Development Project No. 04-049). 3. A C3 parking waiver shall be applied for and approved prior to issuance of certificate of occupancy. 4. Prior to issuance of a certificate of occupancy for the basement space, all code requirements, including but not limited to Building and Fire items, shall be in compliance. B. Police Department 1. Sales, service and consumption of alcoholic beverages shall be permitted only between the hours of 4:~8~ 11:00 a.m. and 2:00 a.m., daily. EXHIBIT B Resolution No. 2009-21 Page 12 31B-31 2. The sale of alcoholic beverages for consumption off the premises is strictly prohibited. 3. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee(s). 4. The applicant shall post and maintain a professional quality sign on the east elevation of the premises prohibiting the consumption of alcoholic beverages outside the licensed premises. 5. No sales or consumption of alcoholic beverages shall take place outside. 6' Tho ~+lo r`f iJrr+fF hoer r,r„h;h;+o.-i. The sales of beer and malt beverages in pitchers or containers more than 16 ounces in size are prohibited. 7. . 8. An alcohol-pouring device used to control portions must be attached to any champagne or distilled spirits when sold by the bottle. 9. Prior to Planning Commission approval, the operator shall submit for review and approval to both the Police Department and Planning Division a Security and Operations Plan outlining the services provided, employees and duties/titles, schedule of events/entertainment planned, outline the method to provide service at the tables and basement level, as well as any other information outlining the security and operations of the establishment. This plan once approved by the Police Department and Planning Division shall become a condition of approval for this discretionary action. Any modification to this Security and Operations plan must be pre-approved by both the Police Department and Planning Division. The security plan shall contain the following: a. The rear exit door at the basement level shall be kept closed at all times during the operation of the premises except in cases of emergency and to permit deliveries. The door shall be equipped with an audible alarm that is activated upon the opening of the door. Resolution No. 2009-21 Page 13 31 B-32 i b. On Friday and Saturday evenings between the hours of 9:00 p.m. and 2:30 'I a m the licensee(s) shall provide a minimum of one (1) uniformed, licensed security guard for every 100 persons in attendance per event, to maintain order therein and prevent any activity which would interfere with the quiet enjoyment of their property by nearby residents. c. The Chief of Police or his designate shall first approve every security guard employed by you. If there is a marked or noticeable increase in the number of police-related incidents on or near the premises, as such increase may be determined by the Chief of Police the permittee shall increase the number of uniformed licensed security guards to a total number of guards as determined by the Chief of Police. d. The licensee(s) or an employee of the licensee(s) will be present to monitor alcohol consumption in the basement area at all times that alcoholic beverages are being served or consumed. e. The establishment shall be responsible for submitting to the Police Department a schedule of events or theme nights taking place on the premises on a monthly basis. The Police Department is to receive a copy of the schedule no later than the first day of each month. f. The licensee shall provide a Closed Circuit Television System approved by the Police Department and capable of viewing and recording events inside the premises (basement area), the front of the restaurant and rear alley with a resolution which will clearly identify individuals for later identification. Camera system components shall include: i. A minimum of one color camera at each specified location. ii. A color camera recorder or digital system capable of recording events on all cameras simultaneously. r ameras ke t for a minimum iii. A tape or disc storage library of reco ded c p of 60 days. Resolution No. 2009-21 Page 14 31 B-33 I iv. If video tape is used tapes cannot be taped over more than I, six times. v. An audio recording component that will record sounds occurring at the specified location. 10. No employee or agent shall solicit or accept any alcoholic or non-alcoholic beverage from any customer while in the premises. 11. Entertainment provided shall not be audible beyond 10 feet from the exterior of the premises in any direction. 12. Entertainment provided shall be limited to a maximum of five musicians. 13. The applicant at all times shall adhere to Chapter 11 regarding dancing as it may be amended from time to time. r+lln~aorl nn +he nromieoc 14. There shall be no exterior advertising of any kind or type,~sl~++~ . except as provided for in the Code, or the Alcohol Beverage Control statue and regulations. 15. The applicant(s) shall be responsible for maintaining free of litter the area adjacent to the premises over which they have control. 16. There shall be no coin operated games or video machines maintained upon the premises at any time. 17. There shall be no pool/billiard tables maintained upon the premises at any time. 18. There shall be no public telephones located on the exterior of the premises. Interior phones shall be restricted to outgoing calls only. 19. Any graffiti painted or marked upon the premises or on any adjacent area under control of the licensee(s) shall be removed or painted over within 24 hours of being applied. 20. The petitioner(s) shall post a placard on the exterior east elevation of the premises prohibiting loitering, pursuant to California Penal Code ("CPC") section 602. Resolution No. 2009-21 Page 15 of 17 31 B-34 21. It shall be the petitioner(s) responsibility to ensure that CPC section 602 is complied with at all times that the premises are in operation. 22. e€-des. The applicant shall not share any profits, or pay any percentage or commission to a promoter or any other person, based upon monies collected as adore charge, cover charge, donation or any other form of admission charge, including minimum drink orders or the sale of drinks. 23. If the City ceases providing security guards in the designated parking structure, the applicant shall provide one (1) state licensed uniformed security guard from 6:00 p.m. until one (1) hour after closing on Friday, Saturday and Sunday, who shall maintain order therein and prevent any activity which would interfere with the quiet enjoyment of their property by nearby residents. =4-Thr° ro~+r `Jnnr ~h.~ll ho Ircn+ nln~or! III +imoc rl~ ~rinn +hc nr~or%++i~n of +ho u ~ y r 25. All employees must attend Responsible Beverage Server (RBS) training provided by the State Department of Alcoholic Beverage Control. 26. The designated manager of the premises must be qualified by the State Department of Alcoholic Beverage Control. 27. Neither the licensee, nor any person or entity operating the premises with the permission of the licensee, shall violate the City's adult entertainment ordinance contained in SAMC section 12-1 and 12-2. 28. The premises shall not be operated as an adult entertainment business as such term defined in SAMC section 41-1701.6. 29. The conditional use permit shall be reviewed at 90 days, six months, at one year and then annually thereafter by the Police Department for any modification to the conditions of approval. 30. Existing suite and alley lighting 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, door/window locking devises and addressing be upgraded to current code standards. Lighting standards cannot be located in required landscape planters. Resolution No. 2009-21 Page 16 of 17 31 B-35 31. Cash register must be visible from the street at all times and shall not be obstructed at any time by temporary or permanent signage. 32. Window displays must be kept to a minimum for maximum visibility and shall not exceed 25 percent of window coverage. 33. Window displays and racks must be kept to a maximum height of three feet including merchandise. 34. Install a silent armed robbery alarm. 35. The rear exit door at the basement level shall be kept closed at all times during the operation of the premises except in cases of emergency and to permit deliveries. Resolution No. 2009-21 Page 17 of 17 31 B-36