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HomeMy WebLinkAbout FULL PACKET_2013-03-18MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA MARCH 4, 2013 CLOSED SESSION MEETING CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 5:12 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL A. PULIDO, Mayor SAL TINAJERO, Mayor Pro Tern (5:20 p.m ANGELICA AMEZCUA P. DAVID BENAVIDES MICHELE MARTINEZ ROMAN A. REYNA VINCENT F. SARMIENTO (5:19 p.m.) COUNCILMEMBERS Absent: None STAFF Present: KEVIN O'ROURKE, Interim City Manager SONIA R. CARVALHO, City Attorney MARIA D. HUIZAR, Clerk of the Council PUBLIC COMMENTS • Christian Abasto, representing the Public Law Center, spoke on Agenda Item 1B - noted that suit has been filed on March 4, 2013 against the State of California Department of Finance for the retention of funds and seek support to further protect affordable and low income funds. • Cesar Covarrubias, Executive Director of the Kennedy Commission, commended City Attorney and Public Law Center for efforts to protect low and moderate income funds; opined that projects/contracts are enforceable obligations. COUNCIL RECESSED to Room 147 for Closed Session discussion at 5:18 p.m. CLOSED SESSION ITEMS - The Brown Act permits legislative bodies to discuss certain matters without members of the public present. The City Council finds, based on advice from the City Attorney, that discussion in open session of the following matters will prejudice the position of the City in existing and anticipated litigation: CITY COUNCIL MINUTES MARCH 4, 2013 1 0A-1 1A CONFERENCE WITH LEGAL COUNSEL--EXISTING LITIGATION pursuant to Government Code Section 54956.9(a) • Patricia Koster vs. City of Santa Ana, OC Superior Case No. 30-2011- 0518423 • Santa Ana Station District LLC, Santa Ana Station District Housing Partners LP, et. al vs. Matosantos, Department of Finance, City of Santa Ana Successor Agency et. al. 1 B CONFERENCE WITH LEGAL COUNSEL- ANTICIPATED/POTENTIAL LITIGATION pursuant to Government Code Section 54956.9(b) • Subway, 1221 E. 1 st Street, #B, Santa Ana, CA • Roberti's Tax, 1221 E. 1St Street, #E, Santa Ana, CA • State of California, Department of Finance (DOF) 1C CONFERENCE WITH REAL PROPERTY NEGOTIATOR pursuant to Government Code Section 54956.8. Property address: 1222 East 4th Street, Santa Ana, CA Property Owner: Walter W. Cole, Jr. and Antoinette Cole, Trustees of the Cole Family Living Trust 1 D CONFERENCE WITH LABOR NEGOTIATOR pursuant to Government Code Section 54957.6 Agency Negotiators: Personnel Services Executive Director, Ed Raya Employee Organizations: Santa Ana Police Officers Association (POA) and Service Employees' International Union (SEIU) Full-Time Employees RECESS THE CLOSED SESSION MEETING AT 6:14 P.M. AND CONVENED TO THE REGULAR OPEN MEETING CITY COUNCIL MINUTES 2 MARCH 4, 2013 1 0A-2 REGULAR OPEN SESSION CALLED TO ORDER ATTENDANCE PLEDGE OF ALLEGIANCE INVOCATION COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 6:15 P.M. COUNCILMEMBERS Present: MIGUEL A. PULIDO, Mayor SAL TINAJERO, Mayor Pro Tern ANGELICA AMEZCUA P. DAVID BENAVIDES MICHELE MARTINEZ ROMAN A. REYNA VINCENT F. SARMIENTO COUNCILMEMBERS Absent: None STAFF Present: KEVIN O'ROURKE, Interim City Manager SONIA R. CARVALHO, City Attorney MARIA D. HUIZAR, Clerk of the Council MAYOR PULIDO JACK ABEELEN, Police Chaplain CLOSED SESSION REPORT - See report under Agenda Item 19A. PRESENTATIONS SPECIAL PRESENTATION by Mothers Against Drunk Driving (MADD) to the following Santa Ana Police Department officers for their efforts in deterring drunk driving: Sergeant Matt Craig* Officer Wendy Beatley* Officer Bob Guidry Officer John Kachirisky* *Not Present Officer Eric Majors* Officer Gerardo Rodarte Officer Daniel Serna CITY COUNCIL MINUTES 3 MARCH 4, 2013 1 0A-3 CERTIFICATE OF RECOGNITION presented by MAYOR PULIDO to Mater Dei High School recognizing their many contributions to the Santa Ana community. PROCLAMATION presented by COUNCILMEMBER MARTINEZ in recognition of Red Shirt Friday, a nationwide initiative supporting the men and women in the United States Armed Forces to the Vietnam Veterans of America - Chapter 1024, the Associates of Vietnam Veterans of America - Chapter 1024, the American GI Forum of the United States - Rudy Escalante Chapter (Orange County), and to the United Mexican American Veterans Association. PROCLAMATION presented by COUNCILMEMBER MARTINEZ in recognition of Earth Hour on March 23, 2013 from 8:30 p.m. to 9:30 p.m., an annual campaign to raise awareness of environmental challenges to Southern California Gas Company. CERTIFICATES OF RECOGNITION presented by COUNCILMEMBER REYNA to Leon and Pearl Raya of RAYA Foundation and Lisa Gonzales-Solomon, Principal at Lowell Elementary School for their outstanding contribution and involvement in the Santa Ana community. PUBLIC COMMENT • George Collins, announced roll-out of newly redesigned Neighborhood Watch signs available through Comlink and neighborhood associations; inquired if annual Fourth of July Fireworks Celebration will be held on Sunday, June 30tH • David Sonnebern, Orange County Coordinator for the California Clean Money Campaign; spoke of Senate Bill called the California Disclose Act that requires that all political ads disclose three major funders; goal to set it for voter approval in November, 2014; seeking endorsements and co-sponsors for kick-off event in Orange County. CONSENT CALENDAR ITEMS MOTION: Approve Consent Calendar Items 10A through 31A with the following modifications: • Councilmember Benavides pulled Agenda Item 25D for separate discussion; and • Councilmember Sarmiento pulled Agenda Item 25B for separate discussion. MOTION: Benavides VOTE: AYES: NOES: SECOND: Sarmiento Amezcua, Benavides, Sarmiento, Tinajero (7) Martinez, Reyna, Pulido, None (0) CITY COUNCIL MINUTES 4 MARCH 4, 2013 1 0A-4 ABSTAIN: None (0) ABSENT: None (0) 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 FROM THE REGULAR MEETING OF FEBRUARY 19, 2013 - Clerk of the Council Office MOTION: Approve Minutes. MISCELLANEOUS ADMINISTRATION 19A CLOSED SESSION REPORT - City Attorney's Office MOTION: Approve. 1. EXISTING LITIGATION pursuant to Government Code Section 54956.9(a) - Patricia Koster vs. City of Santa Ana, OC Superior Case No. 30-2011-0518423; Reject 998 Offer as presented by plaintiff. 2. ANTICIPATED LITIGATION pursuant to Government Code Section 54956.9(b): • Subway, 1221 E. 1St Street, #B, Santa Ana, CA; Tenant Relocation Settlement in the amount of $382,000. • Roberti's Insurance & Tax, 1221 E. 1St Street, #E, Santa Ana, CA; Relocation Settlement in the amount of $193,500. 3. REAL PROPERTY NEGOTIATOR pursuant to Government Code Section 54956.8. - Property address, 1222 East 4th Street; Property Owner: Walter W. Cole, Jr. and Antoinette Cole, Trustees of the Cole Family Living Trust; "Full-Take" in the amount of $1,105,000. 19B EXCUSED ABSENCES - None CITY COUNCIL MINUTES 5 MARCH 4, 2013 1 0A-5 19C QUARTERLY REPORT FOR HOUSING DIVISION PROJECTS AND ACTIVITIES - Community Development Agency MOTION: Receive and file. BUDGETARY MATTERS APPROPRIATION ADJUSTMENTS 20A COUNTY OF ORANGE SOCIAL SERVICES AGENCY VOCATIONAL TRAINING AND WORK EXPERIENCE PROGRAM - Community Development Agency MOTION: 1. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2013-109 - Recognizing an additional $200,000 awarded to the City of Santa Ana, Santa Ana WORK Center by the County of Orange Social Services Agency for vocational training and work experience activities. 2. Authorize the City Manager and Clerk of the Council to execute an amendment subject to non-substantive changes approved by the City Manager and City Attorney. AGMT NO. 2013-040 - AMENDMENT - With the County of Orange Social Services Agency for vocational training and work experience activities, effective May 1, 2013 through June 30, 2013, 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 and/or actions as noted on the Request for Council Action report. (Items 25A and 25C) 25A AGMT NO. 2013-041 - EXTEND USE OF BRISTOL/ALTON BIKE TRAIL FOR PARKS AND PUBLIC RECREATIONAL PURPOSES - With Southern California Edison Company, in an amount not to exceed $1,250 for a five-year term - Parks, Recreation & Community Services Agency CITY COUNCIL MINUTES 6 MARCH 4, 2013 1 0A-6 25B JOINT USE AND REIMBURSEMENT OF CONSTRUCTION COST FOR ROOSEVELT ELEMENTARY PARK Parks, Recreation & Community Services Agency Executive Director of Parks and Recreation Mouet provided brief presentation on project and other joint use efforts. Councilmember Sarmiento noted that project will allow open space in Ward 1. Councilmember Martinez thanked PREY Council Committee, SAUSD and staff for efforts to bring project forward; need to address sustainability of joint use projects and long-term maintenance. Councilmember Reyna requested information on turf and Councilmember Amezcua about service hours. 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. 1. Authorize the City Manager and Clerk of the Council to approve a Joint Use agreement, subject to non-substantive changes approved by the City Manager and City Attorney. AGMT NO. 2013-042 - With the Santa Ana Unified School District for the programming of Roosevelt Elementary School for a 30-year term, with the option for two 10-year renewals 2. Authorize the City Manager and Clerk of the Council to execute a Reimbursement of Construction Cost agreement. AGMT NO. 2013-043 - With the Santa Ana Unified School District for park improvements at Roosevelt Elementary School in the amount of $4,930,000. MOTION: Sarmiento SECOND: Martinez VOTE: AYES: Amezcua, Benavides, Martinez, Reyna, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) 25C AGMT NO. 2013-044 - PREPARATION OF ENVIRONMENTAL SERVICES DOCUMENTS FOR A MULTI-FAMILY PRIVATE DEVELOPMENT, THE 301 DEVELOPMENT PROJECT LOCATED AT CITY COUNCIL MINUTES 7 MARCH 4, 2013 1 0A-7 301 EAST JEANETTE LANE (PROJECT 2013-04) - With RBF Consulting, A Baker Company (RBF) in an amount not to exceed $80,793 - Planning and Building Agency 25D MUNICIPAL. PARKING FACILITIES OPERATOR Community Development Agency Councilmember Benavides requested two week continuance to discuss potential displacement of employees. MOTION: Continue consideration of matter to the March 18, 2013 City Council Meeting. MOTION: Benavides VOTE: AYES: NOES: ABSTAIN: ABSENT: SECOND: Sarmiento Amezcua, Benavides, Martinez, Reyna, Pulido, Sarmiento, Tinajero (7) None (0) None (0) None (0) LAND USE MATTERS CONDITIONAL USE PERM ITIVARIANCES 31A CONDITIONAL USE PERMIT NO. 2012-30 TO ALLOW A CAR WASH AT 4426 WEST FIRST STREET - JOSEPH BASHOURA, APPLICANT - Planning and Building Agency Recommended action approved by the Planning Commission on February 11, 2013, by a vote of 6-0. MOTION: Receive and file the staff report approving Conditional Use Permit No. 2012-30 as conditioned. **END OF CONSENT CALENDAR** CITY COUNCIL MINUTES 8 MARCH 4, 2013 1 0A-8 BUSINESS CALENDAR ITEMS RESOLUTIONS 55A AUTHORIZING SUBMISSION OF GRANT APPLICATION TO CALTRANS ELDERLY & DISABLED PERSONS SPECIALIZED TRANSIT PROGRAM AND DESIGNATING CITY'S SIGNATORY ON GRANT DOCUMENTS - Finance & Management Services Agency and Parks, Recreation & Community Services Agency MOTION: Adopt a resolution. RESOLUTION NO. 2013-011 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING STAFF TO APPLY FOR FEDERAL TRANSIT ADMINISTRATION FUNDING PURSUANT TO 49 U.S.C. SECTION 5310 WITH CALIFORNIA DEPARTMENT OF TRANSPORTATION MOTION: Benavides VOTE: AYES: NOES: ABSTAIN: ABSENT: PUBLIC HEARINGS SECOND: Sarmiento Amezcua, Benavides, Martinez, Reyna, Pulido, Sarmiento, Tinajero (7) None (0) None (0) None (0) 75A PUBLIC HEARING - MODIFICATIONS TO CHAPTERS 41 AND 11 OF THE SANTA ANA MUNICIPAL CODE IN ORDER TO AMEND VARIOUS SECTIONS OF THE CITY'S CODE RELATED TO ALCOHOL SALES AND ENTERTAINMENT - Planning and Building Agency MOTION: Per staffs request, continue matter to a minmium of 90 days. MOTION: Benavides SECOND: Sarmiento VOTE: AYES: Amezcua, Benavides, Martinez, Reyna, Pulido, Sarmiento, Tinajero (7) NOES: None (0) CITY COUNCIL MINUTES 9 MARCH 4, 2013 1 0A-9 ABSTAIN: None (0) ABSENT: None (0) CITY COUNCIL MEETING RECESSED TO THE HOUSING AUTHORITY MEETING AT 7:27 P.M. AND RECONVENED AT 7:28 P.M. WITH SAME MEMBERS PRESENT. COMMENTS 90A CITY MANAGER'S COMMENTS Interim City Manager O'Rourke: • Parks, Recreation and Community Service Agency received grant for the purchase of 30 new Google grown computers for patron use at the Library - bringing total to 68 computers available to the community; • Public Works Agency received two awards by the California Engineers Council for the Santa Ana River Vision Plan and for the Diamond Water Infrastructure Project; and • February 28th the City held first Town Hall Meeting on Budget and will be scheduling additional meetings in the near future. 90B CITY COUNCILMEMBER COMMENTS Councilmember Amezcua: Thanked and recognized Acting Police Chief Rojas and staff for the Gun-Buy-Back-Program that reclaimed over 200 guns; Congratulated Public Works Agency Executive Director Raul Godinez, III and staff for receiving awards. Councilmember Reyna: • Acknowledged Councilmember Martinez for various presentations today including on Earth Day, and initiative to support our Veterans through "Red Shirt" Day; • Look forward to street naming of Coach Dick Hill Way and encouraged former alumni to attend ceremony; • 13th Annual Cesar E. Chavez Celebration will take place on Saturday, March 30th from 11:30 a.m. to 1 p.m.; will include a Youth Leadership Conference co-sponsored by Community College Trustee Jose Solorio; and • Encouraged all to shop in Santa Ana. CITY COUNCIL MINUTES 10 MARCH 4, 2013 1 0A-10 Councilmember Benavides: • Ceremony for new Street Name in recognition of Coach Dick Hill Way coming soon; • Earlier recognition for Leon and Pearl Raya well deserved; • Commented that City held first town hall meeting on budget; City going out into the community with other issues too including the selection of permanent City Manager; • Request City Attorney review existing policy/permit process for private and public events to make sure City does not discriminate; and • Invited residents to visit City's redesigned website and sign-up to receive public announcements through Nixle. Councilmember Martinez: • Attended Pony League's opening ceremony; impressed with turn-out and thanked City staff for accommodating over 360 participants; • The Bicycle Tree Organization and Parks and Recreation Department hosting "Building a Bicycle Friendly City" event on Saturday, March 8m from 9 a.m. to 3 p.m.; reservations at capacity, but anticipate additional events in the future; • Welcomed new Downtown Santa Ana restaurants "Crave" and "The Grilled Cheese Stop"; • Wished all a Happy Saint Patrick's Day; • Will provide Interim City Manager O'Rourke with tour of Downtown Santa Ana; encouraged colleagues to also provide tour of their respective Ward; • Thanked colleagues and staff for steps taken over the past several weeks to keep City moving forward and for resident's civic engagement. Councilmember Sarmiento: Noted that Sunshine Ordinance requires community meetings on Budget; City held first and was well received; Director on the Orange County Water Board, reported that they will be presenting an award to Nabil Saba, Acting Water Resources Manager in Public Works Agency at the California Municipal Utilities Association Meeting on April 9t" for efforts that improved operations and saved the City over $265,000. Commented on City's recent decision to withhold payment on affordable and low-income housing development projects (Station District, Habitat for Humanity, Vista Del Rio, etc.) was strategic decision to allow developers to challenge California Department of Finance's demand; City fully supports completion of projects. o City Attorney Carvalho indicated that a Temporary Restraining Order on the Santa Ana Station District project was granted by judge and a petition filed by the Public Law Center on behalf of low and moderate income housing applicants. CITY COUNCIL MINUTES 11 MARCH 4, 2013 1 0A-11 Mayor Pro Tern Tinajero: • Echoed comments by Councilmember Martinez on first Santa Ana Pony League's Opening Ceremony; • Little League holding Opening Ceremonies soon; competition between both league's provide better opportunities for the youth in our community and hope to expand both programs; • Reflected on recent (organization) changes in the City; thanked staff for open communication, colleague's support and Interim City Manager's for strong leadership. Mayor Pulido: • Will be attending meeting with Bike Nation on March 5 to discuss bicycle Pod's program; proposed locations in the transportation center, civic center and local schools; • OCTA considering Complete Streets program; supports program; and • Invited residents to request tour of Locally Preferred Alternatives by calling City Hall. REGULAR OPEN SESSION WAS RECESSED TO CLOSED SESSION MEETING AT 7:59 P.M. *Councilmember Martinez left the meeting at 9:30 p.m. and did not return. There were no reportable actions from Closed Session. ADJOURNED - 9:48 P.M. - The next meeting of the City Council is scheduled for Monday, March 18, 2013 at 5:00 p.m. for the Closed Session Meeting immediately followed by the Regular Open Business Meeting at 5:45 p.m. in the Council Chamber, 22 Civic Center Plaza, Santa Ana, California.. Maria D. Huizar, Clerk of the Council FUTURE AGENDA ITEMS • Street Car Project Update and Action items • Update Citywide Classification and Compensation Plan • Ordinance Addressing Homeless Shelters as per Requirements in SB 2 • Contracting Agreement for Specified Police Support Services • Janitorial Services for Police Admin/Jail • Inmate Telephone Services CITY COUNCIL MINUTES 12 MARCH 4, 2013 1 0A-12 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2013 CLERK OF COUNCIL USE ONLY: TITLE APPROVED ISSUANCE OF REQUEST FOR ? As Recommended PROPOSALS FOR CLOSED CIRCUIT ? Amended El Or dinance on 1S` Reading TELEVISION INSPECTION OF ? Ordinance on 2 Reading SANITARY SEWERS ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the Public Works Agency to issue a Request for Proposals to qualified consulting firms to provide closed circuit television sewer inspection services for the City's sanitary sewer collections system. DISCUSSION The City of Santa Ana's sanitary sewer collections system comprises approximately 390 miles of sewer mains, two sewer lift stations, 48,500 sewer laterals, and 8,000 sewer manholes that are used to convey all sewer effluent from the City into the Orange County Sanitation District system. In accordance with the City's Sewer System Management Plan and the State's waste discharge requirements, the City must inspect, assess, and maintain the sanitary sewer system in good repair. Closed circuit television (CCTV) technology is commonly used to assess the condition of sewer mains, identify sewer system deficiencies, and locate areas needing repair. To ensure and maintain a satisfactory level of service and compliance with regulatory mandates, CCTV technology is recommended to assess the City's sanitary sewer collections system. In the past, the City has contracted with consulting firms to provide routine CCTV sanitary sewer inspection services. As a result the City has identified and made numerous sewer repairs. These repairs improve service levels and help prevent sanitary sewer spills from occurring. Staff is requesting City Council approval to issue a request for proposal to qualified firms, soliciting proposals to provide the necessary CCTV inspection services. 1 19C-1 Issuance of Request for Proposals for Closed Circuit Television Inspection of Sanitary Sewers March 18, 2013 Page 2 ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT There is no fiscal impact associated with the issuance of this request for proposal. Raul Godinez II Executive Director Public Works Agency RG/CB Exhibit: 1. Request for Proposal 2 19C-2 REQUEST FOR PROPOSAL (RFP FOR CLOSED CIRCUIT TELEVISION (CCTV) INSPECTION OF SANITARY SEWERS CITY OF SANTA ANA Santa Ana Public Works Department 20 Civic Center Plaza Santa Ana, CA 92702 Cesar E. Barrera, MS., P.E. Principal Civil Engineer Phone (714) 647-3387 cbarrera@santa-ana.org Issue: TBD Proposal Due: TBD Presentation (Perform Sample CCTV Inspection): TBD Projected Award: TBD Exhibit 1 19C-3 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains NOTICE INVITING PROPOSALS NOTICE IS HEREBY GIVEN that proposals will be received from qualified firms to provide Closed Circuit Television (CCTV) Inspection of Sanitary Sewers. Responses to the Request for Proposals (RFP) will be accepted until TBD. If further information is required, contact Cesar E. Barrera at (714) 647-3387 or cbarreraCa--)santa-ana.orq All notifications, updates and addenda will be posted on the City's current RFP Bid page at htti)://www.ci.santa-ana.ca.us/bids-rfl)s. Proposers shall be responsible for monitoring the site to obtain information regarding this solicitation. Failure to respond to required updates may result in a determination of a nonresponsive proposal. MAILED, DELIVERED BY HAND, or COURIERED proposals will be accepted as follows: City of Santa Ana Cesar E. Barrera MS, PE Public Works Agency 3rd Floor, Ross Annex 20 Civic Center Plaza Santa Ana, CA 92702 It is the responsibility of the proposer to ensure that any proposals submitted shall have sufficient time to be received by the City of Santa Ana prior to the proposal due date and time. Questions regarding this Request for Proposals shall be made in writing via e-mail to Cesar E. Barrera at cbarrera(aD-santa-ana.org. The receiving time in the Public Works Agency, 20 Civic Center Plaza, Santa Ana, CA 92702 Third Floor, Ross Annex, will be the governing time for acceptability of proposals Late proposals will NOT be considered and will be returned to proposer unopened. Telegraphic, electronic, and facsimile proposals will not be accepted. ONLY SEALED RFP RESPONSES ARE ACCEPTABLE. DO NOT E-MAIL RFP RESPONSES. DO NOT FAX RFP RESPONSES. 2 19C-4 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains TABLE OF CONTENTS 1. INTRODUCTION II. PERIOD OF CONTRACT III. OPTION OF RENEWAL IV. FISCAL NONFUNDING CLAUSE V. SCOPE OF WORK/SERVICES VI. GENERAL INFORMATION VII. COORDINATION VIII. CONTRACTOR RESPONSIBILITIES IX. LICENSE REQUIREMENTS X. INITIATION/KICK OFF MEETING XI. CITY BUSINESS LICENSE XII. ADDENDA XIII. RULES FOR PROPOSALS XIV. E-MAIL COMMUNICATIONS AND INTERPRETATIONS/CLARIFICATIONS XV. SUBMITTAL INFORMATION AND DEADLINE XVI. SUBMITTAL REQUIREMENTS XVII. CONTRACTOR SELECTION - PROPOSAL AND EVALUATION XVIII. NOTIFICATION AND AWARD XIX. PUBLIC RECORDS EXHIBITS EXHIBIT A- SCOPE OF WORK/SERVICES EXHIBIT B - SAMPLE CONTRACT AGREEEMENT EXHIBIT C - CERTIFICATION AND PROPOSAL FEE SCHEDULE EXHIBIT D - REFERENCES EXHIBIT E - STATEMENT OF UNDERSTANDING EXHIBIT F - CERTIFICATION OF NONDISCRIMINATION BY CONTRACTOR EXHIBIT G - NON-COLLUSION AFFIDAVIT EXHIBIT H - SAMPLE ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL AND GENERAL LIABILITY INSURANCE EXHIBIT I - AUTHORIZED CONTRACTOR SIGNS PAGE 4 4 4 4 4 5 7 8 8 8 8 8 8 8 9 9 11 11 11 12 19 28 31 33 35 38 40 42 3 19C-5 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains 1. INTRODUCTION The City of Santa Ana is located in the County of Orange in Southern California. The City encompasses 27.2 square miles and a population over 325,000 people. The City of Santa Ana Public Works Agency- Water Resources Division oversees and maintains the daily operations of the sewer system. The City of Santa Ana's sanitary sewer collections system comprises approximately 390 miles of sewer mains, two sewer lift stations, 48,500 sewer laterals, and 8,000 sewer manholes that are used to convey all sewer effluent from the City into the Orange County Sanitation District (OCSD) system. In summary, the City of Santa Ana is soliciting proposals from qualified firms to provide Closed Circuit Television (CCTV) Inspection of Sanitary Sewers. This request for proposal (RFP) provides interested qualified firms with the information enabling them to submit a Service Bid Proposal and to provide the services described herein. II. PERIOD OF CONTRACT Unless earlier terminated as allowed for in the agreement, contract term shall be for a period of one year with an option to renew for three additional terms. Upon completion of the selection process, the selected consultant will be awarded a one year contract agreement for a "not to exceed fee" of $400,000.00. The contract term is anticipated to commence after City Council award of this contract and upon receipt and approval of all required bonds and insurance documents. The projected contract award date is TBD and may be adjusted as necessary. All services provided, and all payments made for services, shall be in accordance with the executed contract agreement. III. OPTION OF RENEWAL The City reserves the right to renew the contract for additional one-year periods upon written agreement and mutual consent between the consultant and the City. The contract may be renewed up to three (3) times for a total agreement of up to four (4) years. IV. FISCAL NONFUNDING CLAUSE In the event sufficient budgeted funds are not available for a new fiscal period, the City shall retain the right to notify the provider of such occurrence in writing at least thirty (30) days before the end of the current fiscal period and terminate the contract on the last day of the current fiscal period without penalty or expense to the City. V. SCOPE OF WORK/SERVICES The City of Santa Ana is soliciting proposals from qualified firms for the cleaning, inspection and digital video recording, by means of a closed circuit color television camera (CCTV), of 4 19C-6 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains approximately 300,000 linear feet of sanitary sewer mains and sewer manholes as set forth in Exhibit "A". The purpose of this proposal is to obtain a qualified firm to provide cleaning, inspection, digital sewer video recording, and inspection services of sewer mains and manholes. This work shall include cleaning of sewer mains prior to digital CCTV video recording. This project continues the video inventory of the city's sewer infrastructure. The majority of the work will consist of cleaning and videoing of blocks of sewer mains (approximately 20,000 to 40,000 linear feet). However, some of the work will also consist of inspecting individual sewer mains and sewer manholes on an as needed basis. The sizes of the lines to be inspected vary from 4" to 24" in diameter. The majority of the work will be performed on mains in the 6" through 12" range with more than 50% of the total work being 6". The consultant firm shall be able to conduct CCTV inspection for 6" (lined) sewer mains. The proposal shall be concise, to the point, and sufficient enough to cover all required submittal requirements listed in this RFP and exclude any extraneous materials. This section of Scope of Services describes all processes and outlines the requirements prescribed in this RFP. It is the proposer's responsibility to address each and every item herein. VI. GENERAL INFORMATION A. The term of the contract will begin after the contract award by the City Council and approval of required bonds. B. When determined appropriate, the City will provide information in its possession relevant to preparation of required information in RFP. The City will provide only the staff assistance and documentation specifically referred to herein. C. The proposer shall be responsible for retaining data, records and documentation for the preparation of the required information. These materials shall be made available to the City as requested by the City. D. This RFP does not commit the City to pay costs incurred in preparation of a response to this RFP. All costs incurred in the preparation of the proposal, the submission of additional information, attendance at pre-proposal conference, negotiations with City, and/or any other aspect of a proposal prior to award of a written contract will be borne by the proposer. The City reserves the right to accept or reject the combined or separate components of this proposal in part or in its entirety or to waive any informality or technical defect in the proposal. E. All data, documents and other products used, developed, or produced during response preparation of the RFP will become property of the City. All responses to the RFP shall become property of the City. Proposer information identified as proprietary information shall be maintained confidential, to the extent allowed under the California Public 5 19C-7 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains Records Act. F. The City reserves the right to reject, replace and approve any and all subcontractors. All subcontractor(s) shall be identified in the response to the RFP and the City reserves the right to reject any subcontractor(s). Subcontractors shall be the responsibility of the prime contractor and the City shall assume no liability of such subcontractors. G. The City reserves the right to delayed scheduled dates if it is to the advantage of the City. H. The contractor, at the conclusion of a task shall submit an invoice to the City for the service rendered in that task. The invoice shall include a detailed breakdown on the services, project title and limits, the tasks, the hours, the unit costs, or the hourly rates or percentage completed. 1. Tentative Schedule Issue Request for Proposal (RFP) TBD Perform Sample CCTV Inspection TBD Submit Proposals to City TBD Evaluation & Contractor Selection TBD Award Contract TBD Begin Work TBD J. Compensation: The 300,000 linear feet is an estimate only and is shown solely for the purpose of comparing proposals. The City reserves the right to increase or decrease the amount of any quantity shown without any adjustment in the unit price. Contractor shall be paid the unit price shown in the bid for the amount of work actually completed. In special circumstances, the contractor may be called on to provide emergency video service for a specific problem area or may encounter work that is atypical in nature and requires extra time to complete. In such cases the contractor may elect to invoke an hourly rate for services in lieu of the unit price. The City reserves the right to approve the contractor's request for an hourly rate of compensation and shall base its approval on the following criteria: The hourly rate is designed to allow the contractor fair compensation for work performed that is of an emergency or of an unusual or unexpected nature. Such work would reasonably be expected to consume significantly more time than it would take to complete video in most areas of the City. The hourly rate shall be calculated by taking the unit rate for CCTV Inspection and multiplying that rate by a factor of 400. 6 19C-8 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains 3. The hourly rate may be invoked without the prior approval of the City when the number of feet specified in a single request for CCTV inspection does not exceed 1600. In such cases the contractor may invoke the hourly rate and charge a four-hour minimum. Hourly rate requests for footage exceeding 1600, or for work requiring more than four hours to complete, will be evaluated by the City on a case-by-case basis. 4. Requests for hourly rate compensation based on unexpected conditions must be accompanied by video or other evidence showing the nature of the delay or difficulty. Hourly rate compensation will not be granted for routine blockages and obstructions that often interrupt the progress of work during a typical day of inspecting sewer mains. These occurrences are to be included in the unit price for video. 5. Hourly rates and unit rates for CCTV inspection may not be applied on the same calendar day. 6. Cleaning will be billed on a per unit basis whether or not video services are compensated with hourly rates. However, the City reserves the right to compensate the contractor at an hourly rate for cleaning by using the unit rate for cleaning and multiplying it by 800. Any contractor requests for hourly-rate compensation must be accompanied by either direct supervision of the cleaning operation by the City or by video showing the nature of the extenuating circumstances that necessitated it. Under no circumstances will the contractor be allowed to invoke an hourly rate for cleaning without prior written approval by the City. Hourly rates and unit rates for cleaning may not be applied on the same calendar day. 7. Hourly rates may only be applied during work performed, including actual CCTV inspection or cleaning of mains and manholes, setting up equipment or traffic control and travel time between video locations within the City. It may not be applied to travel time to the first job location or away from the last job location or for activities unrelated to the CCTV inspection or cleaning of City sewer mains or manholes. 8. The City reserves the right to invoke hourly compensation in lieu of unit rate compensation whenever it deems necessary. Such requests will be made prior to the commencement of work. Upon receiving this Request for Proposal (RFP), proposer shall notify the City in writing by email (Attention: Cesar E. Barrera at cbarrera(a)santa-ana.orq) regarding its intent to respond to the RFP. During the proposal period, all questions and requests for additional information must be in writing and emailed (Attention: Cesar E. Barrera at cbarrera(a)santa-ana.orq) TBD. No verbal responses will be given. VII. COORDINATION Coordination by the awarded proposer with the City, other contractors, and agencies will be required to achieve satisfactory and timely delivery of the required services. Coordination may include, but not be limited to, coordination with neighborhood and civic groups, private property owners local and/or state agency boards, and Council meetings. 7 19C-9 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains The City will decide the manner in which the coordination efforts with be conducted. At the City's option, coordination efforts may be performed by the proposer's direct contact, by the proposer acting through the City or by the City only. When coordination efforts require agreements, such agreements shall be coordinated through the City. VIII. CONTRACTOR RESPONSIBILITIES The selected contractor will assume responsibilities for all services in its proposal. The selected contractor shall identify a sole point of contact with the greatest knowledge in regard to the required service operations and contractual matters, including payment of any and all charges resulting from the Agreement. IX. LICENSE REQUIREMENT In accordance with Section 3300 of the California Public Contract Code, the City has determined that the proposer shall possess a license in the classification specified in the Notice Inviting Proposals (If required). X. INITIATION/KICKOFF MEETING The successful proposer will be required to meet with City staff prior to commencement of services or at any time as required by the City, to discuss and agree on operational issues including transition of services and scheduling. XI. CITY BUSINESS LICENSE The selected proposer shall be required to obtain a City of Santa Ana Business license within thirty (30) days of selection and must provide a copy to the City projects manager or designee prior to commencing any work in Santa Ana. XII. ADDENDA Any subsequent changes in RFP from the date of preparation to date of submittal will result in an addendum or amendment by the issuing office. Notification of such addendum or amendment shall be effected by posting on City's website, as set forth in the Notice Inviting Proposals. XIII. RULES FOR PROPOSALS The signer of the RFP must declare in writing that the only person, persons, company, or parties interested in the proposal as principals are named therein; that the proposal is made without collusion with any other person, persons, company, or parties submitting a proposal; that it is in all respects fair and in good faith without collusion or fraud, and that the signer of the proposal has full authority to bind the proposer (Exhibit E). XIV. E-MAIL COMMINICATIONS AND INTERPRETATIONS/CLARIFICATIONS To facilitate the RFP process, proposers are required to monitor the City's Bid and RFP page at http://www.ci.santa-ana.ca.us/bids-rfps. No oral interpretations will be made by the City to any 8 19C-10 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains proposer as to the meaning of requirements identified herein, including the Scope of Services and Terms and Conditions. Every request for such an interpretation must be made in writing via e-mail to the projects manager no fewer than five (5) calendar days prior to the date and time set for the RFP bid due date. Significant interpretations or clarification will be made by an addendum to this RFP, which will be posted to the website. Addenda may become part of the agreement documents. XV. SUBMITTAL INFORMATION AND DEADLINE Proposals are due to the City of Santa Ana, at the date, time, and location set forth on the Notice Inviting Proposals. Faxed and e-mail proposals will not be accepted. XVI. SUBMITTAL REQUIREMENTS The RFP is intended to assess and evaluate each firm's capabilities as they apply to the proposed project. Submittal of Proposal 1) Five (5) copies of the response to the RFP shall be signed by a company official with the power to bind the company. The fee schedule, Exhibit "C" four (4) copies. The response to the RFP and the fee schedule shall be separately bound, sealed, and submitted to the City. The fee schedule shall include the following: a) Rate per foot cleaning b) Rate per foot of sewer main CCTV inspection c) Rate per foot of sewer main data processing d) Rate per sewer manhole (MACP inspection) e) Rate per sewer manhole of data processing f) Hourly and Labor Rates The City reserves the right to increase and or decrease the quantity of cleaning, CCTV inspection, and data processing based upon the unit price specified herein. 2) One (1) copy of the sample work/project submittal on a compact disc, USB flash drive or equivalent. 3) Structure your proposal to include the Scope of Services response, general time implementation schedule, fees/contract price, and exhibits as specified. Each firm must address each of the following items in its response to the RFP: • Statement of Qualifications -In order to maintain uniformity, the Statement of Qualifications must be limited to a MAXIMUM of 20 PAGES (excluding front and back covers, section dividers and exhibits). The page limitation includes all appendices, attachments, and supplemental information. The following information is required: 9 19C-11 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains 1. Cover Letter - A letter signed by a principal or authorized representative who can make legally binding commitments for the entity. 2. Firm and Personnel Experience: A profile of the firm's experience, including the names and experience of personnel and sub-consultants who will be providing services. At a minimum, this should include the project manager/principal agent, associates in charge when project manager/principal agent is unavailable, key personnel, and an organization chart identifying only those who will perform work for the proposed project and the percentage of each individual's time devoted to this project. The project manager/principal agent shall be the primary contact person to represent your firm and will be the person to conduct the presentation, if invited for an interview. 3. Implementation Plan: Proposer shall submit a general description of the deliverables and timelines to complete the project. Be sure to include detailed information regarding cleaning, videoing, as well as what will be required to adapt the existing software and other procedures to accommodate the City's database requirements. • EXHIBIT C - PROPOSERS STATEMENT AND PROPOSAL FEE SCHEDULE A fee envelope including proposer's cost proposal shall be submitted concurrently but under separate cover with the technical proposal. Costs should be indicated by the respective tasks described in Section XVII of this document. A total cost for the entire project shall be indicated. No fee envelopes shall be opened by City until the final ranking of proposals has been completed. • EXHIBIT D - REFERENCES - The Proposer shall submit a list of agencies, past and present, for which you have provided work similar to that identified in this RFP (Exhibit A) for the last 5 years. • EXHIBIT E - PROPOSERS STATEMENT • EXHIBIT F -CERTIFICATION OF NONDISCRIMINATION BY CONTRACTOR • EXHIBIT G- RESPONSIBLE PROPOSER- SUPPLEMENTAL QUESTIONNAIRE • EXHIBIT H - NONCOLLUSION AFFIDAVIT • EXHIBIT I - SAMPLE ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY • The proposal must be completely responsive to the RFP. Any exceptions to the requirements of this RFP must be included in the proposal. Such exceptions must be included as a separate element of the proposal entitled "Exceptions and Deviations." The Executive Director, in his sole and absolute discretion, may authorize or deny any exceptions. 10 19C-12 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains • The City reserves the right to reject any or all proposals submitted and no representation is made hereby that any contract will be awarded pursuant to this RFP or otherwise. The City reserves the right to waive minor inconsistencies in submitted Proposals. XVII. CONTRACTOR SELECTION- PROPOSAL AND EVALUATION The criteria for evaluating the proposals submitted will take the following items into consideration: qualifications, abilities, sample project, and responsiveness to the RFP. The proposals will be reviewed by a committee of City staff. The committee will evaluate the proposers based on the response to the RFP and the City evaluation criteria. A final score will be calculated for each submitted proposal and used to rank the proposers. The committee may interview the top tier of proposers and recommend award of the contract to the proposer who will provide the best quality service at minimum cost to the City. The City reserves the right to negotiate pricing and for additional terms. City reserves the right to begin negotiations and enter into a contract without interview or further discussions. The committee will rank the proposers and select the top three (or top tier based on the natural score break). The committee and or the executive director of Public Works Agency (PWA) will open the fee envelopes after selection of top tier proposers, but prior to interviews (if desired). The Council recommendation will be based on the evaluation score, technical merit and proposed fees of the top tier. XVIII. NOTIFCATION AND AWARD The bid results will not be discussed until after award of contract. Unopened fee envelopes will be returned to the proposers. Project manager may, but is not required to, discuss non-award with interested proposer's. XIX. PUBLIC RECORDS Proposals will become public record after award of contract. Proposer information identified as proprietary information shall be maintained confidential, to the extent allowed under the California Public Records Act. 11 19C-13 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains EXHIBIT "A" SCOPE OF WORK/SERVICES 12 19C-14 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains All work shall be accomplished and in accordance with these provisions as specified herein. SAMPLE PROJECT All proposers responding to this RFP shall be required to perform a sample CCTV inspection of a sewer main segment and submit the sample video, report and database file as part of their response package. Proposers who fail to perform and submit the sample video, report or database file will automatically be disqualified. Proposers responding to this RFP shall make themselves available to perform the sample project on TBD as outlined in this section thereof. The exact date, time and location shall be coordinated through the Water Resources Division. The City Water Resources Division will contact the proposer to coordinate this effort after the City receives the proposers notice regarding its intent to respond to the RFP. The cost of the sample project shall be borne by the proposer as part of the response to the RFP. A. SEWER CLEANING: All sewers shall be cleaned within 24 hours prior to CCTV inspection except as directed otherwise by the Engineer. Cleaning shall include removal of grease, roots, debris and other obstructions to facilitate the CCTV inspection. The contractor firm shall use the appropriate nozzle or cutter head, (i.e. high velocity, water jet, root cutter, etc.), to accomplish the cleaning as required for that particular reach of sewer. Cleaning methods shall be employed to sufficiently clean the pipe so the camera can pass and can fully ascertain and document the structural and operational condition of the pipe. Any costs associated with CCTV inspection work that is necessitated by the contractor's failure to sufficiently clean the main shall be borne entirely by the contractor. The contractor shall use a tablet PC with infraMAP® software, supplied by the City, to record the location of the cleaning operation and the conditions encountered for each section of sewer main that is cleaned. The contractor shall be trained by the City in the use of infraMAP®. At the end of each day that work was performed, the contractor shall synchronize the tablet PC with the City's databases at the City Corporate Yard facilities The tablet PC shall be delivered along with the digital video, logs and other materials when a designated area of work has been completed. The City reserves the right to use both the comprehensiveness and completeness of the cleaning reports along with the cleanliness of the pipe as evidenced by the supplied video to ascertain whether the pipe was cleaned sufficiently. Any costs required to re-clean either an unreported or an insufficiently cleaned main shall be borne entirely by the consultant. B. TELEVISION INSPECTION: 1. The contractor shall visually inspect, digitally encode video in WMV format (or another format if mutually agreed upon) and provide digital logs, in PDF format, of all inspected sewers. The log and video formats shall be approved by the City prior to commencement of work. Only portable hard drives and flash drives are accepted as specified on item #4. 2. The contractor shall use equipment specially designed and constructed for sewer 13 19C-15 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains inspection and video recording. The camera must have light sources of suitable illumination output to provide a clear picture of the entire periphery of pipe. The camera must be able to be rotated to a position that will assure that the total periphery of the sewer is in focus at all times, regardless of the diameter of the pipe being inspected. The camera, transport system, and other components of the video system shall be capable of producing a picture adequate for the purposes of the inspection as stated herein. The adequacy of the proposed equipment, resulting video and the assessment logs shall be demonstrated to the City, if so requested, prior to award of contract. The cost of such demonstration shall be bome by the consultant. 3. A cable footage counter, accurate to within one (1) foot in 1000 feet, shall be used and shall be indicated on the monitor and recorded on the video. The date of inspection, continuous forward and reverse readout of camera distance from referenced access hole, the upstream and downstream manhole with an arrow indicating flow direction (or the database number, run number and direction of flow), the size of the pipe, the name of the street, the time of day and the project or location name as supplied by the City shall be displayed continuously on the monitor and recorded on the video. The color of the overlay information shall be adjusted so that it remains legible throughout the run. The footage relative to the center of the manhole at the start of each run shall be set to accurately reflect a center of manhole starting position of 0.00 feet regardless of where along the pipe and at what footage the run begins. 4. Digitally encoded video shall be compressed with the WMV format with settings specified by the City. Digital video shall be supplied to the City on stand-alone, hard disk drive systems with plug-and-play capable USB connections. Digital video files, Microsoft Access Database files, PDF report files and disk directory naming conventions on consultant-supplied hard disk systems shall be approved by the City prior to the commencement of work. All disks and related components will become property of the City and shall be included in the unit pricing for producing digital sewer video. Every sewer main assessment shall begin with a view of the open manhole and shall proceed uninterrupted in the downstream direction with the insertion of the camera into the manhole with the subsequent sewer main assessment. Recording of video against the flow or passing through interim manholes will only be allowed with prior approval of the City or when it can be shown that conditions made it unfeasible to lift an interim manhole cover or to record with the flow. 6. CCTV inspection, monitoring and recording shall only be performed by technicians that are NASSCO certified with a minimum of two years prior experience. The contractor shall furnish qualification details and sample video for each technician so that their involvement in the project can be approved by the City prior to the commencement of work. The use of a video technician not approved by the City will be considered sufficient cause for the rejection of any related work and any costs associated with re-inspecting shall be at the consultant's expense. 7. During inspection, the operating technician shall, along with an audio record of conditions, log a computerized assessment of the recorded sewer. This assessment shall include the location of all laterals, indicated infiltration, cracks, deflected joints, collapsed sections, ex-filtration, misalignment, roots, deposits, and other conditions or 14 19C-16 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains data pertinent to the physical condition of the sewer. 8. The computerized format shall be provided as a separate Microsoft Access database file for each quantity of digital video specified by the City. The contractor shall provide copies of the logs to the City in PDF format. The Microsoft Access database shall include the following: a) An inspection table listing each run number, the name of the operator, the inspection date, weather conditions, City supplied (the next sequential) database number, address or intersection of the starting manhole, direction of the inspection with respect to the flow, sewer number as supplied by the City, material (VCP, PVC, etc.), diameter of the sewer, length of the sewer, starting manhole ID number and the ending manhole ID number. b) An assessment table listing the run number, starting and ending footage of every observation, applicable assessment code, assessment code translation, additional remarks, starting and ending clock positions of observations where applicable. c) Tabular formats (table names, column names and data types, etc.) shall conform to specifications approved by the City. 9. The contractor shall submit the aforementioned video, and electronic reports summarizing all defects and conditions specified above to the City within 15 calendar days of completion of task. In addition, the contractor shall retain copies of both the digital video and logs, for a term no less than that specified for the agreement and shall make additional copies available to the City if the copies originally delivered to the City are found to be either defective or incomplete. Upon acceptance of the agreement, the contractor acknowledges that given the quantity of video to be provided and the time it will take for the City to review the video after delivery that the City's request for replacement data or video may not be timely. 10. Databases shall be numbered in sequential order with any deliverable video recording reflecting the same unique number differentiating each video. The starting database number will be specified by the City at the beginning of the contract. Barring any notifications by the City to the consultant of changes to the sequence number, the contractor will be required to keep track of the next sequential number and use it on the electronic database files. The City will notify the consultant of any changes to the sequence number prior to requesting additional work. 11. Prior to the commencement of work, the City shall provide the contractor a tablet PC equipped with infraMAP® software. Through the use of the infraMAP® software the contractor will have access to the complete sewer system maps and data including but not limited to: manhole ID numbers, sewer main ID numbers, street names and sewer main attributes. The City, through the infraMAP® software, will designate the locations that are to be inspected. Use of the infraMAP® software by the contractor is required. The City shall train the contractor in the use of infraMAP® as it relates to the documentation of sewer cleaning and inspection activities. 12. If the contractor encounters conditions in the field that do not correspond to those 15 19C-17 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains indicated on the maps, the contractor shall promptly inform the City of the discrepancy. If manholes or terminating cleanouts are encountered that are not shown on the maps, the contractor shall use the next available manhole number as shown on the maps for the video assessment and indicate the location where the manhole was found. The City will incorporate those changes into the maps. The contractor will be required to synchronize the tablet PC daily to ensure that both the City and the contractor have the most up to date information. When the contract is completed the contractor will be required to return the tablet PC to the City. The use of non-standard or incorrectly numbered manholes by the contractor in either the database or on the video overlay as shown on the digital video is cause for rejection of both the digital video and the database in which it is referenced and any costs associated with re-videoing of the main, modifications to the video overlay or rectification of the database that are necessitated by the consultant's failure to use designated naming conventions will be borne entirely by the contractor. 13. Any digital media delivered to the City shall be labeled with the following information: a) Street name or location of sewer main and or sewer manhole if not in a City street, and limits of inspection for the sewer reach included; (e.g., McFadden Avenue sewer between Grand and Standard) or the task name given by the City. b) Date of inspection. c) Database number 14. All digital reports shall be in (pdf) format and contain as a minimum the following information: a) Date and time of inspection b) Name of contractor c) Names of operating technician/inspector d) Pipe size, material, and total length e) Number and street or intersection location and the City designated number for the starting manhole. f) Number and street or intersection location and the City manhole number for the ending manhole. g) Direction of inspection (upstream or downstream). h) The database number. i) NASSCO rating scores including as a minimum: Quick Structural Rating (QSR), Quick Maintenance Rating (QMR), Structural Pipe Rating (SPR), Maintenance Pipe Rating (MPR) and Overall Pipe Rating (OPR). j) Observations, comments, recommendations, laterals referenced to footage counter and video clock (tape counter). 15. All digital reports for sewer manholes shall contain as a minimum the contained information on the Level I of the MACP by NASSCO guidelines and all items listed on item 14 listed above as applied to sewer manholes. 16. At all points within the sewer showing defects, laterals and sewer appurtenances, the consultant shall stop the camera, rotate (up to 360 degrees) and/or tilt the camera lens 16 19C-18 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains to ensure adequate video coverage. All defects shall be rated/scored and logged in accordance with NASSCO guidelines. 17. Each database shall have runs numbered in sequential order starting with one (1). The operator shall proceed to the next run number whenever the camera is withdrawn regardless of the reason, encounters the next manhole, next cleanout or when a run is terminated. Digital video files (one for each run) shall conform to the indexing system with each file being designated by concatenating the database number with the run number (i.e.: 1179-01.WMV would designate the first run on database number 1179). If such naming by the contractor is found to be technically unfeasible, the contractor shall deliver the files, along with any tabular information that would be necessary for the City to automate the file naming process. Any file naming convention that does not conform to the aforementioned requirements is subject to prior approval of the City. 18. Prior to the commencement of work, the contractor shall demonstrate to the City the procedures that shall be used for the inputting of City manhole numbers, run numbers, street names, or any other data that is encoded in the video database and how the quality and uniformity of that data will be guaranteed. 19. The camera shall be stopped and/or backed up to view and analyze conditions that appear unusual or uncommon to a sewer main in good condition. There shall be no loss of video quality at any time. 20. As the video is produced, the technician shall provide an audio narration of the inspection to include identification of the sewer main location, by street intersection location or street address as well as by City manhole number, inspection direction (upstream/downstream) and complete descriptions of the line conditions as they are encountered. The audio portion of the video recording shall be free from electrical interference, feedback, hum, and background noise. 21. If the camera cannot pass the entire sewer reach from its point of insertion, the reach shall be inspected from both directions. The inspection logs for the reach shall include an identification of the nature and location of the blockage. The contractor shall notify the City immediately of any such obstruction so that it may be repaired or mitigated by the City and/or the contractor so that work may proceed. 22. Video runs showing condensation or submersion of the lens, poor or out-of-focus images, poor audio, or otherwise poor image quality shall be cause for rejection and may necessitate re-inspecting at the contractor's expense if the City determines the video run is not of acceptable quality. 23. In special cases, when directed by the City, the contractor shall be responsible for plugging manhole outlets during CCTV inspection. The sewer lines will be in service at the time of inspection. 24. Television inspection of sewer mains with high volumes of flow (pipe running 1/3 full or more) will be done at night between the hours of 10 p.m. and 5 a.m. unless otherwise directed by the City. No adjustment in cost shall be allowed for night work. Notwithstanding, the consultant shall always use whatever mechanical means are available, including modification or changing of the camera wheels or treads, to insure that the image is recorded in an upright, un-rotated position. The City 17 19C-19 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains reserves the right to reject any video where changes in the orientation of the camera could have been corrected by such modifications or by performing the work during periods of low flow. 25. Traffic control for sanitary sewer inspection shall be the responsibility of the contractor and shall conform to the work Area Traffic Control Handbook (WATCH). Flashing arrow boards shall be used on arterial streets. 25. In two (5) working days after being notified to inspect a particular section of sewer main, the contractor shall begin CCTV inspection, and shall diligently pursue that work to completion. The consultant shall perform all sewer manhole assessment inspections services per NASSCO standards by the Manhole Assessment Certification Program (MACP) Level I. Level I (MACP) shall include all information included on Level I (MACP) detailed therein in addition to the, using valid MACP defect codes. The contractor shall be an independent contractor capable of providing experienced, knowledgeable and professional staff. The contractor shall be responsive and maintain excellent working relationships with city residents, businesses, government officials and City staff. The contractor shall provide adequate staffing levels at all times and adhere to established schedules. All vehicles and or towed equipment shall carry "City of Santa Ana Authorized Contractor" magnet sign affixed and visible. See Exhibit "I". The contractor shall comply with all federal, state and local laws, rules, regulations, ordinances, and statutes, including but not limited to these contract documents 18 19C-20 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains EXHIBIT "B" SAMPLE CONTRACT AGREEMENT 19 19C-21 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains THIS AGREEMENT, made and entered into this X day of XXX, XXXX by and between X (hereinafter "Contractor"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS 1. The City desires to retain a Contractor having special skill and knowledge in the field of X. 2. Contractor represents that Contractor is able and willing to provide such services to the City and is licensed by the State of California to provide X. 3. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional X firm. 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: DEFINITIONS (if any) TERMS AND CONDITIONS A. TERM The term of this contract shall commence the date of City Council award and approval of all insurance and bonds, and terminate MONTH, DAY, YEAR, unless earlier terminated as set forth in Section H, below. City is hereby granted an option to renew for up to X (X) additional XX (XX) - year periods on the terms and conditions set forth herein. Said options shall be exercised in writing at least thirty (30) days prior to the end of the initial term or any extension thereof. B. CONTINUED FUNDING In the event funding is not allocated for parking control enforcement services during the annual budget approval process, the City shall notify the provider of such occurrence in writing at least thirty (30) days before the end of the current fiscal period, and contract shall terminate on the last day of current fiscal period without penalty or expense to the City C. COMPENSATION City agrees to pay and contractor agrees to accept as total payment for its services, the rates and charges set forth in contractor's proposal, attached hereto and incorporated by reference. The amount to be expended for services shall not exceed (dollar amount) ($ _) annually during the term of this agreement. 20 19C-22 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains 2. Invoices a. The contractor shall submit a monthly invoice by the fifteenth of the month to the City for the services rendered in the prior month. b. All invoices for work performed under this contract shall be submitted in a format approved by the City. Invoices shall include the following information at a minimum: i. Contractor's invoice number ii. Beginning and ending dates for services City project number and/or name (if applicable) iv. Work site address/location (if applicable) V. Unit cost, subtotals and total for invoice 3. Payment by City shall be made within sixty (60) days following receipt of proper invoice, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance of a professional parking control enforcement services. 4. Price Adjustments The parties may annually agree to an adjustment of charges (not to exceed 2%) commencing at the end of the first year of the agreement, utilizing the month of December statistics and supporting documentation. The two indices which will be used for determining adjustments to services charges shall be the most recent December Consumer Price Index (CPI) for All Urban Consumers for Los Angeles-Anaheim-Riverside CMSA, published by the United States Department of Labor Bureau of Labor Statistics or any relevant successor for the Orange County area (and the December Produce Price Index (PPI). The adjustment formula shall be as follows: The CPI shall be weighted at ninety [00] percent and PPI shall be weighted at ten [10] percent.) 5. Extra Work No new work of any kind shall be considered an extra unless a separate estimate is given for said work and the estimate is approved by the City in writing before the work is commenced. The contractor will be required to provide detailed information of such extra work. Documentation of contract compliance may be required on some occasions. Work performed prior to obtaining written approval of the City shall not be included within the Scope of Work and may not be paid. D. INDEPENDENT CONTRACTOR 21 19C-23 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains Contractor shall during the entire term of this contract, be construed to be an independent contractor and not an employee of the City. This contract 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 manner in which contractor performs the services required by this contract. However, the services to be provided by contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries and wages, employer's Social Security taxes, unemployment insurance, and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. E. INSURANCE Prior to undertaking performance of work under this contract, contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: Commercial General Liability Insurance. Contractor shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal iniury, including death resulting there from and damage to property, resulting from any act or occurrence arising out of contractor's operations in the performance of this agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal iniury, including death resulting therefrom, and property damage, in the total amount of One Million Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers, and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City: and (c) contain standard separation of insured provisions. A sample additional insured endorsement is attached hereto as Exhibit H. 2. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than One Million Dollars ($1,000,000) per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. 3. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, contractor is required to be insured against liability for Workers' Compensation or to undertake self- insurance. Prior to commencing the performance of the work under this contract, contractor agrees to obtain and maintain any employer's liability insurance with limits not less than One Million Dollars ($1,000,000) per accident. 4. If contractor is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than One Million Dollars ($1,000,000) 22 19C-24 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains per claim. The following requirements apply to the insurance to be provided by contractor pursuant to this section: a. Contractor shall maintain all insurance required above in full force and effect for the entire period covered by this agreement. b. Certificates of insurance shall be furnished to the City upon execution of this contract and shall be approved in form by the City Attorney. C. 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. 6. If contractor fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this contract. Such termination shall not affect contractor's right to be paid for its time and materials expended prior to notification of termination. Contractor waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. F. HOLD HARMLESS/ INDEMNIFICATION To the fullest extent permitted by law, contractor shall indemnify, defend and hold harmless City, its officers, agents and employees (collectively, the "indemnified parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a claim; collectively, "claims"), which may arise from or in any manner related (directly or indirectly) to any work performed or services provided under this contract (including, without limitation, defects in workmanship and/or materials) or contractor's presence or activities conducted performing the work (including the negligent and/or willful acts, errors and/or omissions of contractor, its principals, officers, agents, employees, vendors, suppliers, contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable for any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require contractor to indemnify the indemnified parties from any claim arising from the sole negligence or willful misconduct of the indemnified parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this contract. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy 23 19C-25 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains limits do not act as a limitation upon the amount of indemnification to be provided by the contractor. G. NOTICE Any notice, tender, demand, delivery or other communication pursuant to this agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, sent by telefacsimile communication, or via e-mail to the following persons: To City: Clerk of the Council City of Santa Ana 20 Civic Center Plaza (M-30) Santa Ana, CA 92701 Fax 714-647-6956 With courtesy copy to: Public Works Agency - (Division) To Contractor: H. TERMINATION The City reserves the right to terminate the contract as follows: 1. In the event contractor fails or refuses to timely perform any of the provisions of this agreement in the manner required, or if contractor violates any provision of this agreement, contractor shall be deemed in default. City shall provide written notice of such default to contractor's project manager. Contractor shall cure said default within a period of two (2) working days. If such cure is not completed in a timely manner, City may assess liquidated damages or terminate the agreement forthwith by giving written notice to contractor's project manager. City may, in addition to the other remedies provided in this agreement or authorized by law, terminate this agreement by giving written notice of termination. Contractor shall be responsible for all costs incurred by City, including replacement costs of equipment and labor required to provide service during contractor's default. In the event of such termination for cause, City shall pay contractor that portion of compensation specified in the agreement that is earned and unpaid prior to the effective date of termination. Contractor shall not be entitled to any compensation for lost profits it terminated for cause. 2. This agreement may be terminated without cause by City upon thirty (30) days written notice delivered to the contractor either personally or by mail. Upon termination, City shall pay to contractor that portion of compensation specified in the agreement that is earned and unpaid prior to the effective date of termination. 3. In addition to, or in lieu of, 24 19C-26 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains remedies provided in this agreement or pursuant to law, City shall have the right to withhold all or a portion of contractor's compensation for contract services if, in the judgment of the projects manager or designee, the level of service falls below appropriate standards and/or contractor fails to satisfactorily perform contract services. City shall have the right to retain funds withheld until the projects manager or designee determines that contract services are performed as well and as frequently as required by this agreement. CONTRACTOR OPTION FOR TERMINATION The contractor may request termination of the contract when conditions during the contract make it impossible to perform or when prevented from proceeding with the contract by act of God, by law or official action of a public authority or in the event on nonpayment by the City. Such request will require one-hundred eighty (180) days written notice prior to contract termination date requested. In the event of nonpayment of undisputed sums by the City, contractor shall give the City thirty (30) working days to cure the alleged breach. J. LIQUIDATED DAMAGES If the City determines that the contractor breaches its promise to provide services in compliance with the Terms and Conditions of applicable laws and regulations, and the specifications set forth above, it would be impracticable and extremely difficult to determine the damage to City arising from such breach. Therefore, in the event of contractor's breach, contractor shall pay to City the sum of $XXX per hour/ per occurrence (see narrative) for such breach, in addition to any cost, fines, etc. levied against the City. K. EMPLOYMENT OPPORTUNITIES FOR SANTA ANA RESIDENTS Contractor shall solicit and advertise employment opportunities to Santa Ana residents. The City shall inform the contractor of areas to publicize recruitment opportunities, such as work centers and community centers. Such effort and procedure will be provided to the City for review. L. EMPLOYMENT OF DISPLACED SANTA ANA WORKFORCE (Mot necessary if no Santa Ana employees will lose jobs) The contractor shall extend offers of employment to any displaced City of Santa Ana employee for a minimum of one (1) year and at a rate commensurate to his/her last base salary amount as an employee of the City of Santa Ana. Thereafter, the contractor may pay according to the contractor normal pay structure. Contractor costs should be amortized over the # year contract period. M. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS 1. Contractor shall perform all requirements under this contract in strict observance of and in compliance with all 25 19C-27 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains applicable environmental, traffic, safety and any other laws, regulations, ordinances, codes and any other legislative or statutory requirements. 2. Contractor warrants that the performance of services under this contract shall be compliant with the current requirements of the (particular relevant statutes andlor regulations) and as it may be amended or updated throughout the term of this contract. N. ASSIGNMENT Inasmuch as this contract is intended to secure the specialized services of contractor, contractor may not assign, transfer, delegate or subcontract any interest herein without the prior written consent of City and any such assignment, transfer; delegation or subcontract without the City's prior written consent shall be considered null and void. 0. JURISDICTION - VENUE This contract has been executed and delivered in the State of California and the validity, interpretation, performance and enforcement of any of the clauses of this contract 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 contract. P. FINES The contractor shall be liable for all violation fines levied against the City by federal, state, or local agencies with regulatory authority related to contractor provided services. Q. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. 26 19C-28 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA CARVAHALO City Attorney By: _ xxxx Assistant City Attorney RECOMMENDED FOR APPROVAL: Raul Godinez III, PE Executive Director PWA Agency CITY OF SANTA ANA Kevin O' Rurke Interim City Manager CONTRACTOR NAME/TITLE Tax I D# 27 19C-29 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains EXHIBIT "C" CERTIFICATION AND PROPOSAL FEE SCHEDULE 28 19C-30 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains Certification - I certify that I have read, understand and agree to the terms and conditions of this Request for Proposals. I have examined the Scope of Services (Exhibit A) and am familiar with the scope of work locations. I am familiar with all the existing conditions and limitation that may impact work requests. I understand and agree that I am responsible for reporting any errors, omissions or discrepancies to the City for clarification prior to the submission of my proposal. Proposal Item Price - Pricing shall be based on an (hourly cost, time and materials basis - see narrative) for services described in Exhibit A. Fee must be inclusive of all costs, including but not limited to, direct and indirect costs for labor, overhead, incidental supplies, travel, mileage, and fuel. Any special materials will be purchased by the contractor only after discussed and authorized by the City projects manager or designee in writing. Closed Circuit Television CCTV Inspection of Sanitary Sewer Mains FEE SCHEDULE TO: CITY COUNCIL OF THE CITY OF SANTA ANA FROM: REQUIREMENT: The undersigned declares that he/she has carefully examined the request for proposal, that he/she has examined the Proposed Scope of Services, and hereby proposes to furnish all material and do all the work required to complete the said work in accordance with said Proposed Scope of Services, for the unit price(s) set forth in the following schedule: Item # Bid Item Unit Quantity Unit Price Amount 1. Sewer Main Hydro Washing LF 300,000 $ $ (Cleaning) 2. Sewer Main CCTV Inspection LF 300,000 $ $ 3. Sewer Main Data Processing LF 300,000 $ $ 4. Sewer Manhole CCTV Inspection EA 1,000 $ $ 5. Sewer Manhole Data Processing EA 1,000 $ $ 6. Hydro-wash (Cleaning) Truck HR 1,000 $ $ 7. CCTV (Video) Truck HR 1,000 $ $ TOTAL $ 29 19C-31 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains LEGAL NAME OF COMPANY BUSINESS ADDRESS PRINTED NAME OF AUTHORIZED AGENT PHONE AND FAX NUMBERS TITLE SIGNATURE OF AUTHORIZED AGENT DATE E-MAIL ADDRESS FEDERAL ID NUMBER (IF APPLICABLE) APPLICABLE) CONTRACTOR LICENSE NUMBER (IF THIS FORM MUST BE COMPLETED AND INCLUDED WITH THE PROPOSAL. PROPOSALS THAT DO NOT CONTAIN THIS FORM WILL BE CONSIDERED NONRESPONSIVE. 30 19C-32 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains EXHIBIT "D" f'Z41=I 0 =1 ? 141 :K 31 19C-33 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains List and describe fully the contracts performed by your firm which demonstrate your ability to provide the supplies, equipment or services included in the scope of the proposal specifications. Attach additional pages if required. The City reserves the right to contact each of the references listed for additional information regarding your firm's qualifications. Reference Customer Name: Address: Contract Amount: Description of supplies, equipment, or services provided: Reference Customer Name: Address: Contract Amount: Description of supplies, equipment, or services provided: Reference Customer Name: Address: Contract Amount: Description of supplies, equipment, or services provided: Contact Individual: Phone Number: Facsimile Number: Year: Contact Individual: Phone Number: Facsimile Number: Year: Contact Individual: Phone Number: Facsimile Number: Year: THIS FORM MUST BE COMPLETED AND INCLUDED WITH THE PROPOSAL. PROPOSALS THAT DO NOT CONTAIN THIS FORM WILL BE CONSIDERED NONRESPONSIVE 32 19C-34 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains EXHIBIT "E" STATEMENT OF UNDERSTANDING 33 19C-35 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains Proposer understands and agrees that this written RFP (or any part thereof specifically designated and accepted by the City of Santa Ana, hereinafter City) shall constitute the entire agreement between proposer and the City only after it has been accepted by the City Council, endorsed by the Clerk of the Council with her signature and official seal noting hereon the action of approval of the Council, signed by the Executive Director or his duly authorized agent, and signed by the City Attorney, denoting his approval of the form of this document, and its execution, and when it or an exact copy of it has been either delivered to proposer or deposited with the United States Postal Service properly addressed to the proposer with the correct postage affixed thereto. Proposer further agrees that upon delivery (as defined above) of the accepted agreement he/she will furnish City all required bonds and certificate of liability insurance within ten (10) days (excluding Saturdays, Sundays and City's legal holidays), or the funds, check, draft, or proposer's bond substituted in lieu thereof accompanying this proposal shall become the property of the City and shall be considered as payment of damages due to the delay and other causes suffered by City because of the failure to furnish the necessary bonds and because it is distinctly agreed that the proof of damages actually suffered by City is difficult to ascertain; otherwise said funds, check drafts, or proposer's bond substituted in lieu thereof shall be returned to the undersigned. Proposer understands that a proposal is required for the entire work, that the estimated quantities set forth in the RFP schedule are solely for the purpose of comparing proposals, and that final compensation under the contract will be based upon the actual quantities of work satisfactorily completed. All terms contained in the specifications, the certification of nondiscrimination by contractors, and the required insurance certificates are to be incorporated by reference into this agreement and are made specifically as part of this RFP. Firm Signed and Printed Name: Title Date THIS FORM MUST BE COMPLETED AND INCLUDED WITH THE PROPOSAL. PROPOSALS THAT DO NOT CONTAIN THIS FORM WILL BE CONSIDERED NONRESPONSIVE. 34 19C-36 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains EXHIBIT "F" CERTIFICATION OF NONDISCRIMINATION BY CONTRACTOR 35 19C-37 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains The undersigned contractor or corporate officer, during the performance of this contract, certifies as follows: The contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without, regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. The contractor shall, in all solicitations or advertisements for employees placed by or on behalf of the contractor; state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. The contractor shall send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. The contractor shall comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. The contractor shall furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his/her books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation, to ascertain compliance with such rules, regulations, and orders. In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, the contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further government contracts or federally assisted construction/services contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965,and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulations, or order of the Secretary of Labor, or as otherwise provided by law. The contractor shall include the portion of the sentence immediately preceding paragraph 1 and the provisions of paragraphs 1 through 7 in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontract or purchase order as the administering agency may direct as means of enforcing such provisions, including sanctions for noncompliance; provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation by a subcontractor or vendor as a result of such direction by the administering agency, the 36 19C-38 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains contractor may request that the United States enter into such litigation to protect the interests of the United States. 2. Pursuant to California Labor Code Section 1735, as added by Chapter 643 Stats. 1039, and as amended, no discrimination shall be made in the employment of persons because of race, religious creed, color national origin, ancestry, physical handicaps, mental condition, marital status, or sex of such persons, except as provided in Section 1420, and any contractor violating this section is subject to all the penalties imposed for a violation of the chapter. Firm Signed and Printed Name: Title Date THIS FORM MUST BE COMPLETED AND INCLUDED WITH THE PROPOSAL. PROPOSALS THAT DO NOT CONTAIN THIS FORM WILL BE CONSIDERED NONRESPONSIVE. 37 19C-39 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains EXHIBIT "G" NON-COLLUSION AFFIDAVIT 38 19C-40 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains NON-COLLUSION AFFIDAVIT (Title 23 United States Code Section 112 and Public Contract Code Section 7106) To the CITY OF SANTA ANA In accordance with Title 23 United States Code Section 112 and Public Contract Code 7106 the proposer declares that the proposal is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the proposal is genuine and not collusive or sham; that the proposer has not directly or indirectly induced or solicited any other proposer to put in a false or sham proposal, and has not directly or indirectly colluded, conspired, connived or agreed with any proposer or anyone else to put in a sham proposal, or that anyone shall refrain from bidding; that the proposer has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the proposal price of the proposer or any proposer, or to fix any overhead, profit, or cost element of the proposal price, or of that of any other proposer, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all statements contained in the proposal are true; and, further, that the proposer has not, directly or indirectly, submitted his or her proposal price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham proposal. Note: The above no collusion affidavit is part of the proposal. Signing this proposal on the signature portion thereof shall also constitute signature of this no collusion affidavit. Proposers are cautioned that making a false certification may subject the certifier to criminal prosecution. Signed State of California, County Subscribed and sworn to (or affirmed) before me on this day of , 20 , by , proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me. Notary Public Signature Notary Public Seal THIS FORM MUST BE COMPLETED AND INCLUDED WITH THE PROPOSAL. PROPOSALS THAT DO NOT CONTAIN THIS FORM WILL BE CONSIDERED NONRESPONSIVE. 39 19C-41 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains EXHIBIT "H" SAMPLE ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY INSURANCE 40 19C-42 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains Insurance Company- This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insured ("additional insured") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insured. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insured, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective _ as a part of Policy # Issued to Countersigned by this endorsement form Named Insured Authorized Representative SAMPLE ONLY 41 19C-43 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains EXHIBIT "I" AUTHORIZED CONTRACTOR SIGN 42 19C-44 City of Santa Ana, PWA RFP - Closed Circuit Television (CCTV) Inspection of Sanitary Sewer Mains The magnetic sign shall be in size (24" x 18") length by width. These shall be plain white color background and black lettering as shown on this sample. The City logo shall be located in the center. CITY OF SANTA ANA AUTHORIZED CONTRACTOR NOW NAME OF CONTRACTOR 43 19C-45 19C-46 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2013 TITLE: REQUEST FOR EXTENSION OF MEASURE M2 COMPREHENSIVE TRANSPORTATION FUNDING PROGRAM FOR GRAND AVENUE WIDENING (PROJECT NO. 081 2, NON-GENERAL FUND) CITY MAN RECOMMENDED ACTION Authorize the Public Works Agency to request a Comprehensive Transportation Funding Program Widening between First and Fourth Streets project. DISCUSSION Grand Avenue is a major north-south arterial highway and Avenue between Firs constructed in several Fourth Streets (Exhibi each direction; raised lanes. CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1" Reading ? Ordinance on 2rd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER one-time, one-year extension of Measure M2 m funding for construction of Grand Avenue transportation facility which is designated as a major t and Seventeenth Streets is a long-term priority project that will be carries in excess of 35,000 vehicles per day. The widening of Grand phases. Phase I includes widening of Grand Avenue between First and t 1). Improvements include widening the street from two to three lanes in landscape medians; curb, gutter, and sidewalk construction; and bike On March 7, 2011, the City Council adopted Resolution 2011-009 (Exhibit 2) authorizing the Executive Director of Public Works to submit an application for construction funding under the Measure M2 Comprehensive Transportation Funding Program (CTFP) for Phase I. In March 2012, the Orange County Transportation Authority Board of Directors approved construction funding for Phase I in the amount of $1,000,000 for Fiscal Year 2012-13. In accordance with CTFP guidelines, the construction contract for this project must be awarded by June 30, 2013. This project involves property acquisitions from various property and business owners, and the Public Works Agency has made a diligent effort to negotiate and complete these acquisitions to meet the funding timeline. While most property acquisitions were completed by October 2012, staff has continued to negotiate in good faith, but an impasse was reached on several properties. Therefore, the City Council adopted Resolutions of Necessity for 202 N. Grand Avenue, 1221 E. Third Street, as well as two billboard signs at the February 4, 2013, Council meeting. 19D-1 Request for Extension of Measure M2 CTFP funding for Grand Avenue Widening March 18, 2013 Page 2 Since the Project utilizes federal funding, the California Department of Transportation and the Federal Highway Administration must certify the property acquisition process. This certification must be completed prior to advertising the construction contract. The process to obtain possession through condemnation now puts the schedule beyond the June 30, 2013, deadline. Given these constraints, staff recommends that the City Council authorize the Public Works Agency to request a one-time, one-year extension of Measure M2 CTFP construction funding for the project to avoid the allocation from lapsing. Right-of-way acquisition is anticipated to be complete in September 2013, and construction is planned to commence in January 2014. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed project has been determined to be adequately evaluated in the previously prepared FEIR (SCH No. 1998051068) approved by City Council in 2002. In accordance with the National Environmental Policy Act, an Environmental Assessment document with a finding of No Significant Impact was prepared for the proposed project and approved by the California Department of Transportation and the Federal Highway Administration in 2011. FISCAL IMPACT There is no fiscal impact associated with this action. 0 Raul Godinez II ` Executive Director Public Works Agency RG/KN Exhibit 1: Location Map Exhibit 2: Resolution 2011-009 19D-2 N (NTS) LEGEND: i i i ! i I .J -IMPROVEMENT AREA SANTA ANA f M" C" 0oLwm L IWIM J& 2W N" ! i i I MEASURE M2 SAM FOR GAIM AM 3M WXX94M (PROECT NO.OW32, NON-GEMPAL FUND) 19D-3 I FIRST STREET FOURTH STREET 19D-4 RESOLUTION NO. 2011-009 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE SUBMITTAL OF IMPROVEMENT PROJECTS TO THE ORANGE COUNTY TRANSPORTATION AUTHORITY FOR FUNDING UNDER THE COMPETITIVE MEASURE M2 REGIONAL TRAFFIC SYNCHRONIZATION PROGRAM BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1: The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The Measure M2 Regional Traffic Synchronization Program targets over 2000 signalized intersections across Orange County to maintain traffic signal synchronization, improve traffic flow and reduce congestion across jurisdictions. B. The City of Santa Ana has been declared by the Orange County Transportation Authority to meet the eligibility requirements to receive revenues as part of Measure M2. C. The City of Santa Ana has a currently adopted a Local Signal Synchronization Plan consistent with the Regional Traffic Signal Synchronization Master Plan as a key component of local agencies' effort to synchronized traffic signals across local agencies' boundary. D. The City of Santa Ana will provide matching funds for each project as required by the Comprehensive Transportation Funding Program Procedures Manual; and E. The City of Santa Ana will not use Measure M2 funds to supplant Developer Fees or other commitments; and F. The City of Santa Ana desires to implement multi-jurisdictional listed below. SECTION 2: The Executive Director of the Public Works Agency is authorized to submit projects for funding consideration under the Combined Transportation Funding Programs. Exhibit 2 Resolution No. 2011-009 Page 1 of 3 SECTION 3: The City Council of the City of Santa Ana hereby requests the Orange County Transportation Authority allocate funds in the amounts specified in the City's application to said City from the Regional Traffic Synchronization Program. Said funds shall be matched by funds from said City as required and shall be used as supplemental funding to aid the City in the implementation the following projects: ---------------------------------------------------------------------------- - - PROJECTS FY , - ------- - - - --------------------------------- ------------- Wamer Ave from Pacific Coast Hwy to Red 11/12 ;Hill Ave - - -- -------------- - --------------------------------- - - - 'Tustin Ave from 1St St to Imperial Hwy 11/12 }----------------- - - --- - --------------------------------------------+- ----------- ;Euclid Ave from 405 Fwy to Imperial Hwy 11/12 ----------------------------------- - ----------------- - --------------------- - -------------- - ----------------------- 'Fairview from SR 55 to SR 22 11/12 ------- 'MacArthur Blvd from Beach Blvd to SR 55 11/12 -------- - --------------------- - ---- - - - -------- - - - ----------------------------------------- --------------- - - - - - - SECTION 4: This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this 7th day of March 2011. APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: aura Sheedy Assistant City Attorney Resolution No. 2011-009 Page 2 of 3 19D-6 YES: Councilmembers: Alvarez Benavides, Bustamante, Martinez, Pulido, Tinaiero, Sarmiento (7) NOES: Councilmembers: None (0) ABSTAIN: Councilmembers: None (0) NOT PRESENT: Councilmembers: None (0) CERTIFICATE OF ORIGINALITY 1, Maria D. Huizar, Clerk of the Council, do hereby certify the attached Resolution No. 2011-009 to be the original resolution adopted by the City Council of the City of Santa Ana on March 7, 2011. Date: q- Clerk of the Council City of Santa Ana Resolution No. 2011-009 Page 3 of 3 19D-8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2013 TITLE: REQUEST TO APPLY FOR SOUTHERN CALIFORNIA EDISON LOCAL GOVERNMENT FUNDING FOR ONLINE PERMITTING CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1s` Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize staff to respond to the Southern California Edison Local Government Strategic Plan Strategies Solicitation to request funding to implement online permitting for the Public Works and Planning and Building Agencies. DISCUSSION The California Public Utilities Commission (CPUC) authorized Southern California Edison (SCE) to provide a second round of funding for energy efficiency strategic plan activities in support of the California Energy Efficiency Strategic Plan. Only those cities that have a partnership with SCE to deliver energy efficiency programs are eligible. The City has had an ongoing partnership with SCE since 2010. The City was awarded the first round of Strategic Plan Strategies funding July 18, 2011, to perform a Green House Gas baseline inventory and energy analysis, an energy chapter for a Climate Action Plan, California Green Building and LEED certification training, and an Energy and Sustainability Consultant to coordinate and assist in implementation of these tasks. This funding is scheduled to be extended to December 31, 2014, to complete the projects. This second round of funding is limited to $200,000. Staff has reviewed approved tasks and has identified online permitting as a fundable option that is also a priority for both the Planning and Building and Public Works agencies. Proposal submission is required by April 1, 2013. Due to the success of the partnership and strategic plan strategies programs, SCE has made new funds available in this funding cycle. Continued participation in these programs shows that Santa Ana has made a commitment to energy efficiency and being a leader in energy management practices. 19E-1 Request to Apply for Southern California Edison Local Government Funding for Online Permitting March 18, 2013 Page 2 ENVIRONMENTAL IMPACT There is no environmental impact associated with applying for Strategic Plan Strategies funding. FISCAL IMPACT There is no fiscal impact associated with applying for Strategic Plan Strategies funding. Raul Godinez II Executive Director Public Works Agency RGICLK Trevino Executive Director Planning & Building Agency Exhibit: Southern California Edison Company, Request for Proposal, Local Government Strategic Plan Strategies Solicitation Phase 3 19E-2 RFPO1-LGSP3 2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T %0L [tit V% (: Al IICQ%lA EDISON Request for Proposal Local Government Strategic Plan Strategies Solicitation Phase 3 Southern California Edison Company RFPO 1-LGSP3: Solicitation 2013-2014 Period Southern California Edison Company is sponsoring this request for proposal under the auspices of the California Public Utilities Commission February 12, 2013 19E-3 RFPO1-LGSP3_2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T TABLE OF CONTENTS 1. INTRODUCTION ..............................................................................................................................3 A. Solicitation Background ................................................................................................. .. 3 B. Defined Terms ............................................................................................................... .. 3 C. Solicitation Purpose and Objectives .............................................................................. .. 4 D. Solicitation Eligibility .................................................................................................... .. 4 E. Disclosure of Affiliations ............................................................................................... .. 5 F. Contract Information ...................................................................................................... .. 5 G. Solicitation Process Overview ....................................................................................... .. 5 H. Disclaimer ...................................................................................................................... ..6 1. Key Dates ....................................................................................................................... .. 6 2. SCOPE OF WORK REQUIRED ................................................................................................... ...8 A. DESCRIPTION OF THE ACTUAL WORK REQUIRED ............................................................ .. 8 B. ELIGIBLE ACTIVITIES ...................................................................................................... 11 C. LOCATION VISITS ............................................................................................................ 12 D. CONSIDERATIONS ............................................................................................................ 12 3. BIDDER'S PROPOSAL FORMAT ............................................................................................... .13 4. PROPOSAL EVALUATION CRITERIA ..................................................................................... .18 5. SUBMISSION OF PROPOSAL ..................................................................................................... .20 A. OPTIONAL PRE-BID CONFERENCE AND QUESTIONS/COMMUNICATIONS ......................... 20 B. PROPOSAL CLARIFICATIONS ........................................................................................... 20 C. RFP QUESTIONS, INQUIRIES AND CONCERNS .................................................................. 20 D. SUBMISSION OF PROPOSAL RESPONSES ........................................................................... 20 APPENDICIES APPENDIX A - DEFINITIONS ........................................................................................................... 24 APPENDIX B - ADDITIONAL SUBMISSION DOCUMENT REQUIREMENTS .......................................... 26 APPENDIX C - BUDGET BREAKDOWN ............................................................................................. 27 TABLES TABLE 1-1: KEY DATES .......................................................................... TABLE 2-1A: STRATEGIC PLAN "SUPPORT MENU" ................................. TABLE 3-1: PROPOSAL CHECKLIST ......................................................... TABLE 3-2: BUDGET COST PER TASK ..................................................... TABLE 3-3: HOURLY RATES .................................................................... TABLE 4-1: WEIGHTED SCORING ............................................................ TABLE 4-2: SCORING CRITERIA SUMMARY ............................................. ...................................... 7 ...................................... 9 .................................... 13 .................................... 16 .................................... 16 .................................... 18 .................................... 19 19E-4 RFPO1-LGSP3_2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T 1. INTRODUCTION A. Solicitation Background Southern California Edison Company ("SCE"), designs, administers and implements a large portfolio of energy efficiency (EE) programs for its customers. SCE utilizes a variety of entities including local governments, and regional governments referred to in this request for proposal (RFP) to accomplish certain "tasks" related to the design, analysis, planning, and operation of these programs. These entities may submit bids in response to the RFP as "Bidders." SCE initiated phases 1 and 2 of the local government EE strategic plan support solicitation during 2010 and these phases are currently under implementation. The California Public Utilities Commission's ("CPUC" or "Commission") recent final decision in November 2012 approving EE programs and budgets for 2013 through 2014 as a result of SCE's application for funding of EE programs, provides for the resources to fund this new "phase 3" solicitation for the years 2013 through 2014. SCE is seeking qualified Bidders to submit proposals to conduct strategic plan activities centered on EE and addressing the strategies and related local government goals found in the Commission's California Long-Term Energy Efficiency Strategic Plan' (CEESP). SCE's goal is to implement CEESP efforts. CEESP support activities should focus on long- term change that will result in permanent, sustainable energy savings, drawing on the unique capabilities of the individual city or county governments, regional governments representing one or more local jurisdictions that are currently participating in SCE's Local Government or Institutional Partnerships. The ultimate goal for Bidders in relationship to CEESP support is to embed and institutionalize EE in their policies, programs, and processes and to establish a culture within entities. B. Defined Terms Capitalized terms not otherwise defined in this RFP will have the meaning ascribed to them and established in Appendix A (Definitions) and Appendix B (Additional Submission Documents Requirements), including Item B.5 (SCE General Terms and Conditions) contained therein (Ts&Cs), all of which are attached hereto and incorporated herein by reference. 1 For a copy of the CEESP, please go to http://www.cpue.ca.gov/PUC/energy/Energy+Efficiency/eesp/ 1. Introduction 19E-5 Page 3 -5 RFPO1-LGSP3 2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T C. Solicitation Purpose and Objectives The purpose of this RFP is for SCE to select multiple Bidders to accomplish certain Work based on written agreement(s) or contract(s) (Contract(s)). The primary objective of this solicitation is to request Bidders that are currently participating in SCE's Local Government or Institutional Partnership Programs to provide innovative idea proposals for the items listed in Table 2.1A (Strategic Plan "Support Menu ") to develop and implement local government strategic plan support strategies during the years 2013 through 2014. D. Solicitation Eligibility SCE is seeking qualified Bidder proposals to provide support services as described in this RFP. Bidder(s) will be, at a minimum, individuals, and organizations with knowledge and experience in performing the work they are bidding (the Work). It is within SCE's sole judgment to determine whether a Bidder's qualifications meet the criteria for selection as set forth in this RFP. SCE may choose to reject, without review, any proposal not meeting such criteria. SCE will accept proposals from individual city or county governments or from regional governments representing one or more local jurisdictions that are currently participating in SCE's Local Government or Institutional Partnership Programs. SCE will consider Bidder proposals that involve public sector partnerships with private entities; however, the submission of the proposal must clearly come from a local government organization, as described above. Following SCE's selection of proposals, the SCE-selected Bidders will be required to execute a Contract with SCE containing a statement of work and applicable terms and conditions. The Contract's terms and conditions will be more comprehensive than those contained in the applicable partnership agreement (if one exists) with SCE in order to define and govern the incremental role of the government jurisdiction as a consultant to the partnership for the Work proposed hereunder. SCE reserves the right to reconsider the selection of any Bidder who objects or refuses to sign the offered Contract. NOTE: Non-profit organizations implementing local government partnerships are NOT eligible to submit a proposal. 1. Introduction 19E-6 Page 4 -6 RFP0l-LGSP3_2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T E. Disclosure of Affiliations The Commission Decision (D).05-01-055 prohibited any transaction between a California investor owned utility ("IOU") and, individually, Pacific Gas and Electric ("PG&E"), Southern California Gas Company ("SCG"), San Diego Gas and Electric ("SDG&E"), and SCE and any IOU Affiliate2 program implementer for EE. All potential Bidders will disclose any and all affiliations with any IOU. Such disclosure will be included in the response hereto. Failure to accurately respond will result in immediate rejection and disqualification from this RFP. F. Contract Information The total amount of the combined Contracts planned in this solicitation is $3,500,000. The maximum funding awarded per city or county for this solicitation is $200,000. G. Solicitation Process Overview The following is key information that applies to the RFP process: 1. SCE invites all Bidders to attend an optional Bidder's conference (via Webcast) on February 26, 2013, in order to ask questions and review details of this RFP. 2. SCE will accept written questions from Bidders concerning this RFP until March 5, 2013, no later than 2:00 p.m. Pacific Standard Time (PST). 3. SCE will provide written responses to Bidders' questions and make the responses available on the Proposal Evaluation and Proposal Management Application (PEPMA) by March 12, 2013. See Section 5(D)(3) for more information. 4. Proposals are due to SCE April 1, 2013, no later than 5:00 p.m. PST. 5. Proposals submitted for consideration must be: • Enclosed in a sealed envelope marked "proposal," with the title of the Work and the bid number clearly written on the outermost envelope; and • Delivered to the address stated in the Proposal Request Document (see Appendix B, Item B.1) on or prior to the due date and time set forth above. 6. Evaluation Process Overview z Refer to Appendix A. Definitions. 3 This amount may change depending on the final determination of awards for the Phase 3 strategic solicitation. 1. Introduction 19E-7 Page S 9E-7 RFPO1-LGSP3 2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T • SCE will evaluate a Bidder's proposal by first determining whether the information provided meets SCE's threshold requirements ("Threshold"). If a Bidder's proposal passes the Threshold assessment, the proposal will receive further consideration based upon a team review and scoring by qualified SCE and its consultant personnel. • Refer to Section 5, (Submission of Proposao for additional requirements of the RFP process. H. Disclaimer SCE reserves the right, at its sole and absolute discretion, to modify, suspend or withdraw any and all aspects of this RFP or the selection process; obtain additional information from any Bidder; waive any defects as to form or content of the RFP or any other document or procedure used in the selection process; negotiate with Bidders to resolve technical or contractual issues; reject any and all responses or proposals submitted; accept or reject any Bidder for entry into any Contract; and to terminate negotiations at any time. SCE will not have accepted any response or proposal, or be bound by any term thereof, until an authorized representative of SCE executes a definitive Contract. Responding to this RFP does NOT commit or obligate SCE in any way to pay or reimburse any costs incurred by any Bidder in the preparation of any response to this RFP or proposal, or to procure or contract for any services whatsoever (including any Work or any portion thereof). 1. Key Dates SCE reserves the right to amend the schedule and key dates of the RFP events/activities as it deems necessary. Should there be changes to the schedule timeline, SCE will notify Bidders in writing of the updates in a timely manner when and if SCE, in its sole and absolute discretion, requires such a change. In the event of a schedule change, SCE's procurement agent will notify by email all Bidders of such change. The following Table 1-1 (Key Dates) lists the key RFP events and their corresponding dates: 1. Introduction 19E-8 Page 6 -8 RFPO1-LGSP3_2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T TABLE 1-1: KEY DATES Key Event Key Date RFP Release 2/12/2013 *Pre-Bid Conference 2/26/2013 From 9:00 a.m. to 12:00 p.m. (PST). Bidder Questions Due 3/5/2013, 2:00 p.m. (PST) SCE's Answers to Bidder's Questions Due 3/12/2013 Bidder's Proposal Due 4/1/2013, 2:00 p.m. (PST) Notification of Proposal Selection, Subject to Negotiations 4/26/2013 LGP Program Full Commencement Full program commencement upon CPUC approval 1. Introduction Page 7 19E-9 RFPO1-LGSP3 2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T 2. SCOPE OF WORK REQUIRED A. DESCRIPTION OF THE ACTUAL WORK REQUIRED All Bidders' proposed Work must address the goals stated in the CEESP. Bidders must address EE consistent with the policy requirements as put forth by the Commission. SCE intends the solicitation process under this RFP to generate innovative ideas based upon the Strategic Plan "Support Menu" (see Table 2.1A). Therefore, SCE may select proposals that include activities and/or technologies that SCE has not specifically identified in this RFP document. The actual final Scope of Work will be determined in consultation with an SCE representative prior to the issuance of a Contract. Selected Bidder(s) will provide for the following: CEESP Strategic Plan: Bidder's proposals will be for Work in one (1) or more of the following local government strategic support (Strategy) categories as listed in Table 2.1A. Each Strategy, as listed in Table 2.1A, has associated "Task(s)" representing types of Work that Bidders will perform in implementing CEESP efforts. 1. Bidders will develop proposals around one (1) or more of the Tasks listed in Table 2.1A,and are encouraged to include the following in their proposals: • Within Bidder's proposal, a Task will directly support one (1) or more of the CEESP goals and may consist of one (1) or more activities. • Bidders will detail the scope of Work such that the proposal contains a complete description of the Task(s) to be performed, the intended results or outcomes, the resources required to meet the Work requirements, and the Work budget; • Bidders may submit proposals outside of the Tasks identified in Table 2.1A, but the proposed Work must be strongly supported by the local government's expertise, experience, and rationale of how the activity supports the CEESP and how it will lead to long-term sustainable energy policies/savings that can be replicated by other local entities; and Regional partnerships' (i.e., regional governments may submit proposals for multiple local government partners) proposals may include Tasks that apply to one or more (i.e., multiple) cities within the partnership. In these instances, proposals will reflect each city or county's costs in aggregate. 2. Scope of Work Page 8 19E-10 RFPO1-LGSP3 2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T 2. Bidders will address the development and implementation of policies, processes, templates, models or otherwise replicable activity for one (1) or more of the Tasks described in Table 2.1A. 3. Successful Bidders will implement and complete proposed activities within the two (2) year period of 2013 through December 2014 that directly support EE and will be sustainable beyond the year 2014 as a standard and permanent practice of the local government, and which will not be dependent upon continued funding derived from Public Purpose Program Charges. TABLE 2-lA: STRATEGIC PLAN "SUPPORT MENU" Strategic Plan Goal 1: Local governments .: adoption and implementation of "reach" codes stronger than Title ' r r• mandatory and voluntary bases. Adopt codes, ordinances, standards, guidelines or programs that encourage or require building performance exceeding state STRATEGY 1.1 requirements. The focus should be on using existing models, or if there is something new and unique, that it be replicable. Adopt building energy codes more stringent than Title 24's TASKS 1.1.1 requirements, using cost-effectiveness studies by Climate Zone done by the utilities; adopt one or two additional tiers of increasing stringency. Adopt a Green Building policy for municipal development, commercial 1.1.2 development and/or residential development. Develop/adopt point of sale programs such as a Residential or 1.1.3 Commercial Energy Conservation Ordinance. Focus on whole building performance. Change local codes to allow and encourage integration of EE, demand 1.1.4 response, and on-site generation. Develop and adopt programs to encourage energy efficiency such as 1.1.5 one-stop permitting, on-line permitting, separate Zero Net Energy (ZNE) permit processes, density bonuses, or a recognition program. Develop educational programs for local elected officials, building 1.1.6 officials, commissioners, and stakeholders to improve adoption of EE codes, ordinances, standards, guidelines and programs. STRATEGY 1.2 Implement codes, ordinances, standards, guidelines or programs that 2. Scope of Work Page 9 19E-11 RFPO1-LGSP3_2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T encourage building performance exceeding state standards. Implement any of the Tasks under Strategy 1.1 above, through a TASKS 1.2.1 process involving internal and external stakeholders, etc. Strategic Plan Goal 2: support Strong governments for energy code compliance enforcement. Improve processes resulting in increased code compliance through STRATEGY 2.1 education, training, and enforcement practices. Local government staff and contract staff attend code compliance TASKS 2.1.1 workshops offered by the California Energy Commission ("CEC"), utility codes & standards staff, or other local governments with strong compliance records. Redesign enforcement, compliance, plan review processes; introduce 2.12 new forms and templates. Strategic Plan Goal 3: Local governments example own facilities and energy usage practices. Develop a program to track municipal energy usage, such as STRATEGY 3.1 through energy management software and benchmarking of municipal facilities. Develop energy benchmarking policies and procedures to TASKS 3.1.1 enable ongoing benchmarking of all local government facilities. Set up a `utility manager' computer program to track 3.1.2 municipal usage. Identify need for sub-metering to plan, budget and manage bills. Adopt a Climate Action Plan (CAP), Energy Action Plan STRATEGY 3.2 (EAP) for municipal operations. The plan could include setting energy efficiency standards for new and existing facilities, developing a revolving loan fund for EE projects, and so on. Develop/adopt an energy chapter for City/County climate or TASKS 3.2.1 energy action plan. 2. Scope of Work Page 10 19E-12 RFPOI-LGSP3_2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T Adopt a policy to require Leadership in Energy and 3.2.2 Environmental Design (LEED), Energy Star Ratings, or other program standard for municipal facilities. Develop policy for a revolving EE fund for City/County 3.2.3 facilities. Develop commissioning/retro-commissioning policies for 3.2.4 municipal facilities. Strategic Plan Goal 4: Local governments lead their communities with innovative programs for EE, sustainability and climate change. STRATEGY Adopt a CAP, EAP, or adopt EE language into another policy 4.1 document, such as a General Plan, to reduce community greenhouse gas emissions with a focus on EE. Develop a regional template for CAP or EAP. TASKS 4.1.1 Customize CAP with EE language and data. 4.1.2 Update General Plan/Conservation Element with Climate 4.1.3 policies. Provide EE framework and data for other people doing planning. Conduct the EE savings analysis for an annual Greenhouse 4.1.4 Gas inventory for the City/ County. Strategic Plan Goal 5: Local government EE expertise becomes widespread and typical. Local governments participating in activities under Goals 1 - 4 will be increasing their expertise. The activities under Goal 5 are more directly related to the programs operated by the statewide local government associations (ICLEI, ILG and LGC), by regional local government agencies such as the Association of Bay Area Governments and Great Valley Center, and by the Statewide Local Government EE Best Practices Coordinator. B. ELIGIBLE ACTIVITIES This RFP seeks to fund activities that will lead to long-term, sustainable changes as opposed to sport of staffing resources or short-term initiatives that would cease to exist once the funding has ended. 2. Scope of Work 19E-1 3 Page 11 RFP0l-LGSP3 2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T Ineligible activities for this RFP include but are not limited to the following areas: • Funding for incentives: • Installation of EE measures (e.g., lights, controls, motors); • Generation; • Greenhouse gas strategies unrelated to EE; and • Initiatives replicating existing utility program offerings. C. LOCATION VISITS Bidder may be required to attend meetings at SCE's Customer Energy Efficiency and Solar Division ("LEES") headquarters located at 1515 Walnut Grove Avenue, Rosemead, CA 91770, SCE's General Office complex. D. CONSIDERATIONS 1. Work will be performed and completed during the Commission approved 2013 through 2014 EE program funding cycle. 2. Proposed deliverables or outcomes will be completed no later than December 31, 2014. 3. SCE will accept proposals from individual city or county governments or from regional governments representing one or more local jurisdictions that are currently participating in an SCE Local Government or Institutional Partnership Program. 2. Scope of Work 19E-1 4 Page 12 RFPO1-LGSP3_2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T 3. BIDDER'S PROPOSAL FORMAT Table 3-1 (Proposal Checklist) consists of a list of items the Bidder must include in its proposal for SCE to consider such proposals to be "responsive" (i.e., receiving a passing score) in the Threshold assessment; see Section 4 (Proposal Evaluation Criteria) for more information. In addition, Bidders will use Table 3-1 (Proposal Checklist) as the "table of contents" for their proposals. TABLE 3-1: PROPOSAL CHECKLIST Bidder must include a copy of the completed checklist below into its proposal. SECTION 3 Included ? /ill Section/ Page Number ITEM A - BIDDER'S INFORMATION ITEM B - SCOPE OF WORK TO BE PERFORMED 1. INDICATE TASK TO BE PROPOSED 2. APPROACH TO SCOPE OF WORK FOR EACH TASK 3. PROVIDE OUTCOMES (PER TASK) & RESOURCES REQUIRED 4. IDENTIFY DELIVERABLES & MILESTONE DATES ITEM C - RESPONDING TO TASK CRITERIA 1. SECTION 3.C: RESPONSE TO ITEMS 1 THROUGH 8 PER TASK ITEM D - LONG TERM SUSTAINABILITY ITEM E - TOTAL WORK COST Appendix 1-A Table 3.2 - Budget Cost By Task Table 3.3 - Hourly Rates & Compliance checklist Item A. Bidder's Information Provide: • Name of the primary local government or organization; • Name of co-applicant local governments, if applicable; • Main contact name, address, phone number, email; and • Population of each jurisdiction by current census. Item B. Scope of Work to be Performed 3. Proposal Format 19E-1 5 Page 13 RFPO1-LGSP3 2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T Bidder will discuss the approach to the Work for each Task being proposed as described in this RFP including, but not limited to: • Discuss the approach to the Work described in each Task Bidder proposes to perform; • Provide the intended results or outcomes per Task; • Define the resources required to meet the Work requirements; and • Identify deliverables and their milestone dates. Milestones are to be attached to deliverables in a table, such as the one provided as an example below. The final deliverables should also be evidence of the successful completion of CEESP activity. For example, if the CEESP activity is "adoption of building energy codes that are above Title 24," the deliverables should consist of. 1. Documentation of the new building codes, perhaps in the form of the newly published building codes; and 11. Documentation that these new codes have been formally accepted by the local government through council meeting minutes or reports, for example. Deliverables Milestones (Due Dates 1) [Provide time required to implement here] 2) 3) Etc... Item C. Responding to Task Criteria For each Task a Bidder selects to propose from Table 2.1A, Bidders must address per individual Task the following Program "elements" one (1) through eight (8), as listed below. All eight (8) elements are equally important and will require a per Task response as part of a complete proposal. Program Elements 1 through 8 are to address: 1. A specific statement of the concern, gap, or problem that the proposed Work seeks to address, and the likelihood that the issue can be cost-effectively addressed through utility programs. 2. Whether and how the Work will address a CEESP goal or Strategy, and market transformation. 3. Proposal Format 19E-1 6 Page 14 RFPOI-LGSP3_2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T 3. Specific goals, objectives, and end points for the proposed Work supporting the CEESP strategies. 4. New and innovative design partnerships, concepts, or Measure mixes that have not yet been tested or employed. 5. A clear budget and timeframe to complete the proposed strategic support, to obtain results before December 2014. 6. Information on relevant baseline metrics (Baseline) or a plan to develop Baseline data information against which the outcomes of the proposed Work can be measured; 7. Rationale for the value and benefits that will come as a result of the proposed Work, and an approach for qualitatively and/or quantitatively assessing whether or not that value/benefit was realized at the end of the proposed strategic support Work. 8. Use of the proposed Work with other local governments, a concrete strategy to identify and disseminate best practices (Best Practices) and any lessons learned from the proposed work to SCE, and a recommended approach for sharing such Best Practices with other local governments. Item D. Long Term Sustainability Proposed Work must address the strategic initiatives that will result in long-term sustainable changes in processes, behavior, operations, or future actions. Long-term sustainability will not be dependent on continued Public Purpose Program Charge funding beyond the current 2013-2014 EE program funding cycle. Item E. Total Work Cost Bidder must describe the costs to develop and implement the proposed Work as well as include levels of matching funds and origination of funds (i.e., general funds, grants, etc.), if any. The Bidder will also describe the funding requirements to support the EE work beyond the 2013- 2014 funding cycle, and where those funds will originate from. Provide Work budget information for: • Administrative Costs - Typically, program overhead costs, such as staff labor/benefits, employee expenses, and miscellaneous general expenses that are not marketing and outreach (Marketing and Outreach), direct implementation, or incentive/rebate costs. These costs will usually be for labor incurred in preparing invoices and reporting (monthly, semi-annual and ad hoc). 3. Proposal Format Page 15 19E-17 RFPO1-LGSP3 2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T • Marketing and Outreach Costs - Typically, marketing costs such as collateral material, outreach costs such as promotional events, and staff labor associated with incurring marketing costs and activities. • Direct Implementation Costs - Costs related to activities directly tied to, and associated with, the development and the implementation of the proposed Work, including subcontractor costs. • Total Two-Year Budget - Sum of the components listed above. Refer to Appendix C (Budget Breakdown) for a sample budget breakdown worksheet for providing information as required by this Item E. Bidder must provide one complete budget breakdown worksheet per Task selected. For each Task responded to, the Bidder is required to fill in the table provided in Table 3-2 (Budget Cost per Task) below, with information regarding proposed cost per Task budget item. TABLE 3-2: BUDGET COST PER TASK Per Task Budget Budget Item Cost ($) (%) Administrative Costs Marketing and Outreach Costs Direct Implementation Costs Total 100% Table 3-3 (Hourly Rates) below requires information regarding the proposed hourly rate, by staff category. For each Task responded to, the Bidder is required to fill in the information listed in Table 3-3, which includes a list of positions, responsibilities, and the fully burdened hourly rate for each position. TABLE 3-3: HOURLY RATES Staffing Direct Labor Task Assigned Responsibility Hourly Rate (U.S. Dollars) [Position Title #I] [Position Title #2] [Position Title ##] Item F. Supplier Responsibility 3. Proposal Format 1 Page 16 9E-18 RFPO1-LGSP3_2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T SCE's Environment, Health & Safety, Ethics and Compliance, and Supplier Diversity programs are essential to SCE's success and the success of SCE's suppliers and contractors. Per Commission General Order 156, Bidders must supply information on their diversified business enterprise (DBE) status and subcontracting plans. SCE will consider this information in evaluating bids. See Items B.1 (Procurement Proposal Request Document), B.2 (Supplier Responsibility Program Checklist), and B.3 (Diverse Business Enterprise Subcontracting Commitment and Reporting Requirements Form) in Appendix B. Item G. SCE's General Terms and Conditions 1. Substitution: Bidder will NOT substitute, nor use a reference to Bidder's general terms and conditions, in lieu of SCE's Ts&Cs. SCE will consider any proposal received with such substitution as "non-responsive" and subject to disqualification. 2. Exceptions and/or Revisions: SCE will not accept any changes or modifications to SCE's Ts&Cs, unless there are exceptional circumstances and in those situations the Bidder proposing the change risks being marked down in the proposal scoring process or passed over as a result of any proposed changes. Any revisions and/or exceptions proposed by Bidder to SCE's Ts&Cs the Bidder must clearly state in a separate appendix section of Bidder's proposal submittal. Bidder will identify the title of such section as Revisions/Exceptions to the Ts&Cs. Submit all proposed revisions/exceptions in the form of a redlined markup of the existing provision(s) in SCE's Ts&Cs. In addition, Bidder must clearly identify the "exceptional" reason for the proposed change(s) and the cost impact of the change(s). SCE will not consider a proposed change the Bidder has not provided in redlined markup form with the reason for, and cost impact of, the requested change identified. 3. Scoring: SCE scores Bidders based upon all responses, and the nature and extent of exceptions taken to SCE's Ts&Cs are part of the Bidder evaluation criteria. Bidder- proposed changes to SCE's Ts&Cs are discouraged and will impact the Bidder's ultimate selection. 3. Proposal Format 19E-1 9 Page 17 RFPO1-LGSP3_2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T 4. PROPOSAL EVALUATION CRITERIA Bidder proposal evaluations will consist of two (2) parts: Threshold and Weighted. • Part 1 Threshold: SCE will first evaluate the responsiveness criteria on a pass/fail basis. Proposals not including all items listed in Section 3 (Bidder's Proposal Format), Table 3-1 (Proposal Checklist), or any substitution of and/or, reference to a Bidder's own general terms and conditions in lieu of SCE's Ts&Cs will render the Bidders proposal to be considered "non-responsive" and subject to a disqualification or failing score. • Part 2 Weighted: Proposals that receive a passing score on the Threshold evaluation will be further scored according to the criteria and weights listed in Table 4-1 (Weighted Scoring) below, and summarized in Table 4-2 (Scoring Criteria Summary). TABLE 4-1: WEIGHTED SCORING A. Scope of Work to be Performed - 25% Section 3, Item B SCE will evaluate Bidder's approach to the Work and Bidder will receive a higher score if the approach is reasonable and documented to achieve the results required. Bidder must provide specific detailed outcomes and SCE will evaluate the feasibility of achieving those outcomes. Score range: A through F (+/-) B. Responding to Task Criteria - 35% (Section 3, Item C) SCE will evaluate Bidder based upon comprehensiveness and relevancy of response to each Task. Score range: A through F (+/-) C. Lon Term Sustainabili-15% (Section 3, Item D) SCE will evaluate Bidder based upon the degree to which the proposed Work will result in long-term sustainable change, addresses the CEESP, and is comprehensive, innovative, and integrated. Score range: A through F (+/-) D. Total Work Cost -15% Section 3, Item E SCE will evaluate the Bidder's total proposed Work cost where applicable, and Bidder will receive a higher score if the rates (or total proposed Work cost) show reasonableness in relation to the corresponding Task(s). Score range: A through F (+/-) E. Past Performance and Prior Funding -10% SCE will consider any prior Strategic Plan task funding the Bidder may have received and their performance on past Strategic Plan tasks. Bidder will receive a higher score when past performance shows reasonable progress towards task completion.. Score range: A through F (+/-) 4. Proposal Evaluation Criteria 19E-20 Page 18 RFPO1-LGSP3_2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T TABLE 4-2: SCORING CRITERIA SUMMARY Part 1: Threshold Assessment A. Proposal Responsiveness Pass/Fail Part 2: Proposal Scoring (Weighted Assessment) A. Scope of Work to be Performed 25% B. Responding to Task Criteria 35% C. Long Term Sustainability 15% D. Total Work Cost 15% E. Past Performance & Prior Funding 10% TOTAL 100% 4. Proposal Evaluation Criteria 19E-21 Page 19 9E-21 RFPO1-LGSP3 2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T 5. SUBMISSION OF PROPOSAL A. OPTIONAL PRE-BID CONFERENCE AND QUESTIONS/COMMUNICATIONS SCE will hold an optional Bidders' conference (via Webcast) on February 26, 2013, at 9:00 a.m. to 12:00 p.m. PST, to provide Bidders an opportunity to pose questions directly to SCE. Bidders will also have the opportunity to submit written questions. Date: Tuesday, February, 26, 2013. Time: From 9:00 a.m. to 12:00 p.m. PST Webinar Information: Join us for an Online GoToMeeting Webinar. Registration Web Link: Reserve your Webinar seat now at: https://wwwl.gotomeeting.com/register/'148455585 B. PROPOSAL CLARIFICATIONS SCE reserves the right to contact a Bidder, at any time, for clarifications about any part of the Bidder's proposal, including, but not limited to, the proposal, technical documentation, etc. C. RFP QUESTIONS, INQUIRIES AND CONCERNS Bidder's RFP questions received by 2:00 p.m. (PST) on March 5, 2013, will be responded to and posted by SCE on PEPMA by March 12, 2013. Email or mail all RFP questions and communications such as inquiries and concerns in writing regarding this RFP to Jeffery Rodriguez, Contracts Manager: • Email: jeffrey.rodri uez(i?sce.com; or • Mail questions and communications to the address as listed in Section D (Submission of Proposal Responses) below. D. SUBMISSION OF PROPOSAL RESPONSES Bidders must submit both hard copy and electronic versions of their proposals by the due date and times listed below. SCE will reject any proposals received after the due date and time. 1. Time and Place for Submission: Refer to SCE's Proposal Request Document (See Appendix B) for critical information and instructions on submittal of the hard copy of Bidder's proposal document. Below is some key information about the proposal due date, time, and place for submission: Due Date: April 1, 2013 5. Proposal Submission Page 20 19E-22 RFPO1-LGSP3_2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T Time Due: 5:00 p.m. PST To: Jeffery Rodriguez, Contracts Manager Attention: Edison Material Supply Address: Southern California Edison Company 2131 Walnut Grove Avenue, General Office 3, Third Floor P.O. Box 800 Rosemead, CA 91770 Phone: (626) 302-3963 IMPORTANT: Additional SCE submittal requirements are included in Appendix B. Failure to follow the additional submittal requirements in Appendix B will result in rejection of the Bidder's proposal. 2. Hardcopy Proposal Submission-Bidders are required to: • Submit four (4) hard copies double or single-sided, with a minimum font size of 11, with one (1) copy unbound and three (3) copies bound of their proposal, with signed cover sheets, including all submittals required by this RFP. • Submit one (1) electronic copy of their entire proposal, including supporting documents on CD-ROM using Microsoft Office software (e.g., Word, PowerPoint, and Excel). Adobe Acrobat documents (i.e., PDF files) are NOT acceptable. • Enclose the hard copies and the CD of the proposal in a sealed envelope marked "proposal," with the title of the work and the bid RFP number clearly written on the outermost envelope. The proposal must be delivered to the address stated in the Proposal Request Document on or prior to the due date and time. 3. Electronic Copy Proposal Submission: In addition to submitting a hard copy response to this RFP by April 1, 2013 at 5:00 p.m. PST, Bidders must also submit an electronic copy to: https://www.pepma-ca.com,l by April 1, 2013 at 5:00 p.m. PST. The electronic submission does NOT fulfill the hardcopy submission requirements as outlined in this section. Note: The hard copy and electronic copy content must be the same. SCE will immediately disqualify the Bidder's proposal if SCE finds any difference between the electronically submitted proposal and the hardcopy of the proposal. 4. Verification of Receipt of Proposal: It is the Bidder's sole responsibility to ensure SCE receives its proposal at the address specified in this package by the deadline for submission. 5. Proposal Submission Page 21 19E-23 RFPOI-LGSP3-2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T 5. Errors or Omissions: A Bidder discovering an error or omission in its proposal response package may withdraw its package and resubmit a new one, provided it does so before the deadline for submission of proposal responses. 6. RFP Withdrawal: SCE reserves the sole and absolute right to withdraw this RFP at any time before the duly authorized execution of the Contract with Bidders for any reason including, but not limited to, action by the CPUC modifying or withdrawing the Program. In its sole and absolute discretion, SCE may accept or reject any or all proposals, and may accept other than the most cost-effective proposal. SCE will not assume any liability, under any circumstances, to any Bidder submitting a proposal in response to this RFP. 7. Proposal Preparation Costs: Bidder accepts any and all costs and expenses incurred prior to the duly authorized execution to the Contract and will not seek reimbursement of any costs and expenses from SCE. 8. Proposals Not Confidential: After the deadline for receipt of proposals, SCE will not keep confidential either the proposal submitted in response to this RFP or any Contract arising from the RFP. In addition, SCE may submit Bidder proposals to the CPUC for review. Furthermore, SCE will not assume any liability to a Bidder or any other party as a result of any public disclosure of any proposal or Contract. 9. Proposal Review - Clarifications: SCE may, but will not be obligated to, perform clarification interviews or request clarifications in writing. SCE may perform clarification interviews via telephone and will focus on clarifying the information set forth in the proposals, rather than offering Bidders the opportunity to revise their proposals. SCE will not compensate Bidders for the time spent or the costs incurred for the interview(s) or for responding to a written request for clarification. 10. Terms and Conditions of Submission: All proposals, together with all other documentation, submitted in connection with this RFP will become and will remain the property of SCE. SCE will not return proposals or any other documentation submitted in connection with this RFP to the Bidder. By submitting a proposal pursuant to this RFP, Bidders acknowledge and agree (a) they will be fully bound by the terms and conditions of this RFP in submitting their proposals, (b) they have had the opportunity to seek independent legal and financial advice of their own choosing with respect to the RFP and their proposals, (c) they have obtained all necessary authorizations, approvals and waivers, if any, required by them as a condition of submitting their proposals, (d) they are submitting their proposals subject to all applicable laws, and (e) they have not engaged and will not engage in communications with any other Bidder in the RFP concerning the 5. Proposal Submission Page 22 19E-24 RFPO1-LGSP3 2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T price or other economic terms contained in their proposals and have not engaged in collusion or other unlawful or unfair business practices in connection with this RFP. 11. SCE has provided its standard proposal submission requirements and forms together with its General Conditions in Appendix B. Refer to Appendix B for SCE's additional submission requirements. 12. Program Implementation: SCE anticipates the Work in this RFP will begin no later than June of 2013. 5. Proposal Submission 19E-25 Page 23 RFPOI-LGSP3 2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T APPENDIX A - DEFINITIONS By submitting its Proposal, the Bidder acknowledges and agrees to the terms and their definitions contained within this Appendix A. These terms and definitions provide general background information only, as commonly used terms and definitions within the energy industry, and are not intended to be Contract terms. These terms and definitions are also in addition to any terms and definitions that may appear in the RFP. If any conflict exists between a term or definition contained in this Appendix A and a term or definition contained in the RFP, the meaning given to the term or definition within the RFP will control. Definitions of Terms: 1. Affiliate: any person, corporation, utility, partnership, or other entity five percent (5%) or more of whose outstanding securities are owned, controlled, or held with power to vote, directly or indirectly either by an administrator or any of its subsidiaries, or by that administrator's controlling corporation and/or any of its subsidiaries as well as any company in which the administrator, its controlling corporation, or any of the administrator's affiliates exert substantial control over the operation of the company and/or indirectly have substantial financial interests in the company exercised through means other than ownership. For purposes of this definition for "Affiliate," "substantial control" includes, but is not limited to, the possession, directly and indirectly and whether acting alone or in conjunction with others, of the authority to direct or cause the direction of the management of policies of a company. A direct or indirect voting interest of five percent (5%) or more by the administrator, its subsidiaries, or its affiliates in an entity's company creates a presumption of control. 2. Baseline: The initial base metric for comparing the net result of programmatic changes versus what would have happened in the absence of the program services or installation of Measures. 3. Best Practices: The business practices that, when compared to the other business practices used to address a similar business process, produces superior results. For more information regarding energy efficiency Best Practices please go to www.eebestvractices.com. SCE also welcomes Best Practices from other industries. 4. California Public Utilities Commission ("CPUC" or "Commission"): Regulates privately owned electric, natural gas, telecommunications, water, railroad, rail transit, and passenger transportation companies. 5. Contract(s): Agreement entered into between SCE and the selected Bidder which authorizes the Work, states the commercial terms, incorporates by reference SCE's Ts&Cs (or a Appendix A Page 24 19E-26 RFPO1-LGSP3_2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T different set of terms and conditions mutually agreed upon between SCE and the selected Bidder) and a statement of Work, and other referenced documents, all of which form the contract between SCE and the selected Bidder. The term Contract(s) will have the same definition and meaning ascribed to it as Purchase Order(s) under SCE's Ts&Cs. 6. Energy Efficiency (EE): An action, appliance or device that reduces the total electric consumption of a customer, while maintaining a level of service that is the same or better than before. 7. Local Government or Institutional Partnership Programs: A program that coordinates efforts of a utility and a local government or other entity to use the strengths of both parties to achieve energy savings goals. 8. Marketing and Outreach: Communications activities designed to identify, reach, and motivate potential customers to take actions to either learn more about or invest in EE opportunities. 9. Measures: • Specific customer actions that reduce or otherwise modify energy end use patterns. • A service or a product for which the installation and operation at a customer's premises results in a reduction in the customer's on-site energy use, compared to what would have occurred without the service or the installation of such product. 10. Public Purpose Program (PPP) Charge: A charge applied to utility customer bills to support the provision of public benefit programs such as energy efficiency programs, low- income services, renewables, and energy-related research and development. 11. Work: Any and all obligations the successful Bidder will perform for SCE and its customers pursuant to this RFP. Appendix A Page 25 19E-27 RFPO1-LGSP3_2 12 13 69731 2013-2013 Local Govt (2).docx FORM No. 2114T APPENDIX B - ADDITIONAL SUBMISSION DOCUMENT REQUIREMENTS B.1: PROPOSAL REQUEST DOCUMENT Bidder must review and complete the mandatory sections of the Proposal Request Document "Representation" or "Decline to Bid." RFP 104-011303- LGSP3 - Proposal Re( B.2: SUPPLIER RESPONSIBILITY PROGRAM CHECKLIST Bidder must review and complete all fields that indicate a response is required. Supplier Responsibility Prograi B.3: DIVERSE BUSINESS ENTERPRISE ("DBE") SUBCONTRACTING COMMITMENT AND REPORTING REQUIREMENTS FORM Bidder must review and complete the estimations of DBE subcontracting expected. This is only an estimation of future subcontractor spend. DBE Subcont Commit Form 1-24-11.pdf B.4: ENVIRONMENTAL, HEALTH, & SAFETY (EH&S) HANDBOOK Bidder must review the EH&S handbook. EH&S Handbook for Contractors Rev 4 12 B.5: SCE GENERAL TERMS AND CONDITIONS Bidder must review the SCE General Terms and Conditions. MCSA 06 25 12 for EE-. pdf Appendix B Page 26 19E-28 N O z 0 w DC U 0 N 0 U O M O N M O N M M N_ NI M a 0 ?I w 0 F w A i U X Q z w a a d 0 0 b a? CA ?o zs AO U c?S U 0 N U Q) U W b U 'CS a? U a? ed O p A OI! 0 F 4 E A c y O) b0 0 bC A F F F F ao a? ao a? c N N ' N N ? mayy aC aE 69 69 E9 ? f ? ff? 4 ? p ? A ?Oi ?? rp Q? o 0 0 0 H? w a F 'LS b b "O '? i b W W W W W 3 W ? W a a a a s A a a s 7v' 03 Z ,? ?^ q l Z' O. Z Vj ?+ it z M e rTi vv C ?O s0, s a0a aWs F C a°'a C a pG F py F R, F p„ as F ? F a F ? F 44 u ., Sd A ° A + a ? G?0 Cy0 ? O 06 ?+ ••? w r+ N M ? ? ? n y % iii W y W !?/J F H H F F F E? G7 tl-l N bq U N q 19E-29 00 N N bq N O z 0 w U O 'C N O c? U O r-a M O N M O N M M N N I M Q, Qj N V 'C CE C v U Fx:] Y a rs: W c 19E-30 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2013 TITLE: APPROPRIATION ADJUSTMENT ACCEPTING ADDITIONAL FY 2010 HOMELAND SECURITY GRANT FUNDS ?/o CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1s` Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Approve an Appropriation Adjustment recognizing additional FY 2010 Urban Area Security Initiative funds in the amount of $300,000 in revenue account (no. 12514002-52001) and appropriate same in FY 2010 Urban Areas Security Initiative Program Grant expenditure accounts (no. 12514491-various). These projects include the Civic Center video surveillance system, purchasing additional radiation/nuclear detection devises, and purchasing additional connex boxes to store training equipment and supplies. DISCUSSION The United States Department of Homeland Security has developed the Urban Areas Security Initiative (UASI) funding program. UASI provides to local emergency first responders to enhance security and overall preparedness to prevent, respond to, and recover from acts of terrorism. The grant specifically provides funding for anti-terrorism equipment, planning, training, exercises and technical assistance. The City of Santa Ana Police Department currently works with the City of Anaheim, the County of Orange and the cities within the Anaheim/Santa Ana Urban Area to determine current capabilities and needs, and have established goals and objectives for the Anaheim/Santa Ana Urban Area. In FY 2006 the United States Department of Homeland Security combined the Anaheim UASI and the Santa Ana UASI into a single Urban Area. The City of Santa Ana now shares grant administrative responsibilities with the City of Anaheim, annually alternating the function of lead administrative agency. The City of Anaheim is the lead agency for FY 2010 funding and is therefore the UASI Grantee, with the City of Santa Ana designated as the sub-grantee through Anaheim. For this grant period, Santa Ana has agreed to take on additional projects totaling $300,000 that were not included in the original award from Anaheim. These projects include the Civic Center video surveillance system, purchasing additional radiation/nuclear detection devises, and purchasing additional connex boxes to store training equipment and supplies. 20A-1 Appropriations Adjustment FY 2010 UASI March 18, 2013 Page 2 FISCAL IMPACT Approval of the Appropriation Adjustment will increase revenues in the FY 2010 UASI Grant account (No. 12514002-52001) by $300,000 and appropriate same amount in the FY 2010 UASI Grant expenditure accounts (no. 12514491-various). APPROVED AS TO FUNDS AND ACCOUNTS: y Carlo Rojas Acting Chief of Police Police Department ? Nft!?kNp LAC .1 ILL. . &a,4 ,- Francisco Gutierrez Executive Director Finance & Management Services Agency Exhibits: FY 2010 UASI Transfer Agreement 20A-2 !NSURANGt ,"vt t RE01jiRED ,v W?Ff (^14 r ?'R ?EE?; nATF, t SUB-RECIPIENT C) City Contract Number AGREEMENT CITY OF SANTA ANA A-2011-044 20A-3 TABLE OF CONTENTS Section Description Page I INTRODUCTION §101. Parties to the Agreement 3 §102. Representatives of the Parties and Service of Notices 3 §103. Independent Party 4 §104. Conditions Precedent to Execution of this Agreement 4 11 TERM AND SERVICES TO BE PROVIDED §201. Time of Performance 5 §202. Use of Grant Funds 5 §203. Condition of Eligibility 7 III PAYMENT §301. Payment of Grant Funds and Method of Payment 8 IV STANDARD PROVISIONS §401. Construction of Provisions and Titles Herein 9 §402. Applicable Law, Interpretation and Enforcement 9 §403. Integrated Agreement 9 §404. Excusable Delays 9 §405. Breach 10 §406. Prohibition Against Assignment or Delegation 10 §407. Permits 10 §408. Non Discrimination and Affirmative Action 10 §409. Bonds 11 20A-4 TABLE OF CONTENTS Section Description §410. Indemnification §411. Conflict of Interest §412. Restriction on Disclosures §413. Statutes and Regulations Applicable to All Grant Contracts §414. Federal, State, and Local Taxes §415. Inventions, Patents and Copyrights §416. MBENVBE V DEFAULTS, SUSPENSION, TERMINATION, AND AMENDMENTS §501. Defaults §502. Amendments V ENTIRE AGREEMENT §601. Complete Agreement §602. Number of Pages and Attachments Execution (Signature) Page EXHIBITS Exhibit A Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion Lower Tier Covered Transactions Exhibit B Certification Regarding Lobbying Exhibit C Grant Assurances Exhibit D Reimbursement Request for Grant Expenditures u Page 11 11 13 13 20 20 22 23 23 24 24 25 20A-5 Agreement Number: AGREEMENT FOR TRANSFER OR PURCHASE OF EQUIPMENT/SERVICES OR FOR REIMBURSEMENT OF TRAINING COSTS FOR FY2010 URBAN AREAS SECURITY INITIATIVE (UASI) BETWEEN THE CITY OF ANAHEIM AND THE CITYOF BUENA PARK THIS AGREEMENT is made and entered into this 8 day of December, 2010, by and between the CITY OF ANAHEIM, a municipal corporation (the "CITY"), and the CITY OF SANTA ANA (the "SUB-RECIPIENT" or "Contractor"). WITNESSETH WHEREAS, CITY, acting through the Anaheim Police Department in its capacity as a Core City for the Anaheim/Santa Ana Urban Area under the FY10 Urban Areas Security Initiative, has applied for, received and accepted a grant entitled "FY 2010 Urban Areas Security Initiative" from the federal Department Of Homeland Security - Office of Grants and Training, through the State of California Emergency Management Agency, to enhance countywide emergency preparedness (the "grant"), as set forth in the grant guidelines and assurances that are incorporated to this Agreement by reference and located at: http://www.fema.?)rov/pdf/govemment/grant/2010/fy10 hsgp kit.pdf http://www.calema.ca.gov/WebPage/oeswebsite.nsf/ClientOESFileLibrary/Homela nd%20Security%20Fi1es/$fi1e/FY1 OHS GPSupplementGuidance. pdf Copies of the grant guidelines shall be retained in the Anaheim/Santa Ana Grant Office. WHEREAS, this financial assistance is administered by the CITY OF ANAHEIM ("CITY") and is overseen by the California Emergency Management Agency ("Cal- EMA"); and WHEREAS, this financial assistance is being provided to address the unique equipment, training, planning, and exercise needs of large urban areas, and to assist them in building an enhanced and sustainable capacity to prevent, respond to, and recover from threats or acts of terrorism; and WHEREAS, the Anaheim/Santa Ana Urban Area ("ASAUX) consists of 34 cities in Orange County, including the City of Anaheim and the City of Santa Ana, the County of Orange, including the unincorporated area of the County of Orange, Santa Ana School Police, California State University, Fullerton, University of California, Irvine, and the Orange County Fire Authority; and 20A-6 WHEREAS, the Office of Grants and Training ("G&T") awarded a FY10 UASI Grant of $10,218,440 ("Grant Funds") to the CITY OF ANAHEIM, as a Core City, for use in the ASAUA; and WHEREAS, the CITY has designated the Chief of Police and the Anaheim Police Department, Emergency Management Bureau ("UASI Grant Office") to provide for terrorism prevention and emergency preparedness; and WHEREAS, the UASI Grant Office now wishes to distribute FY10 UASI Grant Funds throughout the ASAUA, as further detailed in this Agreement ("Agreement") to the CITY OF SANTA ANA ("SUB-RECIPIENT") and others; WHEREAS, the CITY and SUB-RECIPIENT are desirous of executing this Agreement as authorized by the City Council and the City Manager which authorizes the CITY to prepare and execute the Agreement. NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS: 2 20A-7 I INTRODUCTION §101. Parties to the Agreement The parties to this Agreement are: A. The CITY, a municipal corporation, having its principal office at 200 S Anaheim Blvd, Anaheim, CA 92805; and B. The CITY OF SANTA ANA, a municipal corporation, 20 Civic Center Plaza Santa Ana, CA 90701 §102. Representatives of the Parties and Service of Notices A. The representatives of the respective parties who are authorized to administer this Agreement and to whom formal notices, demands and communications shall be given are as follows: 1. The representative of the City of Anaheim shall be, unless otherwise stated in the Agreement: Ben Hittesdorf, Lieutenant Anaheim Police Department Emergency Management Bureau 425 S Harbor Blvd Anaheim, CA. 92805 Phone: (714) 245-8763 Fax: (714) 245-8098 bhittesdorf@anaheim.net 2. The representative of the CITY OF SANTA ANA shall be: Ken Gominsky, Commander Santa Ana Police Department 60 Civic Center Plaza Santa Ana, CA 92702 Phone: 714-245-8040 kgominsky@santa-ana.org 3 20A-8 B. Formal notices, demands and communications to be given hereunder by either party shall be made in writing and may be effected by personal delivery or by registered or certified mail, postage prepaid, return receipt requested and shall be deemed communicated as of the date of mailing. C. If the name of the person designated to receive the notices, demands or communications or the address of such person is changed, written notice shall be given, in accord with this section, within five (5) business days of said change. §103. Independent Party SUB-RECIPIENT is acting hereunder as an independent party, and not as an agent or employee of the CITY OF ANAHEIM. No employee of SUB-RECIPIENT is, or shall be an employee of the CITY OF ANAHEIM by virtue of this Agreement, and SUB-RECIPIENT shall so inform each employee organization and each employee who is hired or retained under this Agreement. SUB-RECIPIENT shall not represent or otherwise hold out itself or any of its directors, officers, partners, employees, or agents to be an agent or employee of the CITY OF ANAHEIM. §104. Conditions Precedent to Execution of This Agreement SUB-RECIPIENT shall provide copies of the following documents to the CITY OF ANAHEIM, unless otherwise exempted. A. Grant Assurances in accordance with section 415C of this Agreement attached hereto as Exhibit C and made part hereof. B. Certifications Regarding Ineligibility, Suspension and Debarment as required by Executive Order 12549 in accordance with Section 415A12 of this Agreement and attached hereto as Exhibit A and made a part hereof. C. Certifications and Disclosures Regarding Lobbying in accordance with Section 415C of this Agreement and attached hereto as Exhibit B and made a part hereof. SUB-RECIPIENT shall also file a Disclosure Form at the end of each calendar quarter in which there occurs any event requiring disclosure or which materially affects the accuracy of the information contained in any Disclosure Form previously filed by SUB-RECIPIENT. 4 20A-9 II TERM AND SERVICES TO BE PROVIDED §201. Time of Performance The term of this Agreement shall commence on October 27, 2010 and end on April 30, 2013 or upon the final disbursement of all of the Grant Amount (as defined in Section 301) and any additional period of time as is required to complete any necessary close out activities. Said term is subject to the provisions herein. §202. Use of Grant Funds A. CITY may, a) transfer to SUB-RECIPIENT, equipment or services purchased with grant funds and in accordance with grant guidelines set forth above; or, b) reimburse SUB-RECIPIENT for purchase of authorized equipment, exercises, services or training upon receiving prior written approval from CITY or its designee and in accordance with grant guidelines and in full compliance with all of the SUB-RECIPIENT'S purchasing and bidding procedures. SUB-RECIPIENT shall specify the equipment, services, exercises and training to be purchased using the Application for Project Funding. A paper copy of this document will be provided to SUB- RECIPIENT by CITY. In addition, a compact disc with a copy of the document will be provided to SUB-RECIPIENT by CITY. Further, CITY will e-mail a copy of the document to SUB-RECIPIENT. If additional copies of the document are needed, SUB-RECIPIENT may contact the Anaheim Grant Coordinator and it will be provided. B. SUB-RECIPIENT shall provide any reports requested by the CITY regarding the performance of the Agreement. Reports shall be in the form requested by the CITY, and shall be provided in a timely manner. B. The Authorized Equipment List (AEL) is a list of the allowable equipment which may be purchased pursuant to this Agreement and is located at https://www.rkb.us, and incorporated to this Agreement by reference. A copy of the AEL shall be retained in the Anaheim/Santa Ana Grant Office. Unless otherwise stated in program guidance any equipment acquired pursuant to this Agreement shall meet all mandatory regulations and/or DHS-adopted standards to be eligible for purchase using grant funds. SUB- RECIPIENT shall provide the CITY a copy of its most current procurement guidelines and follow its own procurement requirements as long as they meet the minimum federal requirements. Federal procurement requirements for the FY 09 UASI Grant can be found at OMB Circular A-102, Title 44 C.F.R. Part 13.36, and the Office of G&T Financial Management Guide. Any equipment acquired or obtained with Grant Funds: 1. Shall be made available under the California Disaster and Civil 5 20A-10 Defense Master Mutual Aid Agreement in consultation with representatives of the various fire, emergency medical, hazardous materials response services, and law enforcement agencies within the jurisdiction of the applicant; 2. Shall be consistent with needs as identified in the State Homeland Security Strategy and deployed in conformance with that plan; 3. Shall be made available pursuant to applicable terms of the California Disaster and Civil Defense Master Mutual Aid Agreement and deployed with personnel trained in the use of such equipment in a manner consistent with the California Law Enforcement Mutual Aid Plan or the California Fire Services and Rescue Mutual Aid Plan; 4. Shall be subject to the requirements of Title 44, C.F.R. 13.32, 13.33 and Office of G&T Financial Management Guide. For the purposes of this subsection, "Equipment" is defined as nonexpendable property that is not consumed or does not lose its identity by being incorporated into another item of equipment, which costs $5,000 or more per unit, or is expected to have a useful life of one (1) year or more. Items costing less than $5,000, but falling into the following categories are also considered Equipment: (1)electronics communications equipment for stationary or vehicular use, including cellular telephones acquired by lease or purchase, and (2) electronic office equipment, including facsimile machines, copiers, electric typewriters, personal computers (monitors and CPU's), terminals and printers; 5. Shall be used by SUB-RECIPIENT in the program or project for which it was acquired as long as needed, whether or not the project or program continues to be supported by Federal funds. When no longer useful for the original program or project, the Equipment may be used in other activities currently or previously supported by a Federal agency. 6. Shall be made available for use on other projects or programs currently or previously supported by the Federal Government, providing such use will not interfere with the work on the projects or program for which it was originally acquired. First preference for other use shall be given to other programs or projects supported by the awarding agency. 7. Shall be recorded on a ledger. This record must be updated bi- annually and forwarded to the City. The record shall include: (a) description of the item of Equipment, (b) manufacturer's model and serial number, (c) Federal Stock number, national stock number, or other identification number; (d) the source of acquisition of the Equipment, including the award number, (e) date of acquisition; (f) the per unit acquisition cost of the Equipment, (g) records showing 6 20A-11 maintenance procedures to keep the Equipment in good running order, and (h) location and condition of Equipment. Records must be retained pursuant to 44 C.F.R. Part 13.42, and Office of G&T. 8. All equipment obtained under this Agreement shall have an ASAUA identification decal affixed to it, and, when practical, shall be affixed where it is readily visible. 9. A physical inventory of the Equipment shall be taken and the results reconciled with the Equipment records at least once every year. Inventory shall also be taken prior to any UASI, State or Federal monitor visits. 10. SUB-RECIPIENT shall exercise due care to preserve and safeguard equipment acquired with grant funds from damage or destruction and shall provide regular maintenance and such repairs for said equipment as necessary, in order to keep said equipment continually in good working order. Such maintenance and servicing shall be the sole responsibility of SUB-RECIPIENT, who shall assume full responsibility for maintenance and repair of the equipment throughout the life of said equipment. D. Any training paid pursuant to this Agreement shall conform to the guidelines as listed in FY 2010 Homeland Security Grant Program, as set forth above. All training expenses must be pre-authorized by Cal-EMA at http://www.firstrespondertraining.gov/admin. A catalogue of Grantor approved and sponsored training courses is available at http://www.firstrespondertraining.gov/odp_webforms. E. Any exercise paid pursuant to this Agreement shall conform to the guidelines as listed in FY 2010 Homeland Security Grant Program, as set forth above. Detailed Homeland Security Exercise and Evaluation Program Guidance is available at http://hseep.dhs.gov. F. Any planning paid pursuant to this Agreement shall conform to the guidelines as listed in FY 2010 Homeland Security Grant Program, as set forth above. G. Any organizational activities paid pursuant to this Agreement shall conform to the guidelines as listed in FY 2010 Homeland Security Grant Program, as set forth above. §203. Condition of Eligibility As a condition of eligibility to receive UASI funding, SUB-RECIPIENT shall participate annually in the Regional Risk and Capabilities Assessment Project. 7 20A-12 III PAYMENT §301. Payment of Grant Funds and Method of Payment A. CITY may, a) transfer to SUB-RECIPIENT, equipment or services purchased with grant funds; or, b) reimburse SUB-RECIPIENT for the purchase of authorized equipment, exercises, services or training upon receiving prior written approval from CITY or its designee and in accordance with grant guidelines and in full compliance with all of the SUB-RECIPIENT'S purchasing and bidding procedures. SUB-RECIPIENT shall specify the equipment, exercises, services or training to be purchased using the Application for Project Funding. A paper copy of this document will be provided to SUB-RECIPIENT by CITY. In addition, a compact disc with a copy of the document will be provided to SUB- RECIPIENT by CITY. Further, CITY will e-mail a copy of the document to SUB-RECIPIENT. If additional copies of the document are needed, SUB- RECIPIENT may contact the Anaheim Grant Coordinator and it will be provided. Funds may be used for planning, exercises, organizational and training activities, and the purchase of equipment as described in Section 202 above. B. SUB-RECIPIENT shall provide quarterly invoices to the CITY requesting payment and all supporting documentation. Each reimbursement request shall be accompanied by the Reimbursement Request for Grant Expenditures (attached hereto as Exhibit D) detailing the expenditures made by SUB- RECIPIENT as authorized by Section 202 above. For equipment for which SUB-RECIPIENT is requesting reimbursement, all appropriate back-up documentation must be attached to the reimbursement form, including invoices, proof of payment and packing slips. For training reimbursements, SUB-RECIPIENT must include a copy of any certificates issued or a copy of the class roster verifying training attendees, proof that an Cal-EMA tracking number has been assigned to the course, timesheets and payroll registers for all training attendees, and receipts for travel expenses related to the training. For regional project reimbursements, SUB-RECIPIENT must include approval from the lead agency for all submitted invoices. C. Payment of final invoice shall be withheld by the CITY until the SUB- RECIPIENT has turned in all supporting documentation and completed the requirements of this Agreement. D. It is understood that the CITY makes no commitment to fund this Agreement beyond the terms set forth herein. E. Funding for all periods of this Agreement is subject to the continuing availability to the CITY of federal funds for this program. The Agreement may be terminated immediately upon written notice to SUB-RECIPIENT of a loss or reduction of federal grant funds. 20A-13 IV STANDARD PROVISIONS §401. Construction of Provisions and Titles Herein All titles or subtitles appearing herein have been inserted for convenience and shall not be deemed to affect the meaning or construction of any of the terms or provisions hereof. The language of this Agreement shall be construed according to its fair meaning and not strictly for or against either party. The word "Sub-recipient" herein and in any amendments hereto includes the party or parties identified in this Agreement. The singular shall include the plural. If there is more than one Sub-recipient as identified herein, unless expressly stated otherwise, their obligations and liabilities hereunder shall be joint and several. Use of the feminine, masculine, or neuter genders shall be deemed to include the genders not used. §402. Applicable Law, Interpretation and Enforcement Each party's performance hereunder shall comply with all applicable laws of the United States of America, the State of California, and the CITY. This Agreement shall be enforced and interpreted under the laws of the State of California and the CITY. If any part, term or provision of this Agreement shall be held void, illegal, unenforceable, or in conflict with any law of a federal, state or local government having jurisdiction over this Agreement, the validity of the remaining portions of provisions shall not be affected thereby. §403. Integrated Agreement This Agreement sets forth all of the rights and duties of the parties with respect to the subject matter hereof, and replaces any and all previous agreements or understandings, whether written or oral, relating thereto. This Agreement may be amended only by a written instrument executed by both parties hereto. §404. Excusable Delays In the event that performance on the part of any parry hereto shall be delayed or suspended as a result of circumstances beyond the reasonable control and without the fault and negligence of said party, none of the parties shall incur any liability to the other parties as a result of such delay or suspension. Circumstances deemed to be beyond the control of the parties hereunder shall include, but not be limited to, acts of God or of the public enemy; insurrection; acts of the Federal Government or any unit of State or Local Government in either sovereign or contractual capacity; fires; floods; epidemics; quarantine 9 20A-14 restrictions; strikes, freight embargoes or delays in transportation; to the extent that they are not caused by the party's willful or negligent acts or omissions and to the extent that they are beyond the party's reasonable control. §405. Breach Except for excusable delays, if any party fails to perform, in whole or in part, any promise, covenant, or agreement set forth herein, or should any representation made by it be untrue, any aggrieved party may avail itself of all rights and remedies, at law or equity, in the courts of law. Said rights and remedies are cumulative of those provided for herein except that in no event shall any party recover more than once, suffer a penalty or forfeiture, or be unjustly compensated. §406. Prohibition Against Assignment or Delegation SUB-RECIPIENT may not, unless it has first obtained the written permission of the CITY: A. Assign or otherwise alienate any of its rights hereunder, including the right to payment; or B. Delegate, subcontract, or otherwise transfer any of its duties hereunder. §407. Permits SUB-RECIPIENT and its officers, agents and employees shall obtain and maintain all permits and licenses necessary for SUB-RECIPIENT performance hereunder and shall pay any fees required therefore. SUB-RECIPIENT further certifies to immediately notify the CITY of any suspension, termination, lapses, non renewals or restrictions of licenses, certificates, or other documents. §408. Nondiscrimination and Affirmative Action SUB-RECIPIENT shall comply with the applicable nondiscrimination and affirmative action provisions of the laws of the United States of America, the State of California, and the CITY. In performing this Agreement, SUB- RECIPIENT shall not discriminate in its employment practices against any employee or applicant for employment because of such person's race, religion, national origin, ancestry, sex, sexual orientation, age, physical handicap, mental disability, marital status, domestic partner status or medical condition. SUB-RECIPIENT shall comply with Executive Order 11246, entitled "Equal Employment Opportunity," as amended by Executive Order 11375, and as supplemented in Department of Labor regulations (41 CRF Part 60). 10 20A-15 If required, SUB-RECIPIENT shall submit an Equal Employment Opportunity Plan ("EEOP") to the DOJ Office of Civil Rights ("OCR") in accordance with guidelines listed at http://www.ojp.usdoj.gov/ocr/eeop.htm, Any subcontract entered into by the SUB-RICIPIENT relating to this Agreement, to the extent allowed hereunder, shall be subject to the provisions of this § 408. §409. Bonds SUB-RECIPIENT must purchase a performance bond for any equipment item over $250,000 or any vehicle (including aircraft or watercraft) financed with homeland security funds. §410. Indemnification To the fullest extent of the law, SUB-RECIPIENT agrees to indemnify, defend, and hold harmless the City of Anaheim, its officers, agents, employees, representatives and designated volunteers from and against any and all claims, demands, defense costs, or liability of any kind or nature arising out of or resulting from, or in any way connected with SUB-RECIPIENT'S acts, errors or omissions in the performance of SUB-RECIPIENT'S services or use of grant funds under the terms of this agreement. §411. Conflict of Interest A. The SUB-RECIPIENT covenants that none of its directors, officers, employees, or agents shall participate in selecting, or administrating any subcontract supported (in whole or in part) by Federal funds where such person is a director, officer, employee or agent of the subcontractor; or where the selection of subcontractors is or has the appearance of being motivated by a desire for personal gain for themselves or others such as family business, etc.; or where such person knows or should have known that: A member of such person's immediate family, or domestic partner or organization has a financial interest in the subcontract; 2. The subcontractor is someone with whom such person has or is negotiating any prospective employment; or 3. The participation of such person would be prohibited by the California Political Reform Act, California Government Code §87100 et seq. if such person were a public officer, because such person would have a "financial or other interest" in the subcontract. B. Definitions: 1. The term "immediate family" includes but is not limited to domestic partner and/or those persons related by blood or marriage, such as husband, wife, father, mother, brother, sister, son, daughter, father in law, mother in law, brother in law, sister in law, son in law, daughter in law. 11 20A-16 2, The term "financial or other interest" includes but is not limited to: a. Any direct or indirect financial interest in the specific contract, including a commission or fee, a share of the proceeds, prospect of a promotion or of future employment, a profit, or any other form of financial reward. b. Any of the following interests in the subcontractor ownership: partnership interest or other beneficial interest of five percent or more; ownership of five percent or more of the stock; employment in a managerial capacity; or membership on the board of directors or governing body. C. The SUB-RECIPIENT further covenants that no officer, director, employee, or agent shall solicit or accept gratuities, favors, anything of monetary value from any actual or potential subcontractor, supplier, a party to a sub agreement, (or persons who are otherwise in a position to benefit from the actions of any officer, employee, or agent). D. The SUB-RECIPIENT shall not subcontract with a former director, officer, or employee within a one year period following the termination of the relationship between said person and the Contractor. E. Prior to obtaining the CITY'S approval of any subcontract, the SUB- RECIPIENT shall disclose to the CITY any relationship, financial or otherwise, direct or indirect, of the SUB-RECIPIENT or any of its officers, directors or employees or their immediate family with the proposed subcontractor and its officers, directors or employees. F. For further clarification of the meaning of any of the terms used herein, the parties agree that references shall be made to the guidelines, rules, and laws of the SUB-RECIPIENT, State of California, and Federal regulations regarding conflict of interest. G. The SUB-RECIPIENT warrants that it has not paid or given and will not pay or give to any third person any money or other consideration for obtaining this Agreement, H. The SUB-RECIPIENT covenants that no member, officer or employee of SUB-RECIPIENT shall have interest, direct or indirect, in any contract or subcontract or the proceeds thereof for work to be performed in connection with this project during his/her tenure as such employee, member or officer or for one year thereafter. 1. The SUB-RECIPIENT shall incorporate the foregoing subsections of this Section into every agreement that it enters into in connection with this project and shall substitute the term "subcontractor" for the term "SUB-RECIPIENT" and "sub subcontractor" for "Subcontractor". 12 20A-17 §412. Restriction on Disclosures Any reports, analysis, studies, drawings, information, or data generated as a result of this Agreement are to be governed by the California Public Records Act (California Government Code Sec. 6250, et seq.). §413. Statutes and Regulations Applicable To All Grant Contracts A. SUB-RECIPIENT shall comply with all applicable requirements of state, federal, county and SUB-RECIPIENT laws, executive orders, regulations, program and administrative requirements, policies and any other requirements governing this Agreement. SUB-RECIPIENT shall comply with state and federal laws and regulations pertaining to labor, wages, hours, and other conditions of employment. SUB-RECIPIENT shall comply with new, amended, or revised laws, regulations, and/or procedures that apply to the performance of this Agreement. These requirements include, but are not limited to: Office of Management and Budget (OMB) Circulars SUB-RECIPIENT shall comply with OMB Circulars, as applicable: OMB Circular A-21 (Cost Principles for Educational Institutions); OMB Circular A-87 (Cost Principles for State, Local, and Indian Tribal Governments); OMB Circular A-102 (Grants and Cooperative Agreements with State and Local Governments); Common Rule, Subpart C for public agencies or OMB Circular A-110 (Uniform Administrative Requirements for Grants and Other Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations); OMB Circular A-122 (Cost Principles for Non-Profit Organizations); OMB Circular A-133 (Audits of States, Local Governments, and Non-Profit Organizations. 2. Single Audit Act If Federal funds are used in the performance of this Agreement, SUB-RECIPIENT shall adhere to the rules and regulations of the Single Audit Act, 31 USC Sec. 7501 et seq.; and any administrative regulation or field memos implementing the Act. 3. Americans with Disabilities Act SUB-RECIPIENT hereby certifies that it will comply with the Americans with Disabilities Act, 42 USC §§ 12101, et seq., and its implementing regulations. SUB-RECIPIENT will provide reasonable accommodations to allow qualified individuals with disabilities to have access to and to participate in its programs, services and activities in accordance with the provisions of the Americans with Disabilities Act. SUB-RECIPIENT will not discriminate against persons with disabilities or against persons due to their relationship to or association with a person with a disability. Any subcontract entered into by the SUB-RECIPIENT, relating to this Agreement, to 13 20A-18 the extent allowed hereunder, shall be subject to the provisions of this paragraph. 4. Political and Sectarian Activity Prohibited None of the funds, materials, property or services provided directly or indirectly under this Agreement shall be used for any partisan political activity, or to further the election or defeat of any candidate for public office. Neither shall any funds provided under this Agreement be used for any purpose designed to support or defeat any pending legislation or administrative regulation. None of the funds provided pursuant to this Agreement shall be used for any sectarian purpose or to support or benefit any sectarian activity. If this Agreement provides for more than $100,000 in grant funds or more than $150,000 in loan funds, SUB-RECIPIENT shall submit to the CITY a Certification Regarding Lobbying and a Disclosure Form, if required, in accordance with 31 USC §1352. A copy of the Certificate is attached hereto as Exhibit B. No funds will be released to SUB-RECIPIENT until the Certification is filed. SUB-RECIPIENT shall file a Disclosure Form at the end of each calendar quarter in which there occurs any event requiring disclosure or which materially affects the accuracy of any of the information contained in any Disclosure Form previously filed by SUB- RECIPIENT. SUB-RECIPIENT shall require that the language of this Certification be included in the award documents for all sub-awards at all tiers and that all subcontractors shall certify and disclose accordingly. 5. Records Inspection At any time during normal business hours and as often as the CITY, the U.S. Comptroller General, and/or the Auditor General of the State of California may deem necessary, SUB-RECIPIENT shall make available for examination all of its records with respect to all matters covered by this Agreement. The CITY, the U.S. Comptroller General and/or the Auditor General of the State of California shall have the authority to audit, examine and make excerpts or transcripts from records, including SUB-RECIPIENT'S invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. SUB-RECIPIENT agrees to provide any reports requested by the CITY regarding performance of the Agreement. 6. Records Maintenance Records, in their original form, shall be maintained in accordance with requirements prescribed by the CITY with respect to all matters 14 20A-19 covered on file for all documents specified in this Agreement. Original forms are to be maintained on file for all documents specified in this Agreement. Such records shall be retained for a period of three (3) years after termination of this Agreement and after final disposition of all pending matters. "Pending matters" include, but are not limited to, an audit, litigation or other actions involving records. The CITY may, at its discretion, take possession of, retain and audit said records. Records, in their original form pertaining to matters covered by this Agreement, shall at all times be retained within the County of Orange unless authorization to remove them is granted in writing by the CITY. 7. Subcontracts and Procurement SUB-RECIPIENT shall comply with the federal and SUB- RECIPIENT standards in the award of any subcontracts. For purposes of this Agreement, subcontracts shall include but not be limited to purchase agreements, rental or lease agreements, third party agreements, consultant service contracts and construction subcontracts. SUB-RECIPIENT shall ensure that the terms of this Agreement with the CITY are incorporated into all Subcontractor Agreements. The SUB-RECIPIENT shall submit all Subcontractor Agreements to the CITY for review prior to the release of any funds to the subcontractor. The SUB-RECIPIENT shall withhold funds to any subcontractor agency that fails to comply with the terms and conditions of this Agreement and their respective Subcontractor Agreement. 8. Labor SUB-RECIPIENT shall comply with the Intergovernmental Personnel Act of 1970 (42 U.S.C. §§4728-4763) relating to prescribed requirements for merit systems for programs funded under one of the 19 statutes or regulations specified in Appendix A of OPM's Standards for a Merit System Personnel Administration (5 C.F.R. 900, Subpart F). SUB-RECIPIENT shall comply, as applicable, with the provisions of the Davis-Bacon Act (40 U.S.C. §§276a to 276a-7), the Copeland Act (40 U.S.C. §276c and 18 U.S.C. §874), the Contract Work Hours and Safety Standards Act (40 U.S.C. §§327-333), regarding labor standards for federally-assisted construction subagreements, and the Hatch Act (5 USC §§1501-1508 and 7324-7328). SUB-RECIPIENT shall comply with the Federal Fair Labor Standards Act (29 USC §201) regarding wages and hours of employment. None of the funds shall be used to promote or deter Union/labor organizing activities. CA Gov't Code Sec. 16645, et seq. 15 20A-20 9. Civil Rights SUB-RECIPIENT shall comply with all Federal statutes relating to nondiscrimination. These include but are not limited to: (a) Title VI of the Civil Rights Act of 1964 (P.L. 88-352) which prohibits discrimination on the basis of race, color or national origin; (b) Title IX of the Education Amendments of 1972, as amended (20 U.S.C. §§1681- 1683, and 1685-1686), which prohibits discrimination on the basis of sex; (c) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. §794), which prohibits discrimination on the basis of handicaps; (d) The Age Discrimination act of 1975, as amended (42 U.S.C. §§6101-6107), which prohibits discrimination on the basis of age; (e) the Drug Abuse Office and Treatment Act of 1972 (P.L. 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; (f) the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation act of 1970 (P.L. 91-616) as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; (g) §§523 and 527 of the Public Health Service Act of 1912 (42 U.S.C. §§290 dd-3 and 290 ee 3), as amended, relating to confidentiality of alcohol and drug abuse patient records; (h) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. §§3601, et seq.), as amended, relating to non-discrimination in the sale, rental or financing of housing; (i) any other nondiscrimination provisions in the specific statute(s) under which application for Federal assistance is being made; (j) the requirements of any other nondiscrimination statute(s) which may apply to the application; and (k) P.L. 93-348 regarding the protection of human subjects involved in research, development, and related activities supported by this award of assistance. 10. Environmental SUB-RECIPIENT shall comply, or has already complied, with the requirements of Titles II and III of the Uniform relocation Assistance and Real Property Acquisition Policies Act of 1970 (P.L. 91-646) which provide for fair and equitable treatment of persons displaced or whose property is acquired as a result of Federal or federally- assisted programs. These requirements apply to all interests in real property acquired for project purposes regardless of Federal participation in purchases. SUB-RECIPIENT shall comply with environmental standards which may be prescribed pursuant to the following: (a) institution of environmental quality control measures under the National Environmental Policy Act of 1969 (P.L. 91-190) and Executive Order (EO) 11514; (b) notification of violating facilities pursuant to EO 11738; (c) protection of wetlands pursuant to EO 11990; (d) evaluation of flood hazards in floodplains in accordance with EO 11988; (e) assurance of project consistency with the approved State management program developed under the Coastal Zone 16 20A-21 Management Act of 1972 (16 U.S.C. §§1451, et seq.); (f) conformity of Federal actions to State (Clean Air) Implementation Plans under Section 176(c) of the Clean Air Act of 1955, as amended (42 U.S.C. §§7401, et seq.); (g) protection of underground sources of drinking water under the Safe Drinking Water Act of 1974, as amended (P.L. 93-523); (h) protection of endangered species under the Endangered Species Act of 1973, as amended (P.L. 93205); and (i) Flood Disaster Protection Act of 1973 §102(a) (P.L. 93-234). SUB-RECIPIENT shall comply with the Wild and Scenic Rivers Act of 1968 (16 U.S.C. §§1271, et seq.) related to protecting components or potential components of the national wild and scenic rivers system. SUB-RECIPIENT shall comply with the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. §§4801, et seq.) which prohibits the use of lead- based paint in construction or rehabilitation of residence structures. SUB-RECIPIENT shall comply with the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.) which restores and maintains the chemical, physical and biological integrity of the Nation's waters. SUB-RECIPIENT shall ensure that the facilities under its ownership, lease or supervision which shall be utilized in the accomplishment of this project are not listed in the Environmental Protection Agency's (EPA) list of Violating Facilities and that it will notify the Federal Grantor agency of the receipt of any communication from the Director of the EPA Office of Federal Activities indicating that a facility to be used in the project is under consideration for listing by the EPA. By signing this Agreement, SUB-RECIPIENT ensures that it is in compliance with the California Environmental Quality Act (CEQA), Public Resources Code §21000, et seq. and is not impacting the environment negatively. SUB-RECIPIENT shall comply with the Energy Policy and Conservation Act (P.L. 94-163, 89 Stat. 871). SUB-RECIPIENT shall comply, if applicable, with the provision of the Coastal Barrier Resources Act (P.L. 97-348) dated October 19, 1982 (16 USC 3501, et. seq.), which prohibits the expenditure of most new Federal funds within the units of the Coastal Barrier Resources System. 11. Preservation SUB-RECIPIENT shall comply with Section 106 of the National Historic Preservation Act of 1966, as amended (16 U.S.C. §470), EO 11593 (identification and protection of historic properties), and the 17 20A-22 Archaeological and Historic Preservation Act of 1974 (16 U.S.C. §§469a-1, et seq.). 12. Suspension and Debarment SUB-RECIPIENT shall comply with Federal Register, Volume 68, Number 228, regarding Suspension and Debarment, and SUB- RECIPIENT shall submit a Certification Regarding Debarment required by Executive Order 12549 and any amendment thereto. Said Certification shall be submitted to the CITY concurrent with the execution of this Agreement and shall certify that neither SUB- RECIPIENT nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in this transaction by any federal department head or agency. SUB-RECIPIENT shall require that the language of this Certification be included in the award documents for all sub-award at all tiers and that all subcontractors shall certify accordingly. 13. Druq-Free Workplace SUB-RECIPIENT shall comply with the federal Drug-Free Workplace Act of 1988, 41 USC §701, 44 CFR Part 67; the California Drug-Free Workplace Act of 1990, CA Gov't Code §§ 8350-8357. 14. Miscellaneous SUB-RECIPIENT shall comply with the Laboratory Animal Welfare Act of 1966, as amended (P.L. 89-544, 7 USC §§2131, et seq.). B. Statutes and Regulations Applicable To This Particular Grant SUB-RECIPIENT shall comply with all applicable requirements of state and federal laws, executive orders, regulations, program and administrative requirements, policies and any other requirements governing this particular grant program. SUB-RECIPIENT shall comply with new, amended, or revised laws, regulations, and/or procedures that apply to the performance of this Agreement. These requirements include, but are not limited to: Title 44 Code of Federal Regulations (CFR) Part 13; EO 12372; Department of Justice (DOJ) Office of Judicial Programs (OJP) Office of the Comptroller, U.S. Department of Homeland Security, Preparedness Directorate Financial Management Guide; U.S. Department of Homeland Security, Office of Grants and Training, FY 2010 Homeland Security Grant Program - Program Guidance and Application Kit; ODP WMD Training Course Catalogue; and DOJ Office for Civil Rights. Standardized Emergency Management System (SEMS) requirements as stated in the California Emergency Services Act, Government Code Chapter 7 of Division 1 of Title 2, § 8607.1(e) and CCR Title 19, §§ 2445-2448. 18 20A-23 Provisions of 44 CFR applicable to grants and cooperative agreements, including Part 18, Administrative Review Procedures; Part 20, Criminal Justice Information Systems; Part 22, Confidentiality of Identifiable Research and Statistical Information; Part 23, Criminal Intelligence Systems Operating Policies; Part 30, Intergovernmental Review of Department of Justice Programs and Activities; Part 35, Nondiscrimination on the Basis of Disability in State and Local Government Services; Part 38, Equal Treatment of Faith-based Organizations; Part 42, Nondiscrimination/Equal employment Opportunities Policies and Procedures; Part 61, Procedures for Implementing the National Environmental Policy Act; Part 63, Floodplain Management and Wetland Protection Procedures; Part 64, Floodplain Management and Wetland Protection Procedures; Federal laws or regulations applicable to federal Assistance Programs; Part 69, New Restrictions on Lobbying; Part 70, Uniform Administrative Requirements for Grants and Cooperative Agreements (including sub-awards) with Institutions of Higher Learning, Hospitals and other Non-Profit Organizations; and Part 83, Government- Wide Requirements for a Drug Free Workplace (grants). Nondiscrimination requirements of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42 USC 3789(d), or the Juvenile Justice and Delinquency Prevention Act, or the Victims of Crime Act, as appropriate; the provisions of the current edition of the Office of Justice Programs Financial and Administrative Guide for Grants, M7100.1, and all other applicable federal laws, orders, circulars, or regulations. 2. Travel Expenses SUB-RECIPIENT as provided herein may be compensated for SUB- RECIPIENT'S reasonable travel expenses incurred in the performance of this Agreement, to include travel and per diem, unless otherwise expressed. Travel including in-State and out-of- State travel shall not be reimbursed without prior written authorization from the UASI Grant Office. SUB-RECIPIENT'S travel and per diem reimbursement costs shall be reimbursed based on the SUB-RECIPIENT'S travel policies and procedures. If SUB-RECIPIENT does not have established travel policies and procedures, SUB-RECIPIENT'S reimbursement rates shall not exceed the amounts established by the State Department of Personnel Administration Rules and Regulations, PML 97-024, Section 599.619, dated July 1, 1997 and Section 599.631, and as amended from time to time. 19 20A-24 3. Noncompliance SUB-RECIPIENT understands that failure to comply with any of the above assurances may result in suspension, termination or reduction of grant funds, and repayment by SUB-RECIPIENT to CITY of any unlawful expenditures. C. Compliance With Grant Assurances To obtain the Grant Funds, the Grantor required an authorized representative of the CITY to sign certain promises regarding the way the Grant Funds would be spent ("Grant Assurances"), attached hereto as Exhibit C. By signing these Grant Assurances, the CITY became liable to the Grantor for any funds that are used in violation of the grant requirements. SUB-RECIPIENT shall be liable to the Grantor for any funds the Grantor determines SUB-RECIPIENT used in violation of these Grant Assurances. SUB-RECIPIENT shall indemnify and hold harmless the CITY for any sums the Grantor determines SUB- RECIPIENT used in violation of the Grant Assurances. §414. Federal, State and Local Taxes Federal, State and local taxes shall be the responsibility of SUB-RECIPIENT as an independent party and not as a CITY employee. §415. Inventions. Patents and Copyrights A. Reporting Procedure for Inventions If any project produces any invention or discovery (Invention) patentable or otherwise under title 35 of the U.S. Code, including, without limitation, processes and business methods made in the course of work under this Agreement, the SUB-RECIPIENT shall report the fact and disclose the Invention promptly and fully to the CITY. The CITY shall report the fact and disclose the Invention to the Grantor. Unless there is a prior agreement between the CITY and the Grantor, the Grantor shall determine whether to seek protection on the Invention. The Grantor shall determine how the rights in the Invention, including rights under any patent issued thereon, will be allocated and administered in order to protect the public interest consistent with the policy ("Policy") embodied in the Federal Acquisition Regulations System, which is based on Ch. 18 of title 35 U.S.C. Sections 200, et seq. (Pub. L. 95-517, Pub. L. 98-620, 37 CFR part 401); Presidential Memorandum on Government Patent Policy to the Heads of the Executive Departments and Agencies, dated 2/18/1983); and Executive Order 12591, 4/10/87, 52 FR 13414, 3 CFR, 1987 Comp., p. 220 (as amended by Executive Order 12618, 12/22/87, 52 FR 48661, 3 CFR, 1987 Comp., p. 262). SUB-RECIPIENT hereby agrees to be bound by the Policy, and will contractually require its personnel to be bound by the Policy. B. Rights to Use Inventions 20 20A-25 CITY shall have an unencumbered right, and a non-exclusive, irrevocable, royalty- free license, to use, manufacture, improve upon, and allow others to do so for all government purposes, any Invention developed under this Agreement. C. Copyright Policy Unless otherwise provided by the terms of the Grantor or of this Agreement, when copyrightable material ("Material") is developed under this Agreement, the author or the CITY, at the CITY'S discretion, may copyright the Material. If the CITY declines to copyright the Material, the CITY shall have an unencumbered right, and a non-exclusive, irrevocable, royalty- free license, to use, manufacture, improve upon, and allow others to do so for all government purposes, any Material developed under this Agreement. 2. The Grantor shall have an unencumbered right, and a non-exclusive, irrevocable, royalty-free license, to use, manufacture, improve upon, and allow others to do so for all government purposes, any Material developed under this Agreement or any Copyright purchased under this Agreement. 3. SUB-RECIPIENT shall comply with 24 CFR 85.34. D. Rights to Data The Grantor and the CITY shall have unlimited rights or copyright license to any data first produced or delivered under this Agreement. "Unlimited rights" means the right to use, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform and display publicly, or permit others to do so; as required by 48 CFR 27.401. Where the data are not first produced under this Agreement or are published copyrighted data with the notice of 17 U.S.C. Section 401 or 402, the Grantor acquires the data under a copyright license as set forth in 48 CFR 27.404(f)(2) instead of unlimited rights. (48 CFR 27.404(a)). E. Obligations Binding on Subcontractors SUB-RECIPIENT shall require all subcontractors to comply with the obligations of this section by incorporating the terms of this section into all subcontracts. 21 20A-26 §416. Minority, Women, And Other Business Enterprise Outreach Program It is the policy of the CITY to provide minority business enterprises (MBEs), women business enterprises (WBEs) and all other business enterprises an equal opportunity to participate in the performance of all SUB-RECIPIENT contracts, including procurement, construction and personal services. This policy applies to all Contractors and Sub-Contractors. 22 20A-27 V DEFAULTS, SUSPENSION, TERMINATION, AND AMENDMENTS §501. Defaults Should SUB-RECIPIENT fail for any reason to comply with the contractual obligations of this Agreement within the time specified by this Agreement, the CITY reserves the right to terminate the Agreement, reserving all rights under state and federal law, §502. Amendments Any change in the terms of this Agreement, including changes in the services to be performed by SUB-RECIPIENT and any increase or decrease in the amount of compensation which are agreed to by the CITY and SUB-RECIPIENT shall be incorporated into this Agreement by a written amendment properly executed and signed by the person authorized to bind the parties thereto. SUB-RECIPIENT agrees to comply with all future CITY Directives, or any rules, amendments or requirements promulgated by the CITY affecting this Agreement. 23 20A-28 vl ENTIRE AGREEMENT §601. Complete Agreement This Agreement contains the full and complete Agreement between the two parties. Neither verbal agreement nor conversation with any officer or employee of either party shall affect or modify any of the terms and conditions of this Agreement. §602. Number of Pages and Attachments This Agreement is executed in two (2) duplicate originals, each of which is deemed to be an original. This Agreement includes twenty-five (25) pages and five (4) Exhibits which constitute the entire understanding and agreement of the parties. 24 20A-29 IN WITNESS WHEREOF, the City and the CITY OF SANTA ANA have caused this Agreement to be executed by their duly authorized representatives on the date first set forth above. By: ATTEST: Linda N. Andal Cleric of the Council By: RECOMMENDED FOR APPROVAL: John Welter Chief of Police APPROVED AS TO FORM: By: Aaron Harp Sr. Assistant City Attorney CITY OF ANAHEIM, a municipal Corporation of the State of California By: Tom Wood City Manager SUB-RECIPIENT CITY OF SANTA ANA By. Printed Name Title (11 1 J F off- Pot { (o . APPROVED AS TO FORM B Printed Name Title } ATTEST: MARIA D. HUIZAR .J CLERK OF THE COUNCIL 25 20A-30 EXHIBIT A CERTIFICATION REGARDING DEBARMENT, SUSPENSION AND OTHER RESPONSIBILITY MATTERS Applicants should refer to the regulations cited below to determine the certification to which they are required to attest. Applicants should also review the instructions for certification included in the regulations before completing this form. Signature of this form provides for compliance with certification requirements under the applicable CFR covering New Restrictions on Government-wide Debarment and Suspension (Nonprocurement). The certification shall be treated as a material representation of fact upon which reliance will be placed when the Agency determines to award the covered transaction or cooperative agreement. As required by Executive Order 12549, Debarment and Suspension, and implemented under the applicable CFR, for prospective participants in covered transactions, as defined in the applicable CFR A. The applicant certifies that it and its principals: (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, sentenced to a denial of Federal benefits by a State or Federal court, or voluntarily excluded from covered transactions by any Federal department or agency; (b) Have not within a three-year period preceding this application been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a government entity (Federal State or local) with commission of any of these offenses enumerated in paragraph (1) (b) of this certification; and (d) Have not within a three-year period preceding this application had one or more public transactions (Federal, State or local) terminated for cause or default; and B. Where the applicant is unable to certify to any of the statements in this certification, he or she shall attach an Zxplanation to this application. JJ Address: =t? Authorized Agent Signature Printed or Typed Name Title 26 20A-31 1. By signing and submitting this document, the prospective recipient of Federal assistance funds is providing the certification as set out below. 2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective recipient of Federal assistance funds knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. 3. The prospective recipient of Federal assistance funds shall provide immediate written notice to the person to whom this agreement is entered, if at any time the prospective recipient of Federal assistance funds learns that its certification was erroneous, when submitted or has become erroneous by reason of changed circumstances. 4. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered transaction," "participant," "person," "primary covered transaction," "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. 5. The prospective recipient of Federal assistance funds agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. 6. The prospective recipient of Federal assistance funds further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion Lower Tier Covered Transactions," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. 7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the List of Parties Excluded from Procurement or Non Procurement Programs. 8. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. 9. Except for transactions authorized under Paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntary excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. 27 20A-32 EXHIBIT B CERTIFICATION REGARDING LOBBYING Certification for Contracts. Grants. Loans and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief, that: No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan or cooperative agreement. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form LLL "Disclosure Form to Report Lobbying" in accordance with its instructions. 3. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. 4. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352 Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less that $10,000 and not more than $100,000 for each such failure. SIGNATURE DATE 28 20A-33 AGREEMENT NUMBER Cit 1? % S?(Y? ??? (? ?t rd CONTRACTOR/BORROWER/AGENCY EXHIBIT C California Emergency Management Agency FY2010 Grant Assurances (All HSGP,, licants) Name of Applicant: ( k 1 Address: & 1'`,-j P q 7,1 City: _4V , iA VIR State: Zip Code: + i Telephone Number: $003 Fax Number: E-Mail Address: oWn 1 91r.0 ?IVttA GIYIQ•(N? As the duly authorized representative of the applicant, I certify that the applicant named above: Will assure that grant funds will support efforts related to providing an integrated mechanism to enhance the coordination of national priority efforts to prevent, respond to, and recover from terrorist attacks, major disasters and other emergencies. 2. Has the legal authority to apply for Federal assistance and has the institutional, managerial and financial capability to ensure proper planning, management and completion of the grant provided by the U.S. Department of Homeland Security (DHS)/Federal Emergency Management Agency (FEMA) and sub-granted through the State of California, California Emergency Management Agency (Cal EMA). Will assure that grant funds are used for allowable, fair, and reasonable costs only and will not be transferred between grant programs (for example: State Homeland Security Program, Urban Area Security Initiative, Citizen Corps Program, and Metropolitan Medical Response System) or fiscal years. 4. Will comply with any cost sharing commitments included in the FY2010 Investment Justifications submitted to DHS/FEMA/Cal EMA, where applicable. Will give the Federal government, the General Accounting Office, the Comptroller General of the United States, the State of California, the Office of Inspector General, through any authorized representative, access to, and the right to examine, all paper or electronic records, books, or documents related to the award; and will establish a proper accounting system in accordance with generally accepted accounting standards and/or awarding agency directives. 6. Agrees that funds utilized to establish or enhance State and Local fusion centers must support the development of a statewide fusion process that corresponds with the Global Justice/Homeland Security Advisory Council (HSAC) Fusion Center Guidelines, follow the Federal and State approved privacy policies, and achieve (at a minimum) baseline level of capability as defined by the Fusion Capability Planning Tool. 7. Will provide progress reports, and other such information as may be required by the awarding agency, including the Initial Strategy Implementation Plan (ISIP) within 45 29 20A-34 (forty-five) days of the award, and update via the Grant Reporting Tool (GRT) twice each year. 8. Will initiate and complete the work within the applicable time frame after receipt of approval from Cal EMA. 9. Will maintain procedures to minimize the time elapsing between the award of funds and the disbursement of funds. 10. Will comply with all provisions of DHS/FEMA's codified regulation 44, Part 13, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, including the payment of interest earned on advances. 11. Will establish safeguards to prohibit employees from using their positions for a purpose that constitutes, or presents the appearance of, personal or organizational conflict of interest, or personal gain for themselves or others, particularly those with whom they have family, business, or other ties. 12. Understands and agrees that Federal funds will not be used, directly or indirectly, to support the enactment, repeal, modification or adoption of any law, regulation, or policy, at any level of government, without the express prior written approval from DHS/FEMA/Cal EMA. 13. Agrees that, to the extent contractors or subcontractors are utilized, will use small, minority-owned, women-owned, or disadvantaged business concerns and contractors or subcontractors to the extent practicable. 14. Will notify Cal EMA of any developments that have a significant impact on award- supported activities, including changes to key program staff. 15. Will comply, if applicable, with the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. §§ 4801 et seq.) which prohibits the use of lead based paint in construction or rehabilitation of structures. 16. Will comply with all Federal and State Statues relating to Civil Rights and Nondiscrimination. These include, but are not limited to: a. Title VI of the Civil Rights Act of 1964 (P.L. 88-352), as amended, which prohibits discrimination on the basis of race, color or national origin. b. Title IX of the Education Amendments of 1972, as amended (20 U.S.C. §§ 1681- 1683 and 1685-1686), which prohibits discrimination on the basis of gender. C. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), which prohibits discrimination on the basis of handicaps. d. The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101-6107), which prohibits discrimination on the basis of age. 30 20A-35 e. The Drug Abuse Office and Treatment Act of 1972 (P.L. 92-255), as amended, relating to nondiscrimination on the basis of drug abuse. f The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (P.L. 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism. g. §§ 523 and 527 of the Public Health Service Act of 1912 (42 U.S.C. 290 dd-3 and 290 ee-3), as amended, relating to confidentiality of alcohol and drug abuse patient records. h. Title VIII of the Civil Rights Act of 1968 (42 U.S.C. § 3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing. i. Title 44 Code of Federal Regulations (CFR) Parts 7, 16, and 19 relating to nondiscrimination. j. The requirements on any other nondiscrimination provisions in the specific statute(s) under which the application for Federal assistance is being made. k. Will, in the event that a Federal or State court or Federal or State administrative agency makes a finding of discrimination after a due process hearing on the grounds or race, color, religion, national origin, gender, or disability against a recipient of funds, the recipient will forward a copy of the finding to the Office of Civil Rights, Office of Justice Programs. 1. Will provide an Equal Employment Opportunity Plan, if applicable, to the Department of Justice Office of Civil Rights within 60 days of grant award. m. Will comply, and assure the compliance of all its subgrantees and contractors, with the nondiscrimination requirements and all other provisions of the current edition of the Office of Justice Programs Financial and Administrative Guide for Grants, M7100.1. 17. Will comply with the requirements of Titles II and III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. § 4601 et seq. [P.L. 91-646]) which provides for fair and equitable treatment of persons displaced or whose property is acquired as a result of Federal or Federally assisted programs. These requirements apply to all interested in real property acquired for project purposes regardless of Federal participation in purchases. Will also comply with Title 44 CFR, Part 25, Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally-assisted programs. 18. Will comply, if applicable, with the flood insurance purchase requirements of Section 102(a) of the Flood Disaster Protection Act of 1973 (P.L. 93-234) which requires recipients in a special flood hazard area to participate in the program and to purchase flood insurance if the total cost of insurable construction and acquisition is ten thousand dollars ($10,000) or more. 19. Will comply with all applicable Federal, State, and Local environmental and historical preservation (EHP) requirements. Failure to meet Federal, State, and Local EHP requirements and obtain applicable permits may jeopardize Federal funding. Will comply with all conditions placed on any project as the result of the EHP review; any change to the scope of work of a project will require reevaluation of compliance with these EHP requirements. 31 20A-36 20. Agrees not to undertake any project having the potential to impact the EHP resources without the prior written approval of DHS/FEMA/Cal EMA, including, but not limited to, ground disturbance, construction, modification to any structure, physical security enhancements, communications towers, and purchase and/or use of any sonar equipment. The subgrantee must comply with all conditions placed on the project as a result of the EHP review. Any construction- related activities initiated without the necessary EHP review and approval will result in a noncompliance finding, and may not be eligible for reimbursement with DHS/FEMA/Cal EMA funding. Any change to the scope of work will require re-evaluation of compliance with the EHP. If ground-disturbing activities occur during the project implementation, the subgrantee must ensure monitoring of the disturbance. If any potential archeological resources are discovered, the subgrantee will immediately cease activity in that area and notify DHS/FEMA/Cal EMA and the appropriate State Historic Preservation Office. 21. Will ensure that the facilities under its ownership, lease or supervision, which shall be utilized in the accomplishment of this project, are not on the Environmental Protection Agency's (EPAs) List of Violating Facilities, and will notify Cal EMA and the Federal Grantor agency of the receipt of any communication from the Director of the EPA Office of Federal Activities indicating if a facility to be used in the project is under consideration for listing by the EPA. 22. Will provide any information requested by DHS/FEMA/Cal EMA to ensure compliance with applicable laws, including the following: a. Institution of environmental quality control measures under the National Environmental Policy Act, National Historical Preservation Act, Archaeological and Historic Preservation Act, Endangered Species Act, and Executive Orders on Floodplains (11988), Wetlands (11990) and Environmental Justice (EO12898) and Environmental Quality (EOI 1514). b. Notification of violating facilities pursuant to EO 11738. C. Assurance of project consistency with the approved state management program developed under the Coastal Zone Management Act of 1972 (16 U.S.C. §§ 1451 et seq.). d. Conformity of Federal actions to State (Clean Air) Implementation Plans under Section 176(c) of the Clean Air Act of 1955, as amended (42 U.S.C. § 7401 et seq.). e. Protection of underground sources of drinking water under the Safe Drinking Water Act of 1974, as amended, (P.L. 93-523). f. California Environmental Quality Act (CEQA). California Public Resources Code Sections 21080-21098. California Code of Regulations, Title 14, Chapter 3 Section 15000-15007. g. Wild and Scenic Rivers Act of 1968 (16 U.S.C. §§ 1271 et.seq.) related to protecting components or potential components of the national wild and scenic rivers system. h. Applicable provisions of the Coastal Barrier Resources Act (P.L. 97-348) dated October 19, 1982 (16 USC 3501 et seq.) which prohibits the expenditure of most new Federal funds within the units of the Coastal Barrier Resources System. 23. Will comply with Standardized Emergency Management System (SEMS) requirements as stated in the California Emergency Services Act, Government Code, Chapter 7 of 32 20A-37 Division 1 of Title 2, Section 8607.1(e) and CCR Title 19, Sections 2445, 2446, 2447, and 2448. 24. Agrees that all publications created or published with funding under this grant shall prominently contain the following statement: "This document was prepared under a grant from FEMA's Grant Programs Directorate, U.S. Department of Homeland Security. Points of view or opinions expressed in this document are those of the authors and do not necessarily represent the official position or policies of FEMA's Grant Programs Directorate or the U.S. Department of Homeland Security." The recipient also agrees that, when practicable, any equipment purchased with grant funding shall be prominently marked as follows: "Purchased with funds provided by the U.S. Department of Homeland Security." 25. Acknowledges that DHS/FEMA reserves a royalty-free, nonexclusive, and irrevocable license to reproduce, publish, or otherwise use, and authorize others to use, for Federal government purposes: a) the copyright in any work developed under an award or sub- award; and b) any rights of copyright to which a recipient or sub-recipient purchases ownership with Federal support. 26. The recipient agrees to consult with DHS/FEMA/Cal EMA regarding the allocation of any patent rights that arise from, or are purchased with, this funding. 27. Has requested through the State of California, Federal financial assistance to be used to perform eligible work approved in the submitted application for Federal assistance and after the receipt of Federal financial assistance, through the State of California, agrees to the following: a. Promptly return to the State of California all the funds received which exceed the approved, actual expenditures as accepted by the Federal or State government. b. In the event the approved amount of the grant is reduced, the reimbursement applicable to the amount of the reduction will be promptly refunded to the State of California. C. Separately account for interest earned on grant funds, and will return all interest earned, in excess of $100 per Federal Fiscal Year. 28. Will comply with the Intergovernmental Personnel Act of 1970 (42 U.S C. Sections 4728-4763) relating to prescribed standards for merit systems for programs funded under one of the nineteen statutes or regulations specified in Appendix A of OPM's Standards for a Merit System of Personnel Administration (5 C.F.R. 900, Subpart F). 29. Will comply with provisions of the Hatch Act (5 U.S.C. Sections 1501-1508 and 7324- 7328) which limit the political activities of employees whose principal employment activities are funded in whole or in part with Federal funds. 30. Will comply, if applicable, with P.L. 93-348 regarding the protection of human subjects involved in research, development, and related activities supported by this award of assistance. 33 20A-38 31. Will comply, if applicable, with the Laboratory Animal Welfare Act of 1966 (P. L. 89- 544, as amended, 7 U.S.C. 2131 et seq.) pertaining to the care, handling, and treatment of warm blooded animals held for research, teaching, or other activities supported by this award of assistance. 32. Will comply with the minimum wage and maximum hour provisions of the Federal Fair Labor Standards Act (29 U.S.C. 201), as they apply to employees of institutions of higher education, hospitals, and other non-profit organizations. 33. Will comply, as applicable, with the provisions of the Davis-Bacon Act (40 U.S.C. Section 276a to 276a-7), the Copeland Act (40 U.S.C. Section 276c and 18 U.S.C. Sections 874), and the Contract Work Hours and Safety Standards Act (40 U.S.C. Sections 327-333), regarding labor standards for Federally-assisted construction sub- agreements. 34. Agrees that: a. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the making of any Federal grant, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal grant or cooperative agreement. b. If any other funds than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or an employee of Congress, or employee of a Member C. of Congress in connection with the Federal grant or cooperative agreement, the undersigned shall complete and submit Standard Form LLL, "Disclosure of Lobbying Activities," in accordance with its instructions. d. The undersigned shall require that the language of this certification be included in the award documents for all sub awards at all tiers including subgrants, contracts under grants and cooperative agreements, and subcontract(s) and that all sub recipients shall certify and disclose accordingly. e. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. 35. Agrees that equipment acquired or obtained with grant funds: a. Will be made available pursuant to applicable terms of the California Disaster and Civil Defense Master Mutual Aid Agreement in consultation with representatives of the various fire, emergency medical, hazardous materials response services, and law enforcement agencies within the jurisdiction of the applicant, and deployed with personnel trained in the use of such equipment in a 34 20A-39 manner consistent with the California Law Enforcement Mutual Aid Plan or the California Fire Services and Rescue Mutual Aid Plan. b. Is consistent with needs as identified in the State Homeland Security Strategy and will be deployed in conformance with that Strategy. 36. Agrees that funds awarded under this grant will be used to supplement existing funds for program activities, and will not supplant (replace) non-Federal funds. 37. Will comply with all applicable Federal statutes, regulations, policies, guidelines and requirements, including OMB Circulars A102 and A-133, E.O. 12372 and the current Administrative Requirements, Cost Principles, and Audit Requirements. 38. Will comply with all provisions of 2 CFR, including: Part 215 Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations (OMB Circular A-110); Part 225 Cost Principles for State, Local and Indian Tribal Governments (OMB Circular A-87); Part 220 Cost Principles for Educational Institutions (OMB Circular A-21); Part 230 Cost Principles for Non-Profit Organizations (OMB Circular A-122). 39. Will comply with Subtitle A, Title II of the Americans with Disabilities Act (ADA) 1990. 40. Agrees to cooperate with any assessments, national evaluation efforts, or information or data collection requests, including, but not limited to, the provision of any information required for the assessment or evaluation of any activities within this agreement. 41. Will comply with Federal Acquisition Regulations (FAR), part 31.2 Contract Cost Principles and Procedures, Contracts with Commercial Organizations. 42. Will comply with the financial and administrative requirements set forth in the current edition of the DHS Financial Management Guide. 43. Agrees that all allocations and use of funds under this grant will be in accordance with the FY 2010 Homeland Security Grant Program Guidance and Application Kit, and the California Supplement to the FY 2010 Homeland Security Grant Program Guidance and Application Kit. All allocations and use of funds under this grant will be in accordance with the Allocations, and use of grant funding must support the goals and objectives included in the State and/or Urban Area Homeland Security Strategies as well as the investments identified in the Investment Justifications which were submitted as part of the California FY2010 Homeland Security Grant Program application. Further, use of FYI 0 funds is limited to those investments included in the California FYI 0 Investment Justifications submitted to DHS/FEMA/Cal EMA and evaluated through the peer review process. 35 20A-40 44. Will not make any award or permit any award (subgrant or contract) to any party which is debarred or suspended or is otherwise excluded from or ineligible for participation in Federal assistance programs under Executive Order 12549 and 12689, "Debarment and Suspension". 45. As required by Executive Order 12549, Debarment and Suspension, and implemented at 44 CFR Part 17, for prospective participants in primary covered transactions, a. The applicant certifies that it and its principals: i. Are not presently debarred, suspended, proposed for debarment, declared ineligible, sentenced to a denial of Federal benefits by a State or Federal court, or voluntarily excluded from covered transactions by any Federal department or agency. ii. Have not within a three-year period preceding this application been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property. iii. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and have not within a three-year period preceding this application had one or more public transactions (Federal, State, or local) terminated for cause or default; and b. Where the applicant is unable to certify to any of the statements in this certification, he or she shall attach an explanation to this application. 46. Agrees to comply with the Drug-Free Workplace Act of 1988, and certifies that it will or will continue to provide a drug-free workplace by: a. Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition. b. Establishing an on-going drug-free awareness program to inform employees about: i. The dangers of drug abuse in the workplace; ii. The grantee's policy of maintaining a drug-free workplace; iii. Any available drug counseling, rehabilitation, and employee assistance programs; and iv. The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace. C. Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (a). d. Notifying the employee in the statement required by paragraph (a) that, as a condition of employment under the grant, the employee will i. Abide by the terms of the statement; and ii. Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction, 36 20A-41 e. Notifying the agency, in writing, within 10 calendar days after receiving notice under subparagraph (d)(2) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to: Department of Justice, Office of Justice Programs ATTN: Control Desk 633 Indiana Avenue, N.W. Washington, D.C. 20531 Notice shall include the identification number(s) of each affected grant. f. Taking one of the following actions, within 30 calendar days of receiving notice under subparagraph (d)(2), with respect to any employee who is so convicted. i. Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or ii. Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency. g. Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (a), (b), (c), (d), (e), and (f). 47. Will comply with all applicable requirements of all other Federal and State laws, executive orders, regulations, program and administrative requirements, policies and any other requirements governing this program. 48. Understands that failure to comply with any of the above assurances may result in suspension, termination, or reduction of grant funds. The undersigned represents that he/she is authorized by the above named applicant to enter into this agreement for and on behalf of the said applicant. Signature of Authorized Agent: t Printed Name of Authorized Agent: Title: 1 l t? ?1( ?, `J . ' i Date: 37 20A-42 EXHIBIT D Anaheim and Santa Ana Urban Areas Security Initiative Reimbursement Request for Grant Expenditures Mail Reimbursement Request To: F1 This is the final reimbursement request. FY10 UASI Grant Program Sgt. Darrin Lee, Grant Coordinator Anaheim Police Department Emergency Management Bureau 425 S. Harbor Blvd. Anaheim, CA 92805 FY11 UASI Grant.Program. Sgt. Enrique Esparza, Grant Coordinator Santa Ana Police Department Homeland Security Division 60 Civic Center Plaza-P.O. Box 1981 Santa Ana, CA 92702 Agency/ City Requesting Reimbursement Payroll Total (Salaries, Overtime, Backfill, etc) Travel Total (Tuition, Meals, Lodging, etc) Equipment & Supplies Total Total Amount Requested - Under Penalty of perjury, I certify that: I am the duly authorized officer of the claimant herein. This claim is in all respects true, correct, and all expenditures were made in accordance with applicable laws, rules, regulations, and grant conditions and assurances. All attached documents for items and/or services have been received in full. Authorized Agent Printed Name Title Mailing Address City, State, Zip Code Signature (Please sign in blue ink) Phone Number E-Mail Address Fax Number Date For Anaheim/Santa Ana UASI Grant Coordinator Use On[ Approved for Processing Date Account and Activity Number Grant Year/Grant Project and Solution Area Special Instructions/Comments 38 20A-43 20A-44 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2013 TITLE: CONTRACT AWARD TO ENTERPRISE FLEET MANAGEMENTFOR LEASED VEHICLES (SPEC. NO. 13-008) I(Z?2 CIT AGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1St Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Award a contract to Enterprise Fleet Management for 34 leased vehicles for the Police Department for a three-year period with a provision for two one-year renewals, in an annual amount not to exceed $238,200. DISCUSSION The Santa Ana Police Department leases vehicles for various personnel based on need for field assignments. The Police Department leases 16 vehicles for the Special Investigations Division surveillance program. Leasing a variety of vehicles allows them to be interchanged in order to maintain anonymity and safety of the police officers. In addition, 16 vehicles are leased and assigned to background investigators, police commanders and various staff assigned to Training, Internal Affairs and the Personnel Division. Additionally, the Finance Management & Services Agency Fleet Management Division will be replacing two City owned vehicles slated for replacement with two Nissan Leaf electric vehicles as part of its Green Fleet Action Plan. Santa Ana City Ordinance No. NS-2312 authorizes the City to purchase against contracts from any public agency utilizing a competitive bid process. The West Contra Costa Unified School District's contract with Enterprise Fleet Management was awarded as a result of open, competitive bidding, and meets the City's requirements. 22A-1 Enterprise Fleet Management Contract for Leased Vehicles March 18, 2013 Page 2 FISCAL IMPACT M Funds are available in the Police Department accounting units no. 01114445; 01114400; 01114402; 01114405; 01114410; 01114420; 01114435; 01114440 and Fleet Management Division account unit no. 07510100 Contract Services - Professional account 62300. APPROVED AS TO FUNDS AND ACCOUNTS: Carlos Rojas Acting Chief of Police Police Department Francisco Gutierrez Executive Director Finance & Management Services Agency 22A-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2013 TITLE: AGREEMENT WITH CENTRAL PARKING SYSTEM, INC. FOR MUNICIPAL PARKING FACILITIES OPERA :GR C1YV- ONAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1s` Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute the attached agreement (Exhibit 1) with Central Parking System, Inc. for operating services of the City owned downtown parking facilities for a two-year term, for an annual amount of $30,000, with an option to extend the agreement for three additional one-year terms, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION The City of Santa Ana owns and operates five parking facilities within Downtown Santa Ana. The facilities are vital in providing easily accessible parking for the surrounding retail businesses and numerous visitors to this area. Four of the facilities are multi-level parking structures that accommodate both transient and monthly patrons and a surface lot that accommodates transient patrons. The facilities also provide parking for numerous events held throughout the year within the downtown. The parking facilities provide an initial impression to customers visiting Santa Ana; therefore, the efficient operation and excellent customer service are of primary importance The existing management agreement with Parking Concepts, Inc. was due to expire on December 31, 2012, with all renewal options exhausted. On November 19, 2012, City Council approved the release of a Request for Proposals (RFP) (Exhibit 2) for a municipal parking facilities operator, and a three-month extension to the agreement with Parking Concepts, Inc. to allow time for staff to complete the RFP process. Staff advertised and released the RFP on November 20, 2012 to seek a parking management firm experienced in operating municipal parking facilities. The RFP was posted on the city website and the California Public Parking Association. In addition, notifications were sent out to nine parking firms. Requirement of the RFP included: oversight of daily operation and management of the facilities, including, but not limited to: invoicing and collection of monthly fees, issuing validation stamps, collecting parking fees, activation of monthly access cards, preparation of monthly 25A-1 Agreement - Central Parking System, Inc. March 18, 2013 Page 2 utilization reports and maintenance. Additionally, to be included in the proposal was a Management Plan, Operations Plan, Transition and Implementation Plan, Facilities Improvement Plan and General Improvements/Recommendation Plan. The City received proposals from seven parking operator firms. The proposals were evaluated by a team comprised of a representative from each of the following agencies: Planning and Building Agency, Public Works Agency, Police Department and Community Development Agency. The evaluations were based on several criteria, including operator qualifications, proposed management, operation, facilities improvement, transitional and general improvement/recommendation plans, fee proposal and quality and depth of proposal. The top four parking firms were invited to the interview phase of the evaluation process, which included the same raters as mentioned above. The maximum obtainable rating score for each of the proposers was 400. The ratings for the top four parking firms are identified in Table 1: TABLE 1 TOTAL RANK PROPOSER LOCATION RATING SCORE 1 Central Parking Costa Mesa 371 System, Inc. 2 Modern Parking Los Angeles 345 3 ABM Irvine 323 4 Parking Concepts, Inc. Irvine 322 The evaluation committee determined that Central Parking System, Inc. was the top proposer and received the highest overall ranking as a result of their proposal (Exhibit 3) and interview. Central Parking presented a quality proposal and diligently addressed their proposed operations, transition and management plan. In addition, Central is providing for online reporting of monthly statements, allowing staff to view revenue and expenditures reports from their office and with the ability to drill down expenditures. Central Parking has been in business for over 43 years and currently provides similar parking operation and management services to the City of Anaheim, City of Riverside, City of Long Beach and the offices of South Coast Plaza. Additionally, in July of 2012, after a competitive selection process, Central was selected and approved to provide parking enforcement for the Santa Ana Police Department. The Police Department has noted that the transition plan 25A-2 Agreement - Central Parking System, Inc. March 18, 2013 Page 3 that Central has implemented has been successful. Central provided some innovative ideas including a web-based marketing program to promote parking in the Downtown. This includes creating a webpage featuring downtown parking information that provides directions, Google maps, rates and parking facility information as well as a mobile app that will assist visitors in finding public parking locations, parking rates and hours of operation. In addition, Central is providing monthly parkers with convenient online payment options. In 2012, Central merged with Standard Parking Corporation doubling the size of the firm and significantly enhancing the parking management capabilities they offer to their clients. Central has demonstrated the organizational credentials, resources and staff experience necessary to meet the City's high customer service expectation and effectively manage and operate the parking facilities. Following the evaluation process, staff entered into negotiations with Central Parking System, Inc. who has agreed to absorb the cost of the proposed web-based initiatives and therefore, is able to offer a reduced annual management fee of $30,000. However, the fee is only one component of the overall assessment of the proposals; they also agreed to incorporate additional community outreach to their plan to ensure a smooth transition. Combined with other evaluated criteria and their innovative recommendations, Central Parking System Inc. was the top rated parking firm. As stated in the letter from Central Parking System Inc. dated February 28, 2013 (Exhibit 4) and received as correspondence at the March 4, 2013 council meeting, Central Parking System Inc. has committed and intends to absorb all current employees, each of which will be submitted through their pre-employment screening process and additional training, if necessary. Based on the overall quality and thoroughness of the proposal, staff recommends the selection of Central Parking System, Inc. to operate and manage the downtown parking facilities. The initial contract would be for a two-year term with an option for three additional one-year renewals based on parking firm performance and cost effectiveness. Public Information and Public Records In accordance with the City's Sunshine Ordinance, the project Request for Proposals and summary of the consultant evaluation results are available on the City's "Open Government" website page http://www:santa-ana.org/bids-rfps/, and will be available on the website for a minimum of 30 days after City Council action on the matter. In addition, the project proposal, communication received, and evaluation/score sheets are available to the public upon request to the Community Development Agency. Local Preference Ordinance Per City ordinances the procurement of materials, supplies, labor and services involving expenditures between $5,000 and $100,000, the City will offer a 7% preference to qualifying local businesses and a 4% preference to Orange County businesses. To be eligible for Santa Ana's local preference program, a business must be registered with the California Department of General Services. None of the parking firms that submitted proposals are registered with the California Department of General Services. 25A-3 Agreement - Central Parking System, Inc. March 18, 2013 Page 4 FISCAL IMPACT Funds are available in the Downtown Parking Facilities account (no. 02718861 62300). C11 CY li ?C(IGr-[?.tCJ Nancy T. E ards Interim Ex utive Director Community Development Agency NTE/GPL/kg APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency Z--? Exhibit: 1. Agreement 2. Parking Operations and Management Services RFP 3. Central Parking System, Inc. Proposal 4. Correspondence from Central Parking dated February 28, 2013 25A-4 OPERATING AGREEMENT FOR PUBLIC PARKING GARAGES & SURFACE LOT STAFFING AND FIELD MANAGEMENT BETWEEN THE CITY OF SANTA ANA AND CENTRAL PARKING SYSTEM, INC. This Agreement is made and entered into this-- day of 20 by and between the CITY OF SANTA ANA, a charter city and municipal corporation of the State of California ("City") and CENTRAL PARKING SYSTEM, INC. ("Operator"). W-I-T-N-E-S-S-E-T-H Recitals: A. City has issued a Request for Proposals 12-060 (Exhibit A) for the operation of the downtown parking garages and surface parking lots. City desires to procure adequate and efficient management of certain public parking garages and surface parking lots for which it has operational responsibility, which structures are currently described as follows: Parking Garage A: 440-space garage existing on the northeast corner of Broadway and Third Street. Parking Garage B: 700-space garage on the south side of Fifth Street between Bush and French Streets. Parking Garage C: 400-space garage on the northwest corner of Birch and Third Streets. 4. Parking Garage D: 400-space garage on the southwest corner of Fifth and Main Streets. Surface Parking Lot #1: 62 space surface parking lot on the northeast corner of Bush and Third Street. B. Operator is experienced in the operation and management of automobile parking garages and surface parking lots, and is ready, able and willing to undertake the operation and management of the above-described parking garages and lots. C. The City can, at any time during the Term of this Agreement, request to have additional locations not listed above be managed under this Agreement subject to additional fees. D. In undertaking the performance of this Agreement, Operator represents that it is knowledgeable in its field and that any services performed by Operator under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. EXHIBIT 1 25A-5 Wherefore, in consideration of their mutual and respective promises and subject to the terms and conditions hereinafter set forth, the parties hereto do hereby agree as follows: 1. DEFINITIONS For purposes of this Agreement, the following meanings shall apply: A. "Premises" shall initially mean Parking Garages A, B, C, and D, along with Surface Parking Lot #1, used interchangeably with the term "Parking Facilities" (see Exhibit A, attached hereto and incorporated herein). Additional Premises may be added by the City during the term hereof. B. "City" shall mean the City of Santa Ana, California, a charter city and municipal corporation. C. "Contract Administrator" shall mean the City Manager or his/her designee; the person on City staff that is appointed to be the contact person with regard to this Agreement. D. "Fiscal Year" shall mean January 1 through December 31. E. "Gross Revenue" shall mean the total amount of all parking receipts, admission, rentals, and other fees of any nature or kind charge, received, or collected by Operator in the course of operating the Premises, whether such monies are received at the Premises or elsewhere. F. "Hazardous Materials" shall mean any and all (a) substances, products, by- products, waste, or other materials of any nature or kind whatsoever which is or becomes listed, regulated or addressed under an Environmental Law, and (b) any materials, substances, products, by-products, waste, or other materials of any nature or kind whatsoever whose presence in and of itself or in combination with other materials, substances, products, by-products, or waste may give rise to liability under any Environmental Law or any statutory or common law theory based on negligence, trespass, intentional tort, nuisance, strict or absolute liability or under any reported decisions of any state or federal court; and (c) any substance, product, by-product, waste, or any other material which may be hazardous or harmful to the air, water, soil, environment or affect industrial hygiene, occupational, health, safety and/or general welfare conditions, including without limitation, petroleum and/or asbestos materials, products, by-products or waste. G. "Management Fee" shall mean the fee that the City pays the Operator for performing those obligations set forth in the Agreement. The fee is proposed as an annual maximum fixed amount and is paid on a monthly prorated basis. H. "Parking Manager" shall mean the person that the Operator selects and appoints whose responsibility shall be overseeing the operation of the Parking Facilities, as further discussed in Sections 12 and 13 hereof. 2 25A-6 "Reimbursable Expenses" shall mean expenses incurred by Operator for equipment or supplies, or paid to a third party vendor, which are not included as part of the operating fee and which shall be reimbursed by the City. 2. SCOPE OF SERVICES Operator shall perform those services as specified in detail in the RFP and the attached Proposal dated January 2, 2013, attached hereto and incorporated as Exhibit B. Operational services shall include valet parking services and the installation of certain improvements to enhance garage/parking lot security and operations, as requested by the City. These improvements may include, but are not limited to: upgrading/adding lighting, installation of security cameras, and improving circulation, where possible. Budgets shall be submitted for each Fiscal Year or portion thereof occurring during the term of this Agreement showing the estimated Operating Expenses for such Fiscal Year or portion thereof occurring during the term of this Agreement, in such format as is required by the Contract Administrator, or his/her designee. The initial proposed budget shall be submitted by Operator to the Contract Administrator prior to the commencement date set forth herein. Subsequent proposed budgets should be submitted prior to the commencement of the Fiscal Year to which they pertain. Operator and the Contract Administrator shall cooperate in good faith to develop reasonable approved budgets, provided, however, that the Contract Administrator shall retain ultimate authority to determine each approved budget in the event of disagreement. Any approved budget may be amended at any time by a written amendment approved by the Contract Administrator and Operator. In the event that the City incurs any obligation for Operating Expenses, which are not in accordance with an approved budget, City may deduct the amount of such obligation from the Management Fee. 3. TERM OF AGREEMENT 3.1 Initial Term - The initial term of this Agreement is a two (2) year term, from March 1, 2013 to February 28, 2015. 3.2 Options - City has the right to extend the term of this Agreement for three (3) additional one-year periods (the "Additional Terms"), based upon the same conditions of the Initial Term, subject to adjustments for compensation. City shall notify Operator in writing of its exercise of its option for an Additional Term no less than thirty (30) days prior to the end of the then current Term. 4. COMPENSATION a. As total compensation for Operator's services under this Agreement, City agrees to pay and Operator agrees to accept, a management fee in the amount of Two Thousand Five Hundred Dollars ($2,500) per month. b. Adjustments to Charges. The parties may agree to an annual adjustment (not to exceed 2%) at the end of the first year of the Agreement every year thereafter, utilizing the month of December statistics and supporting documentation. The two indices which 25A-7 will be used for determining adjustments shall be the most recent December Consumer Price Index (CPI) for All Urban Consumers for Los Angeles-Anaheim-Riverside CMSA, published by the United States Department of Labor Bureau of Labor Statistics or any relevant successor for the Orange County area. c. Extra Work. No new work of any kind shall be considered as extra unless a separate estimate is given for said work and the estimate is approved by the City in writing before work is commenced. The Operator will be required to provide detailed information of such extra work. Documentation of contract compliance may be required on some occasions. 5. DESIGNATION OF OPERATOR AS MANAGER: PARKING FACILITIES TO BE OPF.R ATF.n A. Non-exclusive Agreement. Operator's right to operate the Parking Facilities is non-exclusive. B. Designation of Operator as Manager. City hereby designates and hires Operator as the operator and manager of the hereinafter described Parking Facilities and Operator accepts such designation and agrees to operate and manage the Parking Facilities subject to the terms, covenants and conditions of this Agreement. Operator acknowledges that this Agreement conveys no interest in nor attaches to any underlying real property comprising the Parking Facilities. Accordingly, City and Operator agree that nothing in this Agreement shall entitle or permit or be construed to permit Operator to file any claim, lien or notice against any real property. As material consideration for this Agreement, Operator waives any rights it may now or hereafter have to record a lis pendens against the Parking Facilities under Section 405 et. seq. of the California Code of Civil Procedures, or any.other provision of law, if a dispute arises under this Agreement. C. Parking Facilities to be Operated. Operator shall operate those certain vehicular Parking Facilities, together with all incidental and appurtenant improvements constructed thereon, shown on Exhibit A, attached hereto and made a part hereof, hereinafter referred to as the "Parking Facilities," in accordance with the terms and conditions set forth in this Agreement. D. Performance. The hours of operation of each Parking Facility are set by the City. Operator must staff each facility sufficiently during all operating hours. It is expected that the parties will discuss and agree upon levels of staffing; however, if the parties cannot agree, the decision of the Contract Administrator shall control. Maintenance tasks should be performed at such hours as to minimize the impact on customers. E. Modification by City. The City may, during the term of this Agreement, modify the list of Parking Facilities listed in the Recitals and on Exhibit A, attached hereto and incorporated herein. It may also modify parking space inventory. Such modifications shall not be considered a breach of this Agreement; nor shall City Council approval be required for such modification unless the management fee increases. 4 25A-8 6. COVENANTS OF THE OPERATOR A. Operator agrees throughout the term of this Agreement to manage, operate, supervise, and maintain the Premises economically, professionally, diligently, effectively, and to the best of its ability. The Operator agrees not to use or permit the use of the Premises for any purpose other than for vehicular parking, nor to engage in or permit any other business activity on, within or from the Premises. The Operator must manage and operate the Parking Facilities in a manner that reflects the City's commitment to customer service, careful stewardship of the public's capital investments, adequate safeguards on City's revenues and professional management of the City's services. B. The Operator, as operator and manager of the Premises, shall comply with and conform to all provisions of law including, without limiting the generality of the foregoing, all requirements of all Federal, State and local enactments, bylaws, and other governmental or municipal regulations now or hereafter in force which relate to the operation, management, and supervision of the Premises, and the Operator shall comply with all Police, Fire, and safety regulations imposed by any governmental, State, or City authorities, or made by property insurance companies, and shall obtain and maintain all licenses and consents necessary for the proper and lawful operation, management, and supervision of the Premises. C. Operator agrees that this Agreement shall not be construed as granting any right of possession, estate, title or interest in the Parking Facilities. Operator agrees that this Agreement shall not impair the City, its agents or employees from entering the Parking Facilities at any time. D. Operator agrees and acknowledges that it is an independent contractor and not an employee of the City. Operator shall maintain complete control over all of its employees and any subcontractors. 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 Operator performs the services which are the subject matter of this Agreement; however, the services to be provided by Operator shall be provided in a manner consistent with all applicable standards and regulations governing such services and the terms of this Agreement. Operator 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. Neither Operator nor City is granted any right or authority to assume or create any obligation on behalf of the other. 7. COLLECTION OF REVENUES AND PAYMENT OF EXPENSES The Operator shall deposit daily in a separate interest bearing account in a chartered bank approved by City all Gross Revenue received by the Operator in the performances of this Agreement. The Operator shall promptly pay when due all operating expenses. All such expenses shall be promptly paid by the Operator from the Gross Revenues deposited as set forth herein. If at the end of a given month Gross Revenues previously collected are insufficient to pay all expenses, the Operator will carry-over that amount, up to Ten Thousand Dollars ($10,000), to the subsequent month(s) where future revenues can be used to reimburse these expenses. For the 25A-9 amount exceeding Ten Thousand Dollars ($10,000) of unreimbursed expenses for a given month the City shall promptly pay the Operator upon submission of the monthly statement. On or before the fifteenth (15th) day of each month, Operator shall remit to City the funds remaining after deducting from Gross Revenues the Operating Expenses and Management Fee for the preceding month. 8. RECORDS AND ACCOUNTS A. Records. The Operator shall, at all times during the term of this Agreement, keep or cause to be kept true and complete books, records, and accounts of all gross receipts from the operation of the Parking Facilities within each of the Parking Facilities. The books, records, and accounts shall be supported by source documents such as computer records and printouts, cash register tapes, and/or other pertinent documents. Computer and/or cash register totals shall be read and recorded by the Operator at the beginning and end of each business day for each exit lane. The Operator shall provide, subject to reimbursement by the City, serially numbered tickets compatible with and for use in operating the parking control equipment provided by the City for monitoring vehicular parking and shall keep a record of said tickets acceptable to the City. B. Accounting Year. For this Agreement, the accounting year shall be January to December. The accounting year shall be maintained throughout the term of the Agreement unless the Contract Administrator approves in writing a different accounting year. Contract Administrator shall approve a change in accounting years only in the event the accounting year in use results in undue hardship for either the Operator or the City and not because of mere convenience or inconvenience. C. Financial Statements. Within ninety (90) days after the end of each accounting year, the Operator shall, at the Operator's sole expense, submit to the City a Statement of Gross Receipts, audited by a Certified Public Accountant, for each accounting year. D. Failure to Submit Financial Statements. In the event Operator fails to submit the financial statements required in paragraph C above by the due date, Contract Administrator may require that Operator pay to the City any and all costs incurred by City to prepare the required financial statement, plus an administrative fee equal to 50% of those costs. E. Audits. All the Operator's books of accounts and records and supporting source documents related to this Agreement or to business operations conducted within or from the Parking Facilities shall be kept and made available at one location within the limits of Orange County, California. The City shall, through its dully 25A-10 authorized agents or representatives, have the right to examine and audit said books of accounts and records and supporting source documents at any and all reasonable times for the purpose of determining the accuracy thereof, and of the monthly statements made and monies received. The City upon request of the Operator and at the City's sole discretion, may authorize the above-referenced books and records and supporting source documents to be kept in a single location outside the limits of Orange County provided the Operator shall agree to pay all expenses, including but not limited to transportation, food, and lodging, necessary for the City to audit said books and records. The full cost of any audit by the City, as determined by the City, shall be borne by the Operator if either or both of the following conditions exist: the audit reveals an underpayment of more than fivepercent (5%) of gross receipts reported and paid by the Operator in accordance with this Agreement when compared with the gross receipts which should have been reported and paid as revealed by audit; 2. The Operator has failed to maintain true and complete books, records, accounts and supporting source documents in accordance with Paragraph A (Records) of this Section. The adequacy of such books, records, accounts, and supporting source documents shall be determined at the sole discretion of the City. Otherwise, the City shall bear the cost of said audit, excluding the aforementioned expenses related to audit of documents kept outside the limits of Orange County. Upon request of the City, the Operator shall promptly provide, at the Operator's expense, necessary data to enable the City to fully comply with any and every requirement of the State of California or the United States of America for information or reports relating to this Agreement. F. Records and Audits: Except as otherwise provided herein, all parking charges shall be recorded by means of cash registers or other comparable devices as provided for Operator's use by City which display to the customer the amount of the transaction and automatically issue a receipt. The registers shall be equipped with devices, which lock, in parking charge total and other transaction numbers and details. Totals registered shall be read and recorded at the beginning and end of each day. Cash register tapes tickets, and reconciliation of the proceeding day's transaction shall be submitted to the City monthly, or as required by the Contract Administrator. Operator shall issue serial numbered tickets for each admission, and shall keep an adequate record of said tickets; both issued and un-issued, and 7 25A-11 shall be responsible for the distribution and collection of monthly parking card and monthly revenues. 2. The Operator's book of account, records, and supporting source documents related to this agreement or to business operations conducted within or from the Premises shall be kept and made available at one location within the limits of the County of Orange. City shall, through its duly authorized agents or representative, have the right to examine and audit said books of account, records, and supporting source documents at any and all reasonable times for the purpose of determining the accuracy thereof, and of the monthly statements of sales made and monies received. 3. The City, upon request of Operator and, at the City's sole discretion, may authorize the above-referenced books and records to be kept in a single location outside the limits of Orange County provided Operator shall agree to pay all expenses including, but not limited to, transportation, food, and lodging necessary for the City to send a representative to audit said books and records. The Contract Administrator shall not exercise said right more than twice each accounting year. 4. The full cost of said audit, as determined by City, shall be paid by Operator if either or both of the following conditions exist: (a) The audit reveals an underpayment of more than five percent (5%) between the balance of revenue due as reported and paid by Operator in accordance with this Agreement, and the balance of revenue due as determined by said audit. (b) Operator has failed to maintain true and complete books, records, accounts, and/or supportive source documents in accordance with this agreement. The adequacy of records shall be determined at the sole discretion of the City. Otherwise, City shall bear the cost of said audit, excluding the aforementioned expenses related to audit of documents kept outside the limits of Orange County. Upon the request of City, Operator shall promptly provide, at Operator's expense, necessary data to enable City to fully comply with any and every requirement of the State of California or the United States of America for information or reports relating to this Agreement, and to Operator's management of the Premises. Such data shall include, if required, a detailed breakdown of Operator's receipts and expenses. G. Failure to Maintain Adequate Records. In addition to any other remedies available to the City at law, in equity, or under this Agreement, in the event the Operator fails to maintain and keep books, records, and accounts relating to the Operator's operations on or from the Parking Facilities and source documents relating thereto, or to make the same available to the City for examination and audit, or to record sales and/or to maintain registers to record sales, or to provide financial statements and other information to the City regarding gross receipts as 25A-12 required by this Agreement, the City, at the City's option, may: Perform such examinations, audits, and/or investigations itself or through contractors, agents, or employees as the City may deem appropriate to confirm the amount of gross receipts payable to the City by the Operator under this Agreement and any and all costs and/or expenses incurred by the City in connection therewith shall be promptly reimbursed to the City by the Operator upon demand. 2. Provide accounting services and/or a system for recording gross receipts, including without limitation, cash registers, for use by the Operator in conducting business transactions upon or from the Parking Facilities, and, at the City's option, maintain personnel on the Parking Facilities to observe and/or record such transactions during the Operator's business hours, or from time to time, all at the Operator's sole cost and expense and, in such event, the Operator shall promptly reimburse the City for any and all costs incurred by the City in connection therewith; and/or 3. Require that Operator pay to the City, upon demand amounts equal to and based on the City's reasonable estimate of the actual gross receipts from parking operations conducted on or from the Parking Facilities. Any such estimate made by the City in good faith shall be conclusive and binding upon the Operator. Costs payable by Operator pursuant to this Section shall include reimbursement to City, for City provided services at such rates as the City may from time to time in good faith establish for such services. In the case of services provided by the City's employees, such rates shall be sufficient to reimburse the City for employees' salaries, including employee taxes and benefits and the City's overhead or, may be the rate for such services that would be charged by a qualified third party or parties, if engaged by the City to perform such services. H. Retention Period/Ownership of materials. All reports, documents, or other materials developed or discovered by Operator or any other person engaged directly or indirectly by Operator to perform Operator's services for the City are to be maintained and retained for a period of three (3) years. Said documents shall be the property of the City without restriction or limitation upon their use. 9. INSURANCE The Operator shall, at its own cost, maintain insurance acceptable to City in full force and effect throughout the term of this Agreement. The policy of policies of insurance maintained by Operator shall provide the following limits and coverage: 1. Commercial General Liability (CGL) or Garage Liability: Insurance Services Office (ISO) Form CG 00 01 12 07 covering CGL on an "occurrence" basis, including products- 25A-1 completed operations, personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. A. "This insurance shall not be cancelled, limited in scope of coverage, or non- renewed until after thirty (30) days' written notice has been given to the Community Development Agency of the City of Santa Ana." B. Such insurance shall be primary. "It is agreed that any insurance maintained by the City of Santa Ana will apply in excess of, and not contribute with, insurance provided by this policy." C. "The City of Santa Ana and its officers, agents, and employees are added as additional insured as respects operation of the named insured at the Parking Garage located at the northeast corner of Broadway and Third Street, the Garage on the south side of Fifth Street between Bush and French Streets, the Garage on the southwest corner of Fifth and Main Streets, the Garage on the northwest corner of Birch and Third Streets, and the surface parking lot located on the northeast corner of Bush and Third Street in the City of Santa Ana." A sample Additional Insured Endorsement is attached hereto and incorporated herein as Exhibit C. The Additional Insured Endorsement shall be amended periodically to reflect all parking garages/parking lots that Operator manages on behalf of the City. 2. Garage Keeper's Legal Liability: with limits no less than $2,000,000 covering the Operator and the City against claims, liabilities, losses, or suits covering exposures for loss of or damage to vehicles in Operator's care, custody and control. 3. Commercial Crime including Employee Dishonesty: with limits not less than $100,000 for Employee Dishonesty and $10,000 for depositors forgery, loss of money and securities, inside or outside the premises and including safe robbery or burglary 4. Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. 5. General Insurance Requirements: Operator agrees to deposit with City, on or before the effective date of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisions of the Agreement have been complied with and to keep such insurance in effect and the certificates therefore on deposit with City during the entire term of this Agreement. City shall retain the right at any time to review the coverage, from, and amount of the insurance required hereby. If, in the opinion of the City, the insurance provisions in this Agreement do not provide adequate protection for City and for members of the public using the Premises, City may require Operator to obtain insurance sufficient in coverage, form, and amount to provide adequate protection. City's requirement shall be reasonable, but shall be designed to assure protection from and against the kind and extent of the risks, which exist at the time a change in insurance is required. 10 25A-14 City shall notify Operator in writing of changes in the insurance requirements, and if Operator does not deposit copies of acceptable insurance policies with City incorporating such changes within sixty days (60) of receipt of such notice, Operator shall be in default without further notice to Operator, and City shall be entitled to exercise all legal remedies. The procuring of such required policy or policies of insurance should not be construed to limit Operator's liability hereunder or to fulfill the indemnification provisions and requirements of this Agreement. 10. INDEMNIFICATION The Operator shall indemnify and hold the City of Santa Ana, its officers, employees and agents harmless from and against: (a) Any and all liability, penalties, losses, damages, costs and expenses, demands, causes of action, claims or judgments arising from or growing out of any injury to any person or persons, or any damage to any property as a result of any accident or other occurrence during the term of this Agreement occasioned by any negligent act or omission of the Operator, its officers, employees, agents, servants, subtenants, concessionaires, licensees, contractors, invitees or permittees, or arising from or growing out of the negligent use, maintenance, or operation of the Premises during the term of this Agreement. (b) From and against all legal costs and charges, including reasonable attorney's fees, incurred with respect to any of such matters and the defense of any action out of the same, or in discharging the Premises or any part thereof from any and all liens, charges or judgments which may accrue or be placed thereon by reason of any negligent act or omission of the Operator. (c) The Operator shall further indemnify and hold harmless the City from any loss of Gross Revenue due to dishonesty, theft, or negligence of any officer, agent, or employee of the Operator. The Operator may protect itself from such liability for such fidelity losses through higher fidelity bonding of its officers, agents, or employees than is required by this Section, but failure to do so shall in no way relieve the Operator from its obligation to indemnify the City of any such losses. (d) Notwithstanding the foregoing, nothing herein shall be construed to require Operator to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Contract. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Operator. 11. PUBLIC PARKING RATES A. Parking Rates. The City shall determine parking rates. The 25A-15 implementation of any parking rate adjustment shall be the responsibility of the Operator. As part of such implementation, the Operator shall be responsible for replacement of all parking rate signs in accordance with Section 12 ("Maintenance Obligations of Operator"), and for notifying the public of the new parking rates and their effective date. Such public notice shall be given by posting notices conspicuously at each entrance and exit to Parking Facilities for a minimum of ten (10) business days before the date the adjustment becomes effective. Parking rates shall at all times be posted by Operator within one place at each entrance and exit to the Parking Facilities on clearly legible signs of the type, character and locations approved by the Contract Administrator. Operator must install new parking rate signs within one month of the start date of this Agreement. All new signs must be compatible with existing signs at the Facility and be approved by the Contract Administrator. B. Validated Parking. Validated parking shall be permitted as authorized by the City. The Operator will bill those agencies authorized to validate parking tickets for their respective validations. The Operator shall make no other arrangements for validation without prior written authorization by the Contract Administrator. C. Monthly Parking Permits. The Operator shall issue permits and collect monthly fees at the Parking Manager's office at the Parking Facilities and provide for online payment capabilities. The City shall establish monthly parking rates. The Operator shall be responsible for monitoring payment for monthly permits and for invalidating un-renewed permits the first day of each month. D. There shall be no free parking except as follows: One space per cashier booth in each Facility to accommodate the Operator's employees. 2. City of Santa Ana and/or their contractor's vehicles only while performing construction or conducting building and grounds maintenance/repair activities. 12. MAINTENANCE OBLIGATIONS OF OPERATOR A. The Operator expressly agrees to maintain the Parking Facilities in a safe, clean, sanitary condition, to the complete satisfaction of the Contract Administrator, and in compliance with all applicable laws. The Operator shall conduct all routine maintenance in accordance with the Parking Facilities Maintenance Schedule (Exhibit A) attached hereto and made a part hereof, all of which shall be a reimbursable operating expense. Operator shall make minor repairs (defined as repairs costing $500.00 or less per incident) promptly and as needed. Repairs in excess of $500.00 which do not create an imminent threat to public safety shall be made after consultation with the Contract Administrator, and as he/she directs. B. The Operator shall be responsible for routine daily maintenance of the Parking Facilities including, but not limited to: 12 25A-16 Keeping the Parking Facilities, including stairwells, free and clear of rubbish, litter, and animal or human waste. If animal and/or human waste are present, Operator shall clean and sanitize the affected areas as needed. 2. Providing janitorial services to the employee restrooms, including servicing clogged plumbing and cleaning floors and fixtures. Maintenance of attendant booths, Parking Manager's office and storage areas to assure a clean and neat appearance 4. Elevator cleaning including elevator lobby area. 5. Checking ceiling-mounted signage for loose connections or damage. 6. Checking illuminated signs for damage and necessary bulb replacement. 7. Checking parking and revenue control equipment for proper operations. 8. Immediate removal of graffiti from buildings and walls. The Contract Administrator shall approve method(s) used to remove graffiti. C. The Operator shall provide containers for trash and garbage as approved by the City and provide for daily removal of trash and garbage from the Parking Facilities. D. The Operator shall be responsible for weekly scheduled machine sweeping in each parking structure and each surface lot, and semi-annual garage steam cleaning. Any areas not accessible to machine sweeping shall be swept by hand prior to the mechanical sweeping process. The first steam cleaning shall be completed no later than July 2013 and every six (6) months thereafter. E. The Operator shall remove excessive accumulations of grease or oil on parking surfaces on a weekly basis. Any grease or oil spill that constitutes a hazard shall be removed immediately. F. The Operator shall maintain adequate portable fire extinguishers, charged and ready for use, in accordance with governing fire regulations and ordinances. G. The Operator shall keep and maintain, to the satisfaction of the City, all signs and graphics in a clean and legible condition free from graffiti. Any replacement of signs or additional signs shall be provided by the Operator and the cost thereof shall be reimbursable by the City. Replacement materials shall be of the same quality material, letter style, design, and color as other similar signs within the facility. All signs placed by the Operator in the Parking Facilities, attendant booths, or Parking Manager's office must have the prior approval of the Contract Administrator. 13 25A-17 H. The Operator shall keep all glass surfaces in and around attendant booths, Parking Manager's office, stairwells and elevators clean. The Operator shall keep all parking control equipment, including housings, clean and well maintained as recommended by service manuals. J. The Operator shall be responsible for maintaining all painted surfaces on parking equipment, attendant booths, posts, curbs and islands. Painting shall be provided in a professional manner including but not limited to surface preparation and priming as needed. The Contract Administrator must approve paint colors. If the Operator fails to maintain or make repairs or replacements as required herein, the Contract Administrator shall notify the Operator in writing of said failure. Should the Operator fail to correct the situation within three (3) days after receipt of written notice, the Contract Administrator may make the necessary correction or cause it to be made and the cost thereof, including but not limited to the cost of labor, materials, equipment, and an administrative fee equal to twenty five percent (25%) of the sum of such items, shall be paid by the Operator by means of deduction from the monthly compensation due the Operator. 13. RESPONSIBILITIES AND REQUIREMENTS OF OPERATOR The Operator shall, in the manner and method of operating the Parking Facilities, assure the highest degree and standards of courtesy, politeness, conduct, and demeanor on the part of its officers, agents, employees, and representatives, and shall at all times during the term of this Agreement, comply fully with the following conditions and requirements: A. The Operator shall charge and collect from all persons utilizing the parking facilities within the Parking Facilities the fees or charges established by the City. B. The Operator shall conduct its operations in a manner so as not to annoy, disturb, or be offensive or rude to customers, patrons, or other users of the Parking Facilities. C. Language Proficiency. The Operator shall select personnel that have the ability to read signs, labels, work schedules and simple instructions in both English and Spanish; understand and follow oral directions in English and Spanish; write simple messages in English and Spanish, and speak both languages sufficiently to communicate clearly with the public. D. Parking Manager. The Operator shall select and appoint a Parking Manager whose responsibility shall be overseeing the operation of the Parking Facilities. Such person must be highly qualified, experienced, and successful manager of parking facilities, vested with full power and authority with respect to the method and manner of operating the Parking Facilities. The Parking Manager shall be present on-site a minimum of eight hours per day between the hours of 7:00 am and 6:00 pm. The Parking Manager shall maintain an office on-site and shall be available upon 15 minutes notice during regular business hours. At all times 14 25A-18 during his/her absence from the Parking Facilities, a shift supervisor shall be in charge of the parking operation and available at such on-site location. E. Conduct of Employees. The Operator shall control the conduct, demeanor, and appearance of its officers, agents, employees, and representatives. Cashiers and shift supervisors while on duty shall wear uniforms with clearly visible and readable nametags, which shall at all times be maintained in a neat and clean condition. The Contract Administrator shall approve the uniforms and nametags. All personnel shall be trained by the Operator to render a high degree of courteous and efficient service, and it shall be the responsibility of the Operator to maintain close supervision over such personnel to assure a high standard of service to patrons of the Parking Facilities. Upon objection by the Contract Administrator to the unprofessional conduct, demeanor, or appearance of such personnel, the Operator shall immediately take all steps necessary to correct the conduct, demeanor, or appearance, which is the cause of the objection. F. Employee Honesty. The Operator shall take every precaution to protect the City's revenue, and to ensure that all sums due and owing the City from patrons of the Parking Facilities are properly assessed, collected, accounted for, and deposited into a depository selected and approved by the City. The Operator shall not knowingly employ or keep in its employ for purposes of conducting operations under this Agreement any individual who has been convicted in a court of competent jurisdiction of theft or misappropriating funds. G. Monthly Parking Permits. In addition to the monthly fee, the Operator shall collect a $25 administrative fee for the establishment of each new monthly account. Records for the administrative fee shall be maintained for twelve months after the account has been closed. Should the cardholder return with his/her previously assigned card key within that twelve-month period, no additional administrative fee shall be charged. The Operator shall charge a $15 replacement fee for replacement of a lost card key. The Operator shall identify administrative fees and fees collected for replacement card keys separately on the daily reports and in other records and accounts and shall include the fees collected in the daily receipts. H. Unauthorized Activities. The Operator shall not engage in nor permit any of its officers, agents, employees, or representatives to engage in the sale of supplies, products, or services of any kind, except those authorized by this Agreement, at retail or wholesale, on or from the Parking Facilities, nor install, maintain or operate or permit the installation, maintenance or operation on the Parking Facilities of any vending machine or device designed to dispense or sell food beverages, tobacco products or merchandise of any kind whether or not included in the foregoing categories. 1. Daily Inspection. The Operator shall inspect the Parking Facilities described in this Agreement on a daily basis to determine if any inherently or potentially dangerous conditions or defects exist, said inspection to include, but not be 15 25A-19 limited to, the following: • Abnormal accumulations of grease or oil on the pavement • Pot holes • Dangerous grade changes • Broken glass • Broken tire guards • Protruding pipes • Leaking gas tanks • Broken or burned out lighting fixtures • Graffiti • Conditions likely to cause a pedestrian to trip or fall • Hazards to tires, and other unsafe conditions The results of each daily inspection shall be recorded in a written report and maintained by Operator. Operator shall notify Contract Administrator immediately of any hazardous conditions or defects. If the Operator defaults in the performance of any covenant, condition, or agreement contained in this clause, and such default is not corrected within twenty-four (24) hours after the Operator receives written notice from the City, the City may impose a penalty as set forth in the Liquidated Damages term (Section 29) hereof, for each day the Operator remains in default, or the City may terminate this Agreement and take over possession and operation of the Parking Facilities in accordance with the provisions of Section 28 ("Termination By City") herein. 14. HAZARDOUS MATERIALS 13.1. Prohibited. The use and storage of Hazardous Materials by the Operator in the Parking Facilities is prohibited except as necessary to perform the services required under this Operating Agreement. To the extent the Operator must use Hazardous Materials to perform the services required under this Operating Agreement, the Operator shall comply with the following conditions: a. The Operator shall comply with all Federal, State and local laws and regulations regarding the use, storage and disposal for such Hazardous Materials. b. The Operator shall be solely responsible for obtaining all permits necessary to use, store, or dispose of the Hazardous Materials it uses. c. The Operator shall take all necessary precautions to prevent any Hazardous Materials it uses from entering into any storm or sewage drain system, or into the air or groundwater or from being released on the Parking Facilities. 16 25A-20 d. The Operator shall be solely and fully responsible for the release of any Hazardous Material that it uses. The Operator shall timely comply with all requirements of all appropriate governmental agencies and authorities in its investigation, remediation and clean up of any release of a Hazardous Material. If the Operator does not promptly commence and diligently pursue the remediation and clean up any release of such Hazardous Material, the City, in its discretion, may pay, to have the release remediated and cleaned up, and the Operator shall reimburse the City within fifteen (15) business days of City's demand for payment. The failure to commence remediation and clean-up and to provide City with a schedule for diligent completion of the remediation within sixty (60) days after discovery of such release, or danger of release, of such Hazardous Material shall constitute prima facie evidence of failure to promptly commence remediation. e. The Operator agrees to defend, indemnify and hold harmless the City, its trustees, officers, officials and employees from any and all losses, claims, actions costs, expenses, judgments, subrogation or other damages resulting from injury to any person or damage to property, including, without limitation, the cost of any cleanup and remediation of Hazardous Materials, which the City may sustain as a result of the presence, use, storage or cleanup of Hazardous Materials in the Parking Facilities that are attributable in any manner to the Operator. The obligations set forth in this Section shall survive the expiration or earlier termination of this Operating Agreement. 13.2. Reporting Obligation. Upon becoming aware of any release of a Hazardous Material in a Parking Facility, the Operator shall immediately report such release to the City and to any other appropriate public agency. The Operator shall immediately report the release of any Hazardous Material to the City even where the quantities released would not be otherwise reportable to another public entity. This reporting obligation exists with regard to any release to Hazardous Material within a Parking Facility and is not limited to releases of those Hazardous Materials used by the Operator. 15. DAMAGE BY OPERATION If Operator, its agents or employees, causes any injury, damage or loss at any Parking Facility, Operator shall repair, at its sole cost and expense, such injury, damage or loss at City's direction and upon City's prior approval. City reserves the right to perform such repairs, and bill Operator for such costs and deduct such costs from any compensation then due and owing to the Operator. The rights of City set forth in this Section are in addition to, and do not in any manner limit, any right of City to be indemnified by Operator for any such injury, damage or loss. 16. IMPROVEMENTS AND ALTERATIONS No structures, improvements, or facilities shall be constructed, erected, altered, or made within the Premises without the City's prior written consent. At all times during the term of this Agreement, City shall have the right to enter the Premises for the purpose 17 25A-21 of revising the automobile parking spaces; changing or rearranging the entrances and exits; using temporarily or permanently such portions thereof as are necessary for construction of improvements, and/or repairs thereto; or for the installation of improvements, or other facilities necessary for the efficient operation and maintenance of the Premises. 17. CONDITIONS GOVERNING IMPROVEMENTS AND ALTERATIONS a. No facilities shall be installed or maintained, or alternations or additions made in, to, or upon the Parking Facilities by the Operator without the prior written consent of the Contract Administrator, and all such work shall be completed in accordance with plans approved and conditions imposed by the Contract Administrator. Upon completion of said facilities, the Operator shall furnish to the Contract Administrator, at no charge two complete sets of as built drawings and detailed costs of the facilities constructed and installed. b. All facilities, alterations, or additions constructed by the Operator within the Parking Facilities, including the plans and specifications therefore, shall conform in all respects to the applicable statutes, ordinances, building codes, rules, and regulations of the City and such other authorities, as may have jurisdiction. The City's approval given as provided shall not constitute a representation or warranty of such conformity, and conformance shall remain the Operator's responsibility. The Operator shall procure all permits necessary for such construction. The cost of all permits and construction by the Operator shall be at the Operator's sole cost and expense. 18. MECHANICS LIENS OR STOP NOTICES The Operator shall at all times defend, indemnify and hold harmless the City, its officers, employees and agents against all claims, losses, demands, damages, cost, expenses, or liability costs for labor or materials in connection with construction, repair, alteration, or installation of structures, improvements, equipment, or facilities within the Parking Facilities, and from the cost of defending against such claims, including attorney fees and costs. In the event a lien or stop-notice is imposed upon the Parking Facilities as a result of such construction, repair, alteration, or installation, the Operator shall either: A. Record a valid Release of Lien, or B. Procure and record a bond in accordance with Section 3143 of the Civil Code, which frees the Parking Facilities from the claim of the lien of stop-notice and from any action brought to foreclose the lien. If the Operator fails to accomplish either of the two optional actions above within fifteen (15) days after the filing of such a lien or stop-notice, the Agreement shall be in default and shall be subject to immediate termination. 18 25A-22 19. REMOVAL AND RESTORATION Subject to the provisions of Section 31 ("Title To Improvements"), upon termination of this Agreement, the Operator shall redeliver possession of the Parking Facilities and equipment to the City in substantially the same condition that existed immediately prior to the Operator's entry thereon, reasonable wear and tear, damage by the elements, earthquakes, acts of God, war and any act of war, excepted. 20. MAJOR REPAIRS AND DAMAGES A. City shall be responsible for all major structural repairs, any major repairs, surfacing, and resurfacing of the Premises. B. In the event of damage or destruction of any of the Parking Facilities, which are a part of the Premises, which, in the opinion of City, makes the continued operation of such garage unfeasible or uneconomical, City may terminate this Agreement as to such Facility. 21. OPERATOR IS SOLE EMPLOYER- DUTY TO INFORM Operator agrees to notify each employee of the Operator prior to the time such employee begins to work at the Parking Facilities, and all unions or bargaining units representing such employees, 1) that the Operator is the only employing agency and employer, 2) that the City of Santa Ana is not an employer with regard to the parking operation, but rather is a contractor hiring the Operator to operate the Parking Facilities in accordance with the terms of this Agreement, and 3) that continued employment in connection with operation of the Parking Facilities cannot be expected beyond the term of this Agreement. Operator agrees to inform each employee in writing of the above and to obtain a signed acknowledgement by the employee of such notification. 22. OPERATING MANUAL a. The Operator shall be responsible for developing written procedures based upon administrative guidelines, procedures and directions promulgated by the City relating to the management, operation and maintenance of the Parking Facilities. All such guidelines, procedures and directions shall be consistent with the terms and conditions of this Agreement. Operator shall maintain a current Standard Operating Procedures Manual (SOP Manual) specifying the operating procedures to be followed by the Operator for operating within each of the Parking Facilities. b. Within thirty (30) days after award of this Agreement, a copy of the written procedures for operations, management, maintenance, cash handling and auditing procedures for 19 25A-23 each Parking Facility shall be submitted to the Contract Administrator for review and approval. Thereafter the Operator shall make necessary revisions on an as-needed basis, but at least on an annual basis and no later than January 31 of each year, submitted to and approved, in writing by the Contract Administrator shall approve any subsequent changes or revisions in writing. The SOP Manual shall be kept up to date at all times and pertinent parts shall be provided and explained to each of the Operator's employees. 23. ASSIGNABILITY The parties agree that the expertise and experience of Operator are material considerations for this Agreement. Operator may not assign the performance of any obligation or interest under this Agreement without the prior written consent of City, not to be unreasonably withheld or delayed. . Any attempt by Operator to assign this Agreement in violation of this Section will be voidable at City's sole option. If the Operator hereunder is a corporation or an unincorporated association or partnership, the transfer of any stock or interest in said corporation, association, or partnership in the aggregate exceeding twenty-five percent (25%) shall be deemed an assignment within the meaning of this clause. 24. NOTICES All notices and other communications required or permitted to be given under this Agreement must be in writing and must be personally served, or mailed, postage prepaid via U.S. mail, or sent via courier service, addressed to the respective parties as follows: To City: Contract Administrator City of Santa Ana Community Development Agency P.O. Box 1988, M-25 Santa Ana, CA 92702 20 To Operator: Central Parking System, Inc 3420 Bristol Street, Suite 225 Costa Mesa, CA 92626 Attn: Muhammad Mansoor With a Copy To: Central Parking System Attn: Legal Department 24012 I't Ave S. Nashville, TN 37212 25A-24 Notice will be effective on the date personally delivered or if sent by courier service, on the date of receipt. If mailed, notice will be effective three (3) days after deposit in the mail. The parties may change their respective addresses in accordance with the provisions of this Section. 25. NONDISCRIMINATION During the performance of this Agreement, the Operator agrees as follows: A. Operator will not discriminate against any employee or applicant for employment because of race, color, religion, sex, disability, or national origin. Operator will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, disability, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment of compensation: and selection of training, including apprenticeship. The Operator agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the City setting forth the provisions of this nondiscrimination clause. B. Operator will, in all solicitation or advertisements for employees placed by or on behalf of the City, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, disability, or national origin. 26. RESTRICTIONS AND REGULATIONS This Agreement, including the Parking Facilities and the operations thereof by the Operator, shall be subject to: A. Any and all applicable rules, regulations, order and restrictions that are now in force, or which the City may hereafter adopt. B. Any and all orders, directions or conditions issued, given or imposed by the Contract Administrator with respect to the use of the roadways, driveways, curbs, sidewalks or parking areas, and public areas adjacent to the Parking Facilities. C. Any and all applicable laws, ordinances, statutes, rules, regulations or orders of any governmental authority lawfully exercising authority over the Operator's business hereunder. 21 25A-25 The City shall not be liable to the Operator for any damage to, or for any diminution or deprivation of the Operator's rights hereunder on account of the exercise of any such authority as in this clause provided, nor shall the Operator be entitled to terminate the whole or any portion of this Agreement by reason thereof unless the exercise of such authority shall so interfere with the Operator's operation of the Parking Facilities in the exercise of its rights under this Agreement as to constitute a termination in whole or in part of this Agreement by operations of law in accordance with the laws of the State of California. 27. DEFAULT A. Any material failure or delay by either party to perform any material term or provision of this Agreement, constitutes a default under this Agreement. Except as otherwise provided below, upon the occurrence of a default, the non-defaulting party may terminate this Agreement and may institute legal action to cure, correct, or remedy the default or to recover damages for the default. B. Prior to terminating this Agreement or instituting any legal action due to a default, the non-defaulting party shall give written notice of the default to the defaulting party, specifying the nature to the default. The defaulting party shall have thirty (30) days to cure, correct, or remedy the default, and if the default is cured, corrected, or remedied within such time period, the non-defaulting party shall be entitled to terminate this Agreement or institute legal action due to the default. C. Legal actions instituted due to any default must be instituted in the court located in the County of Orange, State of California. D. The rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 28. TERMINATION BY CITY A. Termination with Cause. In addition to any other legal or equitable rights available to the City hereunder, the City shall have the right to terminate and cancel this Agreement in its entirety and all rights ensuring there from upon five (5) days written notice if any one or more of the following events shall occur: The Operator fails to duly and punctually deposit the gross receipts and deliver the deposit receipt to the City, or fails to make any other payments required hereunder when due to the City within two (2) business days after written notice from the City of such failure to comply. 22 25A-26 2. Failure of the Operator to maintain a quality of service satisfactory to the Contract Administrator as required by Sections 12 and 13 hereof, after service of a Three-Day Notice to correct the unsatisfactory condition. The happening of any act, which results in the suspension or revocation of the rights, power, licenses, permits and authorities necessary for the conduct and operation of the Parking Facilities as herein authorized. 4. The transfer of the interest of the Operator under this Agreement by operation of law, or otherwise, to any other person, firm or corporation. Any substantial change in the ownership or proprietorship of the Operator, which in the opinion of the City, is not in the best interest of the City or the public. Failure of the Operator to keep, perform and observe each and every other promise, covenant, condition and agreement set forth in this Agreement on its part to be kept, performed or observed within three (3) days after receipt of written notice of default there under from the City, except where fulfillment of the Operator's obligation requires activity over a period of time and the Operator shall have commenced to perform whatever may be required for fulfillment within three (3) days after receipt of such notice and continues such performance without interruption except for causes beyond its control. 7. The levy of any attachment or execution, or the appointment of any receiver, or the execution of any other process of any court of competent jurisdiction which does or as a direct consequence of such process will interfere with the Operator's occupation of the Parking Facilities and will interfere with its operations under this Agreement, and which attachment, execution, receivership, or other process of such court is not vacated, dismissed, or set aside within a period of thirty (30) days. The Operator shall become insolvent, or shall take the benefit of any present or future insolvency statute, or shall make a general assignment for the benefit of creditors, or file a voluntary petition in bankruptcy, or a petition or answer seeking an arrangement for its reorganization, or the readjustment of its indebtedness under the federal bankruptcy laws or under any other laws or statute of the United States, or of any state law, or consent to the appointment of a receiver, trustee or liquidator of all or substantially all of its property. 9. By order or decree of a court the Operator shall be adjudged bankrupt, or an order shall be made approving a petition filed by any of the creditors, or by any of the stockholders of the Operator seeking its reorganization or the readjustments of its indebtedness under the federal bankruptcy laws, or under law or statute of the United States, or any state thereof. 23 25A-27 10. A petition under any part of the federal bankruptcy laws, or an action under any present or future solvency law or statute shall be filed against the Operator and shall not be dismissed within thirty (30) days after the filing thereof. 11. By or pursuant to, or under authority of any legislative act, resolution or rule of any order or decree of any court, governmental board, agency or officer having jurisdiction, a receiver, trustee, or liquidator shall take possession or control of all or substantially all of the property of the Operator and such possession or control shall continue in effect for a period of thirty (30) days. 12. Cessation or deterioration of service for a period, which in the opinion of the City, materially and adversely affects operation of the public service required to be performed by the Operator under this Agreement. 13. Any lien is filed against the Parking Facilities because of any act or omission of the Operator and is not removed within thirty (30) days. 14. The Operator shall voluntarily abandon, desert, vacate or discontinue its operations of the business herein authorized in the Parking Facilities. Notwithstanding any of the foregoing provisions of this Section, the City shall have the absolute right to forthwith terminate and cancel this Agreement and take over the operation of the Parking Facilities, either by itself or through another operator of its choice, if Parking Facilities should become closed by reason of the Operator being unable for any reason whatsoever, to maintain in its employ the personnel necessary to keep the Parking Facilities open for public patronage, including, but not limited to, delays caused by work stoppage. In the event that the City shall so elect to terminate this Agreement, then the City may recover from the Operator: (a) Any amount necessary to compensate the City for the detriment proximately caused by the Operator's failure to perform its obligations under this Agreement or which in the ordinary course of business would be likely to result there from, including, but not limited to, the cost of recovering possession of the Parking Facilities, including necessary repair, renovation and alteration of the Parking Facilities, reasonable attorney's fees, expert witness costs, and any other reasonable costs; and (b) Any other amount, which the City may by law hereafter be permitted to recover from the Operator to compensate the City for the detriment caused by the Operator. The Operator shall construe no delay or omission of the City to exercise any right or remedy as a waiver of such right or remedy or any default hereunder. The acceptance by the City of any sums hereunder due shall not be (i) a waiver of any preceding beach or default by the Operator of any provision thereof, other than the failure of the Operator to pay the particular sum accepted, regardless of the City's knowledge of such preceding beach or default at the 24 25A-28 time of acceptance of such sum, or (ii) waiver of the City's right to exercise any remedy available to the City by virtue of such breach or default. No act or thing done by the City or the City's agents during the term of this Agreement shall be deemed an acceptance of the surrender of the Parking Facilities, and no agreement to accept a surrender shall be valid unless in writing and signed by the City. B. Termination Without Cause. The City reserves the right, at any time during the term of this Agreement, at the sole discretion of the City, to terminate this Agreement without cause; provided, however, that if any such termination is to be effected, the City shall give the Operator written notice thereof not less than one hundred twenty (120) days prior to the effective date of such termination. C. Consequences of Termination. In the event of termination, Operator shall deliver to City copies of all reports, documents, City-owned equipment and materials within ten (10) days after termination. Upon receipt thereof, City shall pay Operator for all services performed and reimbursable expenses incurred to the date of termination. 29. LIQUIDATED DAMAGES THE PARTIES HERETO AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO DETERMINE THE ACTUAL DAMAGE TO THE CITY IF OPERATOR WERE TO TERMINATE THIS AGREEMENT PRIOR TO EXPIRATION OR OTHERWISE BREACH. IN ADDITION TO THE SERVICES PROVIDED, CITY EXPECTS TO RECEIVE OTHER BENEFIT FROM OPERATOR'S SERVICES. THE PARTIES MUTUALLY AGREE THAT THE TERMS SET FORTH IN THIS SECTION ARE ACCEPTABLE TO EACH PARTY AND ARE A REASONABLE ESTIMATE OF CITY'S LOSS IF OPERATOR FAILS TO COMPLETE SERVICES IN ACCORDANCE WITH THE SCHEDULE OF PERFORMANCE. BY SIGNING THIS BELOW, CITY AND OPERATOR ACKNOWLEDGE THAT THE INCENTIVE AMOUNTS SET FORTH BELOW HAVE BEEN AGREED UPON AS THE PARTIES' REASONABLE ESTIMATE OF CITY'S DAMAGES. "CITY" "OPERATOR" By: By: a. Failure to make daily deposits of all receipts, for each day, or portion thereof, that deposit is delayed beyond the deposit deadline. (The only exception shall be for Acts of God, such as earthquakes, in which delay is beyond the Operator's control.) One Hundred Dollars ($100) a day for each failure to perform. 25 25A-29 b. Failure to deliver, on time, required items such as reports, schedules, manuals, budgets or other materials as specified in the Operating Agreement. Twenty-five dollars ($25) per item or set of materials. C. Failure to have revenue control tickets available and installed and each and every ticket-dispensing machine. Fifty dollars ($50) per failure. d. Failure to maintain accurate monthly parking records, including monthly parking applications, accurate access log, notification to the City of delinquent accounts, and maintenance of activation/deactivation of monthly access. The current applicable monthly rate per record or access occurrence. e. Failure to properly notify the City of any unpaid individual monthly permit account or event parking pass. The current applicable monthly rate for each month that the unpaid individual monthly permit remains active after the seventh day (7) of each month or the maximum daily parking rate for each unpaid event parking pass that was created and used at a Parking Facility. f. Failure to follow the Routine Maintenance and Minor Repair requirements in any part. Twenty-five dollars ($25) per occurrence. g. Failure to maintain revenue control equipment to ensure accuracy and Consistency of operations or failure to schedule or follow up on the repair of revenue control equipment malfunctions within twenty-four (24) hours of occurrence. One hundred dollars ($100) per occurrence per day. Notification of Failure to Perform Upon determining the existence of a breach under a-g above, the Contract Administrator shall issue a written notice to Operator of the occurrence of such breach and the City's claim for liquidated damages. i. The notice of breach shall become final unless the City receives from Operator not later than ten (10) business days after the date of the notice of breach, a written statement from Operator, accompanied by evidence, that the breach did not occur. If such written statement and evidence is not received by the City Manager within ten (10) business days of the date of the notice of breach, the Contract Administrator's determination shall be final. Operator agrees that the Contract Administrator shall deduct the amount of such liquidated damages from the next monthly payment due to Operator. ii. If the Operator contests the imposition of a liquidated damage, the Contract Administrator shall review Operator's written statement and evidence as soon as reasonably possible, and render a decision sustaining or reversing the determination that a breach occurred and the claim for liquidated damages. Contract Administrator shall deliver to Operator a written notice of such decision no later than ten (10) business days after receipt of Operator's written statement and evidence. 26 25A-30 30. TRANSITION OF OPERATION AND MANAGEMENT Upon the expiration of this Operating Agreement or its earlier termination, the Operator agrees to cooperate fully with the City in the smooth and businesslike transition of the management and operation of the Parking Facilities to a new operator. 31. TITLE TO IMPROVEMENTS Title to all equipment and improvements shall remain with the City. All signs and gate arms installed by the Operator shall immediately upon installation become the property of the City. 32. INSPECTION The City and/or its authorized representatives shall have the right at all reasonable times to inspect the Parking Facilities to determine if Operator is complying with the provisions of this Agreement. The City reserves the right, at any time, at the request of the Contract Administrator to call a conference of representatives of the City and the Operator for the purpose of making a complete inspection of the Parking Facilities and reviewing the operation, maintenance, quality of service and such other items as the City may wish to review. If evidence of discrepancies is discovered in the operational and accounting procedures being conducted at the Parking Facilities, relative to funds received and maintained, the City shall have the right to make immediate contact with the responsible employee of the Operator, at his/her workstation without any prior required notice to affected employee or the Operator. City further reserves the right to have made available for immediate inspection and review any and all materials, receipts, records and equipment relative to all revenues and the accounting for all funds maintained at the Parking Facilities, to resolve any issue at questions and provide for the integrity and security of the operations being conducted. The City reserves the right, at any time, to install surveillance equipment, both audio and visual, anywhere on the Parking Facilities to monitor operations and procedures for security purposes. No further notice of installation shall be given to the Operator. 33. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Operator, 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 Operator. The parties agree 27 25A-31 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 Operator nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any parties, which are not embodied herein. 34. COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS Operator shall carry out all services pursuant to this Agreement in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, mechanical and electrical codes, as they may apply, and all other provisions of the City and its Municipal Code (as they may apply), and all applicable disabled and handicapped access requirements, including, without limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code § 4450 et seq., and the Unruh Civil Rights Act, Civil Code § 51 et seq. 35. MISCELLANEOUS A. Survival of Provisions. If any part of this Agreement is for any reason found to be unenforceable, all other parts nevertheless remain enforceable. B. This Agreement binds an inures the benefit of the parties and their respective successors. C. Time of the Essence. Time is of the essence regarding this Agreement. D. Agreement Organization. The various heading and numbers herein, the grouping of provisions of this Agreement into separate clauses and paragraphs, and the organization hereof, are for the purpose of convenience only, and shall not be considered otherwise. E. Inspection. City or its authorized representative shall have the right at all times to inspect the Premises to determine if the provisions of this Agreement are being complied with. F. Conflict of Interest. Operator shall avoid all conflict of interest or the appearance of conflict of interest in performance of this Agreement. G. Successors in Interest. Unless otherwise provided in this Agreement, the terms, covenants, and conditions contained herein shall apply to and bind the heirs, successor, executors, administrators, and assigns of all the parties hereto, all of whom shall be jointly and severely liable hereunder. 28 25A-32 H. Partial Invalidity. If any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby. 1. Waiver of Rights. The failure of City or Operator to insist upon strict performance of any of the terms, covenants or conditions of this agreement shall not be deemed a waiver of any right or remedy that City or Operator may have and shall not be deemed a waiver of the right of the Agreement thereafter. J. Governing Law. This Agreement must be construed, and its performance enforced, under California law. K. No Property Interest. Operator agrees that this Operating Agreement shall not be construed as granting any right of possession, estate, title or interest in the Parking Facilities. Operator agrees that this Operating Agreement shall not impair the City, its agents, or employees from entering the Parking Facilities at any time. L. Drug Free Workplace. Operator certifies that it has established the following drug-free workplace policy: 1. The unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the workplace for any employee. 2. The employees of Operator will be required to: a) Abide by the terms above in statement 1. b) Notify appropriate officials of the City of any criminal drug statute conviction for a violation occurring in the workplace not later than five days after such conviction. c) Within 30 days of receiving such notice, appropriate personnel action will be taken by Operator against such employee, up to and including termination. 36. ATTACHMENTS TO AGREEMENT This Agreement includes the following, which are attached hereto and made a part hereof: Exhibit A - RFP 12-060: Parking Operations and Management Services Exhibit B - Operator's Proposal Exhibit C - Additional Insured Endorsement 29 25A-33 IN WITNESS WHEREOF, the parties have executed this Agreement the date and year first above written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By: Lisa Storck Assistant City Attorney CITY OF SANTA ANA Kevin O'Rourke Interim City Manager OPERATOR By: Central Parking System, Inc. Edward E. Simmons Executive Vice President Tax ID# 62-0789510 APPROVED AS TO FORM: By: Tracy H. Pelham Associate Council 30 25A-34 REQUEST FOR PROPOSALS RFP 12-060 PARKING OPERATIONS AND MANAGEMENT SERVICES DOWNTOWN PARKING FACILITIES CITY OF SANTA ANA Community Development Agency 20 Civic Center Plaza Santa Ana, CA 92701 Gabriela P. Lomeli Project Manager (714) 647-5479 Office (714) 647-6549 Fax glomeli(aD-santa-ana.orq KEY RFP DATES: Issue Date: Mandatory Pre-proposal Meeting: Deadline to Submit Questions: Response Posted on City Website Proposal Due Date: Presentation/Interviews: Projected Award Date: Tuesday, November 20, 2012 Thursday, November 29, 2012 at 9:30 a.m. Thursday, December 6, 2012 at 5:00 p.m. Thursday, December 13, 2012 at 5:00 p.m. Wednesday, December 19, 2012 at 4:00 p.m. Tentative Week of January 28, 2013 Monday, February 18, 2013 City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services EXHIBIT 2 25A-35 NOTICE INVITING PROPOSALS NOTICE IS HEREBY GIVEN that proposals will be received from qualified firms to provide Parking Operations and Management Services. Responses to the Request for Proposals (RFP) will be accepted until Wednesday, December 19, 2012 at 4:00 p.m. If further information is required, contact Gabriela P. Lomeli at (714) 647-5479 or glomeli@santa-ana.org. MAILED, DELIVERED BY HAND or COURIERED proposals will be accepted as follows: City of Santa Ana Community Development Agency (6t' floor) Attention: Gabriela P. Lomeli 20 Civic Center Plaza, M-25 Santa Ana, CA 92701 It is the responsibility of the proposer to see that any proposals submitted shall have sufficient time to be received by the City of Santa Ana prior to the proposal due date and time. Questions regarding this Request for Proposals shall be made in writing via e-mail to Gabriela P. Lomeli at glomeli@santa-ana.org. The receiving time at the Front Desk of the City of Santa Ana Community Development Agency, 20 Civic Center Plaza, Santa Ana, CA 92701 will be the governing time for acceptability of proposals. Late proposals will NOT be considered and will be returned to proposer unopened. Telegraphic, electronic and facsimile proposals will not be accepted. ONLY SEALED RFP RESPONSES ARE ACCEPTABLE. DO NOT E-MAIL RFP RESPONSES DO NOT FAX RFP RESPONSES City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 1 25A-36 w CITY OF SANTA ANA COMMUNITY DEVELOPMENT AGENCY REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGEMENT SERVICES (RFP) 1. INTRODUCTION II. PERIOD OF CONTRACT III. OPTION OF RENEWAL IV. FISCAL NONFUNDING CLAUSE V. SCOPE OF WORK/SERVICES VI. GENERAL INFORMATION VII. COORDINATION VIII. CONTRACTOR RESPONSIBILITIES IX. INITIATION/KICK OFF MEETING X. CITY BUSINESS LICENSE XI. RULES FOR PROPOSALS XII. PRE-PROPOSAL MEETINGS X111. E-MAIL COMMUNICATIONS AND INTERPREPATIONS/CLARIFICATIONS XIV. ADDENDA XV.SUBMITTAL REQUIREMENTS INFORMATION AND DEADLINE XVI. MINIMUM QUALIFICATIONS XVII. SUBMITTAL REQUIREMENTS XVIII. CONTRACTOR SELECTION - PROPOSAL AND EVALUATION XIX. PUBLIC RECORDS EXHIBIT A - SCOPE OF SERVICES 1. INTRODUCTION A. LOCATION OF FACILITIES B. CURRENT OPERATING SCHEDULES C. HOURS OF OPERATIONS D. CURRENT EQUIPMENT E. PROPOSED STAFFING LEVELS PAGE 5 5 5 5 5 6 6 6 6 7 7 7 7 7 7 7 8 10 11 12 12 12 13 13 14 14 II. CONTRACTOR REQUIREMENTS AND RESPONSIBILITIES 14 A. PARKING OPERATIONS AND MAINTENANCE SPECIFICATION 14 City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 2 25A-37 B. CONTRACTOR PERSONNEL 15 C. CUSTOMER SERVICE 16 D. MAINTENANCE 16 E. PARKING ANALYSIS 17 F. REQUIRED CONTRACTOR IDENTIFICATION SIGNAGE 17 G. INSPECTIONS 17 H. SPECIFICATIONS 17 1. LOGS / NOTIFICATIONS / REQUIRED REPORTING 17 J. SUPERVISION OF CONTRACT AND MEETING WITH THE CITY 18 K. MATERIALS AND EQUIPMENT 18 L. ADDITIONAL SERVICES 18 III. DEFINITIONS 18 IV. TE RMS AND CONDITIONS 18 A. TERM 18 B. CONTINUED FUNDING 18 C. COMPENSATION 19 D. INDEPENDENT CONTRACTOR 19 E. INSURANCE 19 F. HOLD HARMLESS / INDEMNIFICATION 20 G. NOTICE 21 H. TERMINATION 21 1. CONTRACTOR OPTION FOR TERMINATION 22 J. LIQUIDATED DAMAGES 22 K. EMPLOYMENT OPPORTUNITIES FOR SANTA ANA RESIDENTS 22 L. CONTRACTOR COMMUNITY EVENT PARTICIPATION AND PUBLIC 22 AWARENESS M. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS 22 N. ASSIGNMENT 23 0. JURISDICTION - VENUE 23 P. FINES 23 EXHIBIT A - 1 FACILITY LOCATIONS 24 EXHIBIT A - 2 EXISTING EQUIPMENT 25 EXHIBIT A - 3 DRAFT PARKING MANAGEMENT AGREEMENT 28 EXHIBIT A - 4 PARKING FACILITIES MAINTENANCE SCHEDULE 29 EXHIBIT B PROPOSERS STATEMENT AND FEE SCHEDULE 32 EXHIBIT C ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL 33 GENERAL LIABILITY POLICY City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 3 25A-38 EXHIBIT D REFERENCES AND RELEVANT WORK HISTORY 34 EXHIBIT E PROPOSAL CONTRACT AND AGREEMENT - PROPOSERS 35 STATEMENT EXHIBIT F PROPOSAL CONTRACT AND AGREEMENT - CERTIFICATION OF 36 NONDISCRIMINATION BY CONTRACTOR EXHIBIT G NON-COLLUSION AFFIDAVIT 38 City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 4 25A-39 W CITY OF SANTA ANA COMMUNITY DEVELOPMENT AGENCY REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGMENT SERVICES (RFP) INTRODUCTION The City of Santa Ana is issuing this Request for Proposals (RFP) for Parking Operations and Management Services for the operations, management and maintenance of four public parking structures and one public surface lot that serve retail, restaurants, office and mixed use developments in the Downtown area. II. PERIOD OF CONTRACT Unless earlier terminated as allowed for in the Agreement, agreement term shall be for a period of two years. The agreement term is anticipated to commence after City Council award of this agreement and upon receipt and approval of all required insurance documents. The projected agreement commencement date is March 1, 2013 and may be adjusted as necessary. III. OPTION OF RENEWAL The term of this Agreement shall have provisions for three (3), one-year renewal options at the discretion of the City and City Council approval unless the City notifies the Contractor in writing at least thirty (30) days before the end of the initial term or any extended term, of its intent to terminate the Agreement at the conclusion of the initial term or any extension. Time is of the essence in the performance of services under this agreement IV. FISCAL NONFUNDING CLAUSE In the event sufficient budgeted funds are not available for a new fiscal period, the City shall notify the provider of such occurrence in writing at least thirty (30) days before the end of the current fiscal period and contract shall terminate on the last day of current fiscal period without penalty or expense to the City. V. SCOPE OF WORK/SERVICES The scope of work may include any and all work efforts related to the Parking Operations and Management Services per EXHIBIT A - SCOPE OF SERVICES. The Contractor shall be an independent contractor capable of providing experienced, knowledgeable and professional staff. The Contractor shall be responsive and maintain excellent working relationships with city residents, businesses, government officials and City staff. The Contractor shall provide adequate staffing levels at all times and adhere to established schedules. The Contractor shall be knowledgeable of and comply with federal, state and local regulations, including but not limited to the California Vehicle Code and the Santa Ana Municipal Code. City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 5 25A-40 VI. GENERAL INFORMATION A. The term of the contract will begin after the contract is awarded by the City Council. B. When determined appropriate, the City will provide information in its possession relevant to preparation of required information in RFP. The City will provide only the staff assistance and documentation specifically referred to herein. C. The Contractor shall be responsible for retaining data, records and documentation for the preparation of the required information. These materials shall be made available to the City as requested by the City. D. This RFP does not commit the City to pay costs incurred in preparation of a response to this RFP. All costs incurred in the preparation of the proposal, the submission of additional information and/or any aspect of a proposal prior to award of a written contract will be borne by the respondent. The City reserves the right to accept or reject the combined or separate components of this proposal in part or in its entirety or to waive any informality or technical defect in proposal. E. All data, documents and other products used, developed or produced during response preparation of the RFP will become property of the City. All responses to the RFP shall become property of the City. Proposer information identified as proprietary information shall be maintained confidential, to the extent allowed under the California Public Records Act. F. The City reserves the right to reject, replace and approve any and all subcontractors. All subcontractor(s) shall be identified in the response to the RFP and the City reserves the right to reject any subcontractor(s). Subcontractors shall be the responsibility of the prime Contractor and the City shall assume no liability of such subcontractors. VII. COORDINATION Coordination by the awarded Contractor with the City, other contractors and agencies will be required to achieve satisfactory and timely delivery of the required services. Coordination may include, but not be limited to, coordination with impacted businesses, neighborhood and civic groups, local and/or state agency boards, and attendance at City Commission and Council meetings. The City will decide the manner in which the coordination efforts will be conducted. At the City's option, coordination efforts may be performed by the Contractor's direct contact, by the Contractor acting through the City or by the City only. When coordination efforts require agreements, such agreements shall be coordinated through the City. VIII. CONTRACTOR RESPONSIBILITIES The selected Contractor will assume responsibilities for all services in its proposal. The selected Contractor shall identify a sole point of contact with the greatest knowledge in regard to parking operations and management service operations and contractual matters, including payment of any and all charges resulting from the Agreement. IX. INITIATION/KICK OFF MEETING The selected proposer will be required to meet with City staff prior to commencement of services or at any time as required by the City, to discuss and agree on operational issues, including transition of services and scheduling. City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 6 25A-41 X. CITY BUSINESS LICENSE The selected proposer shall be required to obtain a City of Santa Ana Business license within 30- days of selection and must provide a copy to the City project manager or designee prior to commencing any work in Santa Ana. XI. RULES FOR PROPOSALS The signer of the RFP must declare in writing that the only person, persons, company or parties interested in the proposal as principals are named therein; that the proposal is made without collusion with any other person, persons, company or parties submitting a proposal; that it is in all respects fair and in good faith without collusion or fraud; and, that the signer of the proposal has full authority to bind the proposer (Exhibit H). XII. PRE-PROPOSAL MEETING A mandatory pre-proposal meeting is scheduled for Thursday, November 29. 2012 at 09:30 a.m. at parking structure B located at 300 E. Fifth St. (meet at the southeast corner of 5t St. and Spurgeon St.). The meeting will include a walk-through of the facility. All questions shall be required to be submitted in written form to the Project Manager via email no later than 5:00 p.m. on Thursday, December 6, 2012. Responses to questions received by the deadline referenced above will be posted to the City's Bids and RFPs page at http://www.santa-ana.orq/finance/currentbidsandresults.asp by Thursday, December 13, 2012. XIII. E-MAIL COMMUNICATIONS AND INTERPRETATIONS/CLARIFICATIONS To facilitate the RFP process, proposers are required to monitor and respond to e-mail requests within 48 hours. No oral interpretations will be made by the City to any proposer as to the meaning of requirements identified herein, including the Scope of Service and Terms and Conditions. Every request for such an interpretation must be made in writing via e-mail to the Project Manager no later than 5:00 p.m. on Thursday, December 6, 2012. Significant interpretations or clarification will be made by an addendum to this RFP, which will be posted to the website. Addenda may become part of the agreement documents. XIV. ADDENDA If clarification or interpretation of this RFP is considered necessary by the City, a written addendum shall be issued and the information will be posted on the City's website at http://www.santa- ana.org/finance/currentbidsandresults.asp. It is the responsibility of each proposer to periodically check the City's website to ensure that they have received and reviewed any and all addenda to this RFP. XV. SUBMITTAL INFORMATION AND DEADLINE Proposals are due to the City of Santa Ana, at the date, time and location set forth on the Notice Inviting Proposals. Faxed and E-mail proposals will not be accepted. XVI. MINIMUM QUALIFICATIONS The following are the minimum qualifications to be considered as an eligible candidate to City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 7 25A-42 submit a proposal for the requested services described in this RFP. A. Proposers shall have at minimum of five (5) years recent experience operating a single public pay parking lot or structure with a minimum of 400 parking spaces generating annual gross parking revenue in excess of $350,000; and at least two (2) years experience in the last five (5) years operating public pay parking lot(s) and/or structure(s) which generate annual gross revenue in excess of $1,000,000. B. Proposers shall have at least three (3) years continuous experience during the past five (5) years in the operation and management of a public pay, multi-level parking structure which was open at least 10 hours per day, five days or more per week. C. Proposers key personnel must have a minimum often (10) years of experience as described in the Attachment A - Scope of Work D. Proposer must have an office location(s) within Orange County, CA. XVII. SUBMITTAL REQUIREMENTS The RFP is intended to assess and evaluate each firm's capabilities as they apply to the proposed project. Each firm must address each of the following items in its response to the RFP. A. Statement of Qualifications - In order to maintain uniformity, the Statement of Qualifications must be limited to a MAXIMUM of 25 PAGES (excluding front and back covers). The page limitation includes all appendixes, attachments and supplemental information. The following information is required: 1. Cover Letter: A letter signed by a principal or authorized representative who can make legally binding commitments for the entity. 2. Firm and Personnel Experience: A profile of the firm's experience, personnel and history relating to the scope of work identified in Exhibit A. Include project description, year performed/completed and client name with contact information including their telephone number. The Project Manager/Principal Agent's contact information (e.g. Operation/Field Supervisor) for the proposed work shall be identified and associates in-charge when Project Manger/Principal Agent is absent as well as that of other key personnel. An organization chart identifying only those who will perform work for the proposed project and their brief resume (if applicable). The Project Manager/Principal Agent shall be the primary contact person to represent your firm and will be the person to conduct the presentation, if invited for an interview. 3. Plans: Submit a narrative description for the following. a. Management Plan: i. The proposed management of the facilities including but not limited to staffing, accounting and logistics. ii. Projected pro forma. iii. Detailed revenue control procedures. b. Operations Plan: i. Describe in detail the proposed operations plan of facilities including but not limited to general operations, maintenance, security and staffing. c. Transition and Implementation Plan: i. Describe the steps to be taken to transition into the facilities and begin operations. Include a time implementation schedule for the transition plan. City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 8 25A-43 d. Facilities Improvement Plan: i. Identify and describe improvements to be made, if any, at the parking facilities (paint, signage, minor repairs, etc.) ii. A timeline for the proposed improvements. e.General Improvements/Recommendation Plan i. Describe any improvements your company would propose to improve the facilities overall, both physical and operational. 4. Labor Relations: Provide a response to the following questions: a. Characterize your company's labor relations program and union representation. i. Are the employees who will be staffing City facilities currently represented by a recognized labor union or governed by a collective bargaining agreement? ii. Which union or association is recognized? iii. If there is a collective bargaining agreement, when is it scheduled to expire? b. In the past 3 years, has the company been involved in any labor representation or collective bargaining disputes with one or more labor organizations? i. If so, further explain. ii. Would any of those have an impact on the company's ability to carry out the City's work if awarded the contract? c.ln the past 3 years, has the company been involved in any labor representation or collective bargaining disputes with one or more labor organizations? 5. Human Resources: Provide a response to the following questions: a.Describe your employee recruitment program (methods & process). b.Describe your pre-employment personality testing used in recruiting, if any. c. What has been the employee turnover experience for your personnel? d.What are the three major reasons for turnover? e. How many contract personnel, full time and part time, do you employ? f. Employment Policies: i. What are your pre-hire screening and testing procedures? ii. Do you provide random drug test before and after hiring? iii. What are your hiring and termination policies? iv. What role do you see the City playing in the hiring and termination procedures? 6. Training Policies: Describe what company training programs you provide, the frequency of when trainings are offered, the number of training hours provided to each employee, etc. 7. Staffing Policies: Provide responses to the following questions: a.Will you recruit personnel for this contract differently from other standard parking contracts? If so, how and why? What specific recruitment methods will be used? b.With other parking companies advertising for employment opportunities, what will you do to meet the city's needs? c. List the wage rates and billing rates by type of position for each of the type of services to be provided. Response must include the following: i. Suggested beginning hourly wage for each position. ii. A detailed description of all fringe benefits offered to employees. iii. A detailed description of any employee incentive programs offered by the company that rewards/encourages employee safety, productivity, excellent customer service. 8. Financial Responsibility (Capacity): City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 9 25A-44 a.Proposer shall submit its most recent audited financial statement, evidencing Proposer's financial capacity to fully perform the required services, including provision of equipment and personnel expenses over a 90-day period. If said financial statement does not reflect full 90 day operational capacity, Proposer may include a letter of credit as evidence of supplemental capacity 9. Submittal of Proposal: a. Seven (7) copies of the response to the RFP shall be signed by a company official with the power to bind the company. b. One (1) copy of the submittal on a Compact Disc, USB Flash Drive or Equivalent. c. Structure your proposal to include the Scope of Services response, General Time implementation Schedule, Fees/Contract Price and Exhibits. B. EXHIBIT 13- PROPOSERS STATEMENT AND PROPOSAL ITEM PRICING C. EXHIBIT C - ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY (NOT REQUIRED UNTIL AFTER CONTRACTOR SELECTION) D. EXHIBIT D - REFERENCES AND RELEVANT WORK HISTORY (PAST 20 YEARS) E. EXHIBIT E - PROPOSAL CONTRACT AND AGREEMENT - PROPOSERS STATEMENT F. EXHIBIT F - PROPOSAL CONTRACT AND AGREEMENT - CERTIFICATION OF NONDISCRIMINATION BY CONTRACTOR G. EXHIBIT G - NON-COLLUSION AFFIDAVIT H. The proposal must be completely responsive to the RFP. 1. The City reserves the right to reject any or all proposals submitted and no representation is made hereby that any contract will be awarded pursuant to this RFP or otherwise. XVIII. CONTRACTOR SELECTION - PROPOSAL AND EVALUATION The criteria for evaluating the proposals submitted will take the following items into consideration: A. Qualifications and Company Experience ............................................................ 30% B. Proposed Plans (Management, Operations, Facilities Improvements, Transitional and Implementation and General Improvements/Recommendation ......................... 30% C. Fee Proposal ............................................................................................... 30% D. Quality and Depth of Proposal .......................................................................... 10% The proposals will be reviewed by a committee of City staff members. The committee will evaluate Proposers based on their response to the RFP. A final score will be calculated for each submitted proposal and used to rank the proposers. The most responsive proposers will be informed after proposal packet evaluation. The committee will interview the top tier of proposers and recommend award of the contract to the proposer who will provide the best quality service at minimum cost to the City. The City reserves the right to negotiate pricing and for additional interviews. The City will notify the successful firms by email of invitation for final oral interview and/or award. City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 10 25A-45 XIX. PUBLIC RECORDS Proposals will become public record after award of agreement. Interested offerors may submit a written request, with a self-addressed stamped envelope to receive results of the evaluation. Proposer information identified as proprietary information shall be maintained confidential, to the extent allowed under the California Public Records Act. Submit your request to, City of Santa Ana Community Development Agency, Attn: Gabriela P. Lomeli, 20 Civic Center Plaza M-25, Santa Ana, CA 92701. City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 11 25A-46 CITY OF SANTA ANA COMMUNITY DEVELOPMENT AGENCY REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGEMENT SERVICES EXHIBIT A - SCOPE OF SERVICES 1. INTRODUCTION The City of Santa Ana is issuing this Request for Proposals (RFP) for Parking Operations and Management Services to operate and manage four downtown public parking structures and a public surface lot located within the Downtown area (Exhibit A-1). The duties and responsibilities of selected contractor will be to oversee daily operation and management of the facilities, including, but not limited to: invoicing and collection of monthly fees, issuing validation stamps, collecting parking fees, activation of monthly access cards, preparation of monthly utilization reports and maintenance. In addition, the selected contractor will be required to operate and maintain all current equipment listed in Exhibit A-2 and any new equipment installed during the term of the Agreement. Currently, the City plans to upgrade access controls and install roll down security gates at all vehicle entrances. As part of the Agreement, the contractor will assist the City with the management of construction activity associated with the equipment and security gate installation, and the orderly operation of the parking structures continuously during the construction activity. A. LOCATION OF FACILITIES: Parking Structure A: Northeast corner of Broadway and Third Street (440 spaces*) 201 West Third Street Parking Structure B: South side of Fifth Street between Bush and French Street (700 spaces*) 300 East Fifth Street Parking Structure C: Northwest corner of Birch Street and Third Street (400 spaces*) 310 North Birch Street Parking Structure D: Southwest corner of Fifth Street and Main Street (400 spaces*) 420 North Main Street Surface Lot 1: Northeast corner of Bush Street and Third Street (62 spaces) 201 East Third Street *Approximate number, available space varies based on tenant utilization. Each location currently accommodates both monthly and transient patrons with the exception of the surface lot which at this time only services transient patrons. In addition, these facilities provide parking for numerous events held in the Downtown. The surface lot may also be used to stage City approved events. The City, through the Public Works Division, has plans to replace the existing access controls and install security gates at all vehicle entrance points at the four parking structures. This project is tentatively scheduled to go out to bid by the Public Works Division in late 2012 with a contract awarded in early 2013. The Parking Operations Manager will assist the City with the management of construction activity associated with the equipment installation, and the orderly operation of the parking structures continuously during the construction activity. The City can request to have additional locations not listed above be managed under this Operations and Management Agreement, subject to additional fee. City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 12 25A-47 B. CURRENT OPERATING SCHEDULES (Subject to Change) Parking Structure A: Operated seven days a week. Parking Structure B: Operated Monday through Friday, Saturday after 6pm and Sunday if events are scheduled. Parking Structure C: Operated Monday through Saturday. Parking Structure D: Operated Monday through Saturday, closed on Sunday. Currently, this is the only facility with roll down gates that allows for complete closure of the structure. Parking Lot 1: Attended Monday through Saturday for revenue collection purposes. There is not an attendant assigned to this location. Current Holidavs Observed: (narkina structure nersnnnel will not wnrk thPCP hnlirinvc) New Years Da Labor Da Martin Luther Kin Da Veterans Da Presidents Da Thanksgiving Da Memorial Da Christmas Da Independence Da C. HOURS OF OPERATION- (Subject to Change) Hours of operation vary among the different parking facilities. Operations, management, and security are of critical importance to the success of the facilities. Below is a summary of the hours of operation: Parking Structure A: Monday - Tuesday 08:00 AM - 08:00 PM Wednesday - Saturday 08:00 AM - 01:00 AM Sunday 10:00 AM - 06:30 PM Parking Structure B: Monday - Tuesday 07:30 AM - 09:00 PM Wednesday - Friday 07:30 PM - 01:00 AM Saturday 06:00 PM - 01:00 AM (Sundays only if there is a special event scheduled) Parking Structure C: Monday -Tuesday 08:00 AM - 06:00 PM Wednesday-Friday 08:00 AM - 01:00 AM Saturday 04:00 PM - 01:00 AM Sunday Closed Parking Structure D: Monday-Friday 06:00 AM - 11:30 PM Saturday 06:00 AM - 12:00 AM Sunday Closed Parking Lot 1: Monday-Saturday 08:00 AM - 08:00 PM City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 13 25A-48 D. CURRENT EQUIPMENT Attached as Exhibit A-2 is a list of all current equipment that contractor will be required to maintain as part of their obligation. E. PROPOSED STAFFING LEVELS 1 Operations Manager 1 Shift Supervisor Below are the current staffing levels for all the parking locations indicated in the RFP. The number of employee hours to be worked shall be scheduled by contractor with the written approval of the Project Manager. Parking Structure A: 3 full time parking attendants 1 part time parking attendant Parking Structure B: 2 full time parking attendants 2 part time parking attendants Parking Structure C: 3 full time parking attendants Parking Structure D: 2 full time parking attendants 2 part time parking attendants Parking Lot 1: Operations Manager or his/her designee to do daily revenue collection. In addition, the selected operator will be responsible for contracting for security guard services. Current security staffing levels for service at the four parking structure locations consists of: 1 post commander 1 lead security guard 12 full time security guards CONTRACTOR REQUIREMENTS AND RESPONSIBILITIES A. PARKING OPERATIONS AND MAINTENANCE SPECIFICATIONS Proposer will be conclusively presumed to have read and to be familiar with the attached Management Agreement (EXHIBIT A-3). It is the intent of the City that the Operator will fully comply with every requirement of said Management Agreement. This Management Agreement is viewed as a major contract with major responsibilities on the part of the Operator. The City wants a proven operator with current experience in handling comparable single client facilities. It is expected that the selected proposer will provide an experienced Operations Manager to oversee these operations. The facilities will be maintained and operated in a courteous, efficient and prompt manner at all times. City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 14 25A-49 Although the City will closely monitor the operator's financial controls and procedures to ensure against mishandling or theft of public funds, it is expected that the operator, as a proven professional parking management firm, will provide optimum in fiscal responsibility. Detailed records must be maintained with direct supervision and certification of a Certified Public Accountant. Likewise, timely deposits and reports are to be prepared and adhered to. The City expects the best professional and responsible service attainable. B. CONTRACTOR PERSONNEL 1. The contractor shall furnish the necessary personnel, including one (1) Operations Manager and one (1) Shift Supervisor. Hours will be determined based on the needs of the City. The City of Santa Ana shall have discretion in approving changes to work hours and assignments or areas. 2. A list identifying the names of all Contractor personnel shall be provided to the City Project Manager or designee. 3. Each of the Contractor's employees performing work pursuant to this Request For Proposals (RFP) shall: a. Have ability to read, write legibly, speak and comprehend the English language - Bilingual fluency in Spanish or other language approved on the City's bilingual list is preferred; b. Capable of performing assigned duties; c. Pass a background check that shall include a review of the employee's criminal history that would pose a liability for the City including crimes of violence. The City of Santa Ana reserves the right to mandate removal of any contractor's employees found unacceptable to the City for any reason; d. Have a High School Diploma or its equivalent; e. Be well groomed at all times; and f. Have a minimum of eight (8) hours of basic customer service training including, but not limited to, conflict resolution, handling difficult customers and cultural diversity 4. The contractor must provide an Operations Manager during daytime working hours to supervise all selected proposer employees on duty. The Operations Manager shall have substantial expertise and experience in parking management and operation services. The Operations Manager shall be the primary contact between the city and selected proposer on matters relating to the operations and management services provided through this RFP. 5. The Operations Manager shall be the primary daily operations contact to the City and shall also do the following: a. Respond to complaints and provide the City's designee with a copy of the complaint and the resolution or, in the event an investigation is required, the steps being taking to resolve the complaint and the date a resolution can be expected. b. Contact the City designee at least once each day to discuss and clarify operational assignments and receive any special instructions; c. Ensure that contractor personnel perform the duties required by the RFP; and d. Prepare and submit monthly progress reports and status reports as may be required by the city designee. City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 15 25A-50 6. The contractor shall be required to designate an Assistant Operations Manager. This person shall have the authority over the personnel and shall be a member of the contractor's management staff with authority to represent the contractor on policy matters. 7. All shifts must be supervised. 8. The contractor shall provide and pay for all uniforms for contract personnel assigned to work in the field. a. Uniform specifications shall include a photograph or diagram and written description of the uniforms for male and female personnel and include marking(s), shirt sleeves length (short or long), shoe type, the color of shirts, pants, jacket(s) and any other relative information. As an option, the contractor may allow the employee to wear shorts of the same color as the uniform pants during the summer months. b. The Community Development Agency Director or his/her designee shall review and approve all uniforms and insignias. c. Uniforms shall be properly fit with no rips or tears and must be clean and pressed at all times to present a neat appearance. 9. If the Contractor finds it necessary to utilize substitute personnel, they are to be equal in qualifications and training to regular personnel. C. CUSTOMER SERVICE Contractor shall provide service, which is accessible, courteous, responsive, timely, equitable and given in the spirit of professionalism and mutual respect. All Contractor personnel are a reflection of the City of Santa Ana and as such are expected to: Interact with customers and City officials, whether in person or on the phone, in a pleasant, respectful and professional manner. 2. Give full attention to each customer's needs by asking questions. Provide information, products and service in an accurate, organized and complete manner. Determine that the customer's request has been fulfilled. 3. Comply with all federal, state, county, and city laws and regulations. 4. Use adequate equipment that is kept clean and neat at all times. 5. Maintain working spaces, clean and free of clutter or distractions. 6. Train other Contractor employees to be polite and courteous during public contact. 7. Employ truth and accuracy in reporting customer service records. D. MAINTENANCE It is expected that the selected proposer will agree to keep the parking facilities clean and in a proper state of maintenance as referenced in Exhibit A-4 and repair other than major structural repairs, and at the termination of the Agreement, to leave the parking facilities in substantially the same condition as existed at the commencement of the Agreement, normal wear and tear expected. Selected proposer shall be responsible for repair and maintenance of any and all parking equipment City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 16 25A-51 at the City's expense, subject to City's written approval except in case of emergencies in which case notification shall be oral. E. PARKING ANALYSIS The City may request selected contractor for data gathered from the parking facilities for the purpose of conducting a parking analysis and/or request to subcontract for a complete parking operations study to evaluate and make recommendations for potential operational improvements and identify a monitoring system for evaluating success of a new operational program. F. REQUIRED CONTRACTOR IDENTIFICATION SIGNAGE City of Santa Ana authorized contractors will be required to have identification signage on all vehicles at all times while working in an official capacity for the City. Such signage shall be of a professional manner and maintained neat in appearance, free of graffiti, easily identifiable and in sound condition. All costs associated with the fabrication of such signage shall be borne by the Contractor. Such signage design shall be pre-approved by the City prior to production. Signage type and material shall be plastic with magnetic backing, painted signage on vehicle or similar. Taped vehicle signage will not be allowed. G. INSPECTIONS A representative from the City shall regularly inspect the operations and management and other areas subject to this Agreement to ensure that the work is being, and has been, performed in accordance with the terms identified in this agreement. All work found in such inspections not conforming to the applicable requirements shall be corrected by the Contractor and the City shall have the right to withhold payment to the Contractor until the work is corrected. H. SPECIFICATIONS This scope of services is intended to cover all labor, material and standards of workmanship to be employed for in this work plan or reasonably implied by terms of same. Work or materials of a minor nature which may not be specifically mentioned, but which may be reasonably assumed as necessary for the completion of this work, shall be performed by the Contractor as if described in the specifications. 1. LOGS / NOTIFICATIONS / REQUIRED REPORTING 1. The Contractor shall log all equipment service and repairs. 2. The Contractor shall log on a daily basis and handle all complaints from the public regarding parking facilities in a courteous and professional manner as well as any corrective action taken as a result. 3. The Contractor shall note any hazardous conditions or damage to public parking facilities and shall report these conditions immediately to the Project Manager; first by telephone and followed by a monthly report. 4. The Contractor will track and provide periodic reports on parking utilization levels for all parking facilities included in this RFP. City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 17 25A-52 5. The Contractor shall permit the City to inspect and audit its books and records regarding City- provided services at any reasonable time. J. SUPERVISION OF CONTRACT AND MEETINGS WITH CITY All work shall meet with the approval of the Santa Ana Community Development Agency. As determined necessary by the City, there shall be a minimum of one monthly meeting with the Contractor and the City representative to determine progress and to establish areas needing attention. Status reports of activities performed by the Contractor will be submitted in writing to the City on a weekly basis or as determined necessary by the City. K. MATERIALS AND EQUIPMENT The contractor shall make a reasonable effort to purchase equipment and materials in the City of Santa Ana and to utilize Santa Ana vendors. Such efforts shall be provided to the City. The City shall have the ability to provide a list of possible Santa Ana vendors to the Contractor. The City has the option to purchase and provide materials. The City has the option to purchase special material or the City will reimburse the Contractor for purchase of special material only after authorization by the City. L. ADDITIONAL SERVICES Selected contractor may be requested to provide or subcontract other services related to the parking facilities which may include, but not limited to, implementing a park wayfinding program, parking enforcement within the parking facilities and a valet program. Also, may be requested to assist city staff in preparing and updating a webpage to inform the public of parking locations, rates, operating hours and special event parking. III. DEFINITIONS None. IV. TERMS AND CONDITIONS A. TERM The term of this Contract is projected to commence on or about March 1, 2013 after City Council award of this contract and upon receipt and approval of all required bonds and insurance documents and terminate February 28, 2015, unless earlier terminated as set forth in Section H, below. City may grant an option to renew up to three additional one-year periods. Said options shall be exercised in writing at least thirty (30) days prior to the end of the initial term or any extension thereof. B. CONTINUED FUNDING In the event funding is not allocated for Parking Operations and Management services during the annual budget approval process, the City shall notify the provider of such occurrence in writing at least thirty (30) days before the end of the current fiscal period, and contract shall terminate on the last day of current fiscal period without penalty or expense to the City City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 18 25A-53 C. COMPENSATION City agrees to pay and Contractor agrees to accept a flat monthly fee for the scope of service outlined in this RFP and will be reimbursed for certain costs including routine parking structure expenses, emergency repair costs, minor improvements and additional work hours as requested and approved in advance by the City. 2. As part of the proposal, include: a. A flat monthly fee for each of the five parking facilities. Evaluation will be based on cumulative monthly fee of all five facilities. b. Include a schedule indicating the components of the proposed fee for each structure (ie. accounting, overhead, profit, etc.) c. Hourly fee for additional cashiers, parking attendants or other staff when required/requested by the City. The parties may annually agree to an adjustment of parking operations and management services charges (not to exceed 2%) commencing at the end of the first year of the agreement, utilizing the month of December statistics and supporting documentation. The two indices which will be used for determining adjustments to parking operations and management services charges shall be the most recent December Consumer Price Index (CPI) for All Urban Consumers for Los Angeles-Anaheim-Riverside CMSA, published by the United States Department of Labor Bureau of Labor Statistics or any relevant successor for the Orange County area. 3. Extra Work a. No new work of any kind shall be considered unless a separate estimate is given for said work and the estimate is approved by the City in writing before the work is commenced. The Contractor will be required to provide detailed information of such extra work. Documentation of contract compliance may be required on some occasions. D. INDEPENDENT CONTRACTOR Contractor shall during the entire term of this Contract, be construed to be an independent contractor and not an employee of the City. This Contract 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 manner in which Contractor performs the services required by this Contract. However, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. E. INSURANCE Prior to undertaking performance of work under this Contract, Contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: 1. Commercial General Liability Insurance. Contractor shall maintain commercial general liability City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 19 25A-54 insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting there from and damage to property, resulting from any act or occurrence arising out of Contractor's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting there from, and property damage, in the total amount of $2,000,000 per occurrence, $2,000,000 in the aggregate. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $2,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. 3. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Contractor 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 Contract, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. 1. The following requirements apply to the insurance to be provided by Contractor pursuant to this section: a. Commercial general liability and business automobile insurance policies shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. A sample additional insured endorsement is attached hereto as Exhibit C. Contractor shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. b. Certificates of insurance shall be furnished to the City upon execution of this Contract and shall be approved in form by the City Attorney. 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. 2. If Contractor fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Contract. Such termination shall not affect Contractor's right to be paid for its time and materials expended prior to notification of termination. Contractor waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. F. HOLD HARMLESS/ INDEMNIFICATION To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its officers, agents and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any work performed or services provided under this City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 20 25A-55 Contract (including, without limitation, defects in workmanship and/or materials) or Contractor's presence or activities conducted performing the work (including the negligent and/or willful acts, errors and/or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable for any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Contractor to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Contract. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Contractor. G. NOTICE Any notice, tender, demand, delivery or other communication pursuant to this Contract shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication to the following persons: To City: Clerk of the Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax 714-647-6956 With courtesy copy to: Gabriela P. Lomeli City of Santa Ana Community Development Agency 20 Civic Center Plaza (M25) Santa Ana, CA 92701 Fax 714-647-5455 H. TERMINATION The City reserves the right to terminate the contract, without penalty, for cause immediately or without cause. 1 • In the event Contractor fails or refuses to timely perform any of the provisions of this Agreement in the manner required, or if Contractor violates any provision of this Agreement, Contractor shall be deemed in default. City shall provide written notice of such default to Contractor's Project Manager. Contractor shall cure said default within a period of two (2) working days. If such cure is not completed in a timely manner, City may assess liquidated damages or terminate the Agreement forthwith by giving written notice to Contractor's Project Manager. City may, in addition to the other remedies provided in this Agreement or authorized by law, terminate this Agreement by giving written notice of termination. Contractor shall be responsible for all costs incurred by City, including replacement costs of equipment and labor required to provide service during Contractor's default. City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 21 25A-56 2. This agreement may be terminated without cause by City upon thirty (30) days written notice delivered to the Contractor either personally or by mail. Upon termination, City shall pay to Contractor that portion of compensation specified in the Agreement that is earned and unpaid prior to the effective date of termination. 3. In addition to, or in lieu of, remedies provided in this Agreement or pursuant to law, City shall have the right to withhold all or a portion of Contractor's compensation for contract services if, in the judgment of the Projects Manager or designee, the level of service falls below appropriate Parking Operations and Management standards and/or Contractor fails to satisfactorily perform contract services. City shall have the right to retain funds withheld until the Project Manager or designee determines that contract services are performed as well and as frequently as required by this Agreement. 1. CONTRACTOR OPTION FOR TERMINATION The Contractor may request termination of the contract when conditions during the contract make it impossible to perform or when prevented from proceeding with the contract by act of God, by law or official action of a public authority or in the event on nonpayment by the City. Such request will require one-hundred and eighty (180) days written notice prior to contract termination date requested. In the event of nonpayment of undisputed sums by the City, Contractor shall give the City thirty (30) working days to cure the alleged breach. J. LIQUIDATED DAMAGES If the City determines that the Contractor breaches its promise to provide parking operations and management services in compliance with the Terms and Conditions of applicable laws and regulations, and the specifications set forth above, it would be impracticable and extremely difficult to determine the damage to City arising from such breach. Therefore, in the event of Contractor's breach, Contractor shall pay to City the sum of $125 per hour per occurrence for such breach per parking personnel, in addition to any cost, fines, etc. levied against the City. K. EMPLOYMENT OPPORTUNITIES FOR SANTA ANA RESIDENTS Contractor shall solicit and advertise employment opportunities to Santa Ana residents. The City shall inform the Contractor of areas to publicize recruitment opportunities, such as work centers and community centers. Such effort and procedure will be provided to the City for review. L. CONTRACTOR COMMUNITY EVENT PARTICIPATION AND PUBLIC AWARENESS If requested by City, Contractor shall participate in extensive public awareness efforts and community events and programs, such as neighborhood and City events. Such participation shall be upon City request provided with reasonable notice of event timing. Such events will not exceed four (4) per year. M. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS 1. Contractor shall perform all requirements under this contract in strict observance of and in compliance with all applicable environmental, traffic, safety and any other laws, regulations, ordinances, codes and any other legislative or statutory requirements. City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 22 25A-57 2. Contractor warrants that the performance of services under this contract shall be compliant with the current requirements of the Occupational Safety and Health Act (OSHA) and as it may be amended or updated throughout the term of this contract. N. ASSIGNMENT Inasmuch as this Contract is intended to secure the specialized services of Contractor, Contractor may not assign, transfer, delegate or subcontract any interest herein without the prior written consent of City and any such assignment, transfer; delegation or subcontract without the City's prior written consent shall be considered null and void. 0. JURISDICTION -VENUE This Contract has been executed and delivered in the State of California and the validity, interpretation, performance and enforcement of any of the clauses of this Contract 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 Contract. P. FINES The Contractor shall be liable for all violation fines levied against the City by State or Federal Agencies and the Courts such as, but not limited to, oil or fluid leaks. City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 23 25A-58 EXHIBIT A-1 CITY OF SANTA ANA COMMUNITY DEVELOPMENT AGENCY REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGEMENT SERVICES THIS DOCUMENT IS FOR INFORMATIONAL PURPOSES ONLY TO ILLUSTRATE EXISTING CITY OF SANTA ANA PARKING STRUCTURE AND SURFACE LOT LOCATIONS F No r L N N I G CITY of SANTA PARKING STRUCTURES a ?'3 `I AND SURFACE LOT x w 'A A SANT APIA 61,VD O H T to ? 3 h 1 91. n xz 7 4TH ST 4TH ST 0 ? .............. . 10 Wn 3RD ST A Third & Broadway ai 3 Levels - 440 Spaces q ~ B Fifth & French 4 Levels - 700 Spaces 2ND sT 2N im C Third & Birch 5 Levels - 400 Spaces D Fifth & Main Li 1:1 7 Levels - 400 Spaces 1 Third & Bush 1STST IsTST Surface Lot - 62 Spaces City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 24 25A-59 CITY OF SANTA ANA COMMUNITY DEVELOPMENT REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGEMENT SERVICES EXHIBIT A-2 THIS DOCUMENT IS FOR INFORMATIONAL PURPOSES ONLY TO ILLUSTRATE EXISTING EQUIPMENT AT EACH LOCATION STRUCTURE A Current Equipment 1 180 8 8 1 Parking Equipment 5 3 1 1 5 201 West 3rd Street Elevator Interior Light Fixtures 408 lamps Exterior Lights & Fixture Roof Pole Lights & Fixture Landscape Irrigation System 1 Sump Pump Federal APD Gates Federal APD Ticket Spitters Amano Register Amano Validator Proximity Card readers Service by Amtech T12 30 Watt 48 -IN FLRMP 150 Watt HPS Medium Size 250 Watt HPS Mogul Size Service by Specialty Environments Service by OC Pump Service and Repair by Total Access Company Office Equipment 1 1 4 2 1 3 2 1 1 STRUCTURE B Current Equipment 2 160 32 9 1 Access Card Dell PC & program Access Card Controller box Vertex VX230 UHF 16 Channel two way radios Vertex VX spare battery Vertex VX six bank rapid charger Vertex VX remote speaker microphone Telephone and base Security/ Information desk Cashier Booth 300 East Sth Street Elevators Interior Light & Fixtures Interior Fixtures 64 Lamps Roof Pole Light & Fixture Landscape Irrigation System 2 Sump Pump Service by Fujitech 150 Watt HPS Medium Size Ceiling Mount T12 30 Watt 48 -IN FLRMP Ceiling Mount 250 Watt HPS Mogul Size Pole Light Service by Specialty Environments Service by OC Pump City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 25 25A-60 Parking Equipment 5 3 1 1 5 1 Office Equipment STRUCTURE C Current Equipment 1 66 15 6 1 1 1 Parking Equipment Service by Fujitech 150 Watt HPS Medium Size Pendant Light 70 Watt HPS Mogule Size Wall Mount 250 Watt HIPS Mogul Size Pole Light Service by Specialty Environments Service by OC Pump Service and Repair by Total Access Company EXHIBIT A-2 3 Federal APD Gates 1 Federal APD Ticket Dispenser 1 Amano Register 1 Amano Validator 3 Falcon Key Card Readers 1 Falcon Key Card System Office Equipment 2 Telephone and base 1 Cashier Booth 1 Dell Office PC 1 Brother Fax/Printer/scanner/copy machine 1 Netgear Wireless Router 1 LG Portable Air Conditioner 1 Goldstar Portable Air Conditioner STRUCTURE D 420 North Main Street Current Equipment 2 Elevators Service by Amtech 105 Interior Light & Fixtures 150 Watt HIPS Megul Size Ceiling Mount 40 Interior stair Light & Fixtures T4 13 Watt Wall Mount 4 Roof Pole Light & Fixture 250 Watt HPS Mogul Size Pole Light City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 26 25A-61 Stanley Gates Stanley Ticket Dispenser Amano Register Amano Validator Falcon Key Card Readers Falcon Key Card System 1 Telephone and base 2 Cashier Booth EXHIBIT A-2 Service and Repair by Total Access Company 310 North Birch Street Elevators Interior Light & Fixtures Interior stair Light & Fixtures Roof Pole Light & Fixture Landscape Irrigation System Sump Pump Caterpillar Backup Generator 1 Landscape Irrigation System 1 Sump Pump 1 Exhaust Fan Parking Equipment 3 Federal APD Gates 1 Federal APD Ticket Dispenser 1 Amano Register 1 Amano Validator 2 Falcon Key Card Readers 1 Falcon Key Card System Office Equipment 1 Telephone and base 1 Cashier Booth 1 Fire Alarm System Controller Box SURFACE LOT 1 Parking Equipment LUKE (single space meter) Service by Specialty Environments Service by OC Pump Service and Repair by Total Access Company City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 27 25A-62 CITY OF SANTA ANA COMMUNITY DEVELOPMENT REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGEMENT SERVICES EXHIBIT A-3 DRAFT PARKING MANAGEMENT AGREEMENT City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 28 25A-63 CITY OF SANTA ANA COMMUNITY DEVELOPMENT AGENCY REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGEMENT SERVICES EXHIBIT A-4 PARKING FACILITIES MAINTENANCE Semi- Daily Weekly Monthly Ouarterly Annually Annually City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 29 25A-64 EXHIBIT A-4 1 Semi- Daily Weekly i Monthly i Quarterly j Annually I Annually 4. ........ ......... ......._.......... !ELEVATORS . I { I l i j Check for normal operation • Check indicators and other lights • Check telephone operation • I ! 5. LANDSCAPE _ ............ ...._........_. - }- 1 - Remove trash • 6. PAINTING Check for rust spots on: Parking control equipment • - Handrails ' • - Pipe guards i , • - Attendant booths • - Elevator doors __ - Touch Up Paint • ? Check for appearance: ? I - signs I I ... ..................................... I • I : I - walls _ _ _ J ......................................... .............................................I 1 - curbs • Touch Up Paint • ?? - Repaint 7. PARKING CONTROL EQUIPMENT Check for proper operation • -. ._ ..................................... 8. PLUMBING/DRAINAGE SYSTEM . . ? Check for proper operation: -sanitary facilities • - floor drains • Sump pump • - Fire protection system ? • 9. ROOFING AND WATERPROOFING . t Check for leaks: -roofing • - expansion joints • - windows, doors and walls - floor membrane areas { joint sealant in floors f City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 30 25A-65 10 SAFETY CHECKS ¦ Handrails and guardrails • ¦ Exit lights • . ............................. i ¦ i Emergency lights ! • I I 1 ¦ Tripping hazards • City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 31 25A-66 CITY OF SANTA ANA COMMUNITY DEVELOPMENT AGENCY REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGEMENT SERVICES PROPOSERS STATEMENT and PROPOSAL FEE SCHEDULE EXHIBIT B Certification - I certify that I have read, understand and agree to the terms and conditions of this Request for Proposals. I have examined the Scope of Services (Exhibit A) and am familiar with the scope of work locations. I am familiar with all the existing conditions and limitation that may impact work requests. I understand and agree that I am responsible for reporting any errors, omissions or discrepancies to the City for clarification prior to the submission of my proposal. LINE DESCRIPTION MONTHLY FEE 1 PARKING STRUCTURE A 2 PARKING STRUCTURE B 3 PARKING STRUCTURE C 4 PARKING STRUCTURE D 5 SURFACE LOT 1 Total Monthly Fee (Add Lines 1 and 5): ADDITIONAL: Hourly fee for additional cashiers, parking attendants or other staff when required/requested. LEGAL NAME OF COMPANY PHONE AND FAX NUMBER BUSINESS ADDRESS PRINTED NAME OF AUTORIZED AGENT TITLE SIGNATURE OF AUTHORIZED AGENT FEDERAL ID NUMBER (IF APPLICABLE) DATE E-MAIL ADDRESS CONTRACTOR LICENSE NUMBER (IF APPLICABLE) THIS FORM MUST BE COMPLETED AND INCLUDED WITH THE PROPOSAL. PROPOSALS THAT DO NOT CONTAIN THIS FORM WILL BE CONSIDERED NON-RESPONSIVE City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 32 25A-67 EXHIBIT C ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY AND BUSINESS AUTOMOBILE POLICIES Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: The City of Santa Ana, 20 Civic Center Plaza M-25, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza M-25, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective , this endorsement form as part of Policy # Issued to Name Insured Countersigned by: Authorized Representative City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 33 25A-68 EXHIBIT D CITY OF SANTA ANA COMMUNITY DEVELOPMENT REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGEMENT SERVICES REFERENCES AND RELEVANT WORK HISTORY THIS SHEET MUST BE COMPLETED IN FULL AND RETURNED WITH OFFEROR'S PROPOSAL List and describe fully the contracts performed by your firm which demonstrate your ability to provide the supplies, equipment or services included in the scope of the proposal specifications. Attach additional pages if required for additional references. The City reserves the right to contact each of the references listed for additional information regarding your firm's qualifications. Reference No. 1 Customer Name: Address: Contract Amount: Contract Individual: Phone Number: Facsimile Number: Year: Description of supplies, equipment, or services provided: Reference No. 2 Customer Name: Address: Contract Amount: Contract Individual: Phone Number: Facsimile Number: Year: Description of supplies, equipment, or services provided: Reference No. 3 Customer Name: Address: Contract Amount: Description of supplies, equipment, or services provided: Contract Individual: Phone Number: Facsimile Number: Year: City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 34 25A-69 TO BE INCLUDED IN PROPOSAL EXHIBIT E CITY OF SANTA ANA COMMUNITY DEVELOPMENT REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGEMENT SERVICES PROPOSAL & CONTRACT AGREEMENT PROPOSER'S STATEMENT Proposer understands and agrees that this written RFP (or any part thereof specifically designated and accepted by the City of Santa Ana, hereinafter City) shall constitute the entire agreement between proposer and the City only after it has been accepted by the City Council, endorsed by the Clerk of the Council with her signature and official seal noting here on the action of approval of the Council, signed by the Executive Director or his duly authorized agent, and signed by the City Attorney, denoting her approval of the form of this document, and its execution, and when it or an exact copy of it has been either delivered to proposer or deposited with the United States Postal Service properly addressed to the proposer with the correct postage affixed thereto. Proposer further agrees that upon delivery (as defined above) of the accepted agreement he/she will furnish City all required bonds and certificates of liability insurance within ten (10) days (excluding Saturdays, Sundays and City's legal holidays), or the funds, check, draft, or proposer's bond substituted in lieu thereof accompanying this proposal shall become the property of the City and shall be considered as payment of damages due to the delay and other causes suffered by City because of the failure to enter into an Agreement and/or furnish the necessary bonds and because it is distinctly agreed that the proof of damages actually suffered by City is difficult to ascertain; otherwise said funds, check drafts, or proposer's bond substituted in lieu thereof shall be returned to the undersigned. Proposer understands that a proposal is required for the entire work, that the estimated quantities set forth in the RFP schedule are solely for the purpose of comparing proposals, and that final compensation under the contract will be based upon the actual quantities of work satisfactorily completed. All terms contained in the Specifications, the Certification of Non-Discrimination by Contractors, and the Workers' Compensation Insurance Certificate are to be incorporated by reference into this Agreement and are made specifically as part of this RFP. FIRM SIGNED AND PRINTED NAME TITLE DATE City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 35 25A-70 TO BE INCLUDED IN PROPOSAL EXHIBIT F CITY OF SANTA ANA COMMUNITY DEVELOPMENT REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGEMENT SERVICES PROPOSAL AND CONTRACT AGREEMENT CERTIFICATION OF NONDISCRIMINATION BY CONTRACTOR The undersigned Contractor or corporate officer, during the performance of this contract, certifies as follows: The Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Contractor shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without, regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. 2. The Contractor shall, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. 3. The Contractor shall send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 4. The Contractor shall comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. 5. The Contractor shall furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his/her books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation, to ascertain compliance with such rules, regulations, and orders. 6. In the event of the Contractor's non-compliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, the contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction/services contracts in accordance with procedures authorized in Execution Order 11246 of September 24, 1965,and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulations, or order of the Secretary of Labor, or as otherwise provided by law. 7. The Contractor shall include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontract or purchase order as the administering agency may direct as means of enforcing such provisions, including sanctions for City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 36 25A-71 TO BE INCLUDED IN PROPOSAL EXHIBIT F noncompliance; provided, however, that in the event the Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the 8. Contractor may request that the United States enter into such litigation to protect the interests of the United States. 9. Pursuant to California Labor Code Section 1735, as added by Chapter 643 Stats. 1039, and as amended, No discrimination shall be made in the employment of persons because of race, religious creed, color national origin, ancestry, physical handicaps, mental condition, marital status, or sex of such persons, except as provided in Section 1420, and any Contractor violating this Section is subject to all the penalties imposed for a violation of the Chapter. FIRM SIGNED AND PRINTED NAME TITLE DATE City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 37 25A-72 TO BE INCLUDED IN PROPOSAL EXHIBIT G CITY OF SANTA ANA COMMUNITY DEVELOPMENT REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGEMENT SERVICES NON-COLLUSION AFFIDAVIT CITY OF SANTA ANA PROPOSAL AND CONTRACT AGREEMENT NON-COLLUSION AFFIDAVIT (Title 23 United States Code Section 112 and Public Contract Code Section 7106) To the CITY OF SANTA ANA COMMUNITY DEVELOPMENT AGENCY In accordance with Title 23 United States Code Section 112 and Public Contract Code 7106 the PROPOSER declares that the bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that the PROPOSER has not directly or indirectly induced or solicited any other PROPOSER to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived or agreed with any PROPOSER or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the PROPOSER has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the PROPOSER or any PROPOSER, or to fix any overhead, profit, or cost element of the bid price, or of that of any other PROPOSER, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all statements contained in the bid are true; and, further, that the PROPOSER has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid. Note: The above Non-collusion Affidavit is part of the Proposal. Signing this Proposal on the signature portion thereof shall also constitute signature of this Non-collusion Affidavit. PROPOSERS are cautioned that making a false certification may subject the certifier to criminal prosecution. State of California County of Subscribed and sworn to (or affirmed) before me on this who appeared before me. Notary Public Signature day of , 20 , by , proved to me on the basis of satisfactory evidence to be the person(s) Notary Public Seal City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 38 25A-73 25A-74 Central City of Santa Ana Attn: Gabriela P. Lomeli Project Manager 20 Civic Center Plaza Santa Ana, CA 92701 February 14, 2013 Y ? Y Dear Ms. Lomeli, Thank you for the opPo`rtunity to manage the parking portfolio for the City of Santa Ana. As per our discussion, preceeding are the key points of the negotiated terms we have agreed upon and will be incorporated as part of our proposal. Central Parking has reduced our monthly parking management fee to $2,500.00 per month. We are able to reduce the fee by absorbing the cost associated with our proposed web-based initiatives, which include the following: Web marketing, location Central, WebVlsion, and IT support from our corporate office. In order to ensure a smooth transition, we have incorporated additional community outreach as part of our proposal. Again, we truly appreciate the opportunity to expand our partnership with the City of Santa Ana and look forward to working with you and your staff to improve and enhance the parking program for the citizens and visitors to downtown Santa Ana.^ Sincerely, Muhammad Mansoor Regional Manager Central Parking System, Inc. EXHIBIT 3 25A-75 SECTION 1. COVER LETTER Central PARKING Gabriela P. Lomeli Project Manager City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 Page 1 Central Parking System, Inc. 3420 Bristol St. Suite 225 Costa Mesa, CA 92626 Phone: 714.751.2855 Fax: 714.751.3650 RE: RFP 12-060 - Parking Operations and Management Services Downtown Parking Facilities Dear Ms. Lomeli: We thank you for allowing Central Parking to participate in your request for proposal for Parking Operations and Management Services for the Downtown Parking Facilities. We are keenly interested in providing the services requested by the City, and have formulated our response using substantive. site-specific content and form; in strict adherence with this RFP. Ne are very excited about the opportunity to partner with the City yet again, in helping make their parking program a stakeholder friendly, technologically advanced and customer services driven system which encourages continued economic prosperity for the City. We were recently awarded the Parking Enforcement contract by the City of Santa Ana where we have had much success in managing the enforcement program for the City and the Santa Ana Police Department. Our oroven track record in the City of Santa Ana is one of the many examples of our commitment to the success of our clients. We are confident that we can deliver the same superior service and expertise in managing the City's parking assets. Recently, Central Parking completed a transformational merger with Standard Parking Corporation, which effectively doubled the size of our firm, and significantly enhanced the parking management capabilities we offer our clients, particularly in Southern California - in the municipal realm. Central Parking, now a wholly owned subsidiary of Stardard Parking Corporation, along with our dedicated municipal division, SP Plus@ Municipal Services is well veesed in municipal parking operations as well as the nuances of working with and representing a public entity. As one of the largest operators of parking and parking related services in the nation, we manage over 4,400 facilities nationwide, many of which are located in Southern California. Our combined credentials and qualifications represent the best of both firms; and offer the City of Santa Ana instant access to cutting-edge operating and technology platforms, highly qualified personnel, and quantum administrative capacities to yield a local parking management tour de force. We manage portfolios for many local public agencies including the cities of; Anaheim. Long Beach, Newport Beach, Riverside, Santa Monica, Carson, Anaheim Redevelopment Agency (now City of Anaheim), Los Angeles, LAX Airport and Toll Roads of Orange County. A more comprehensive list of our municipal references is included in Section 2 - Firm and Personnel Experience. Based upon your RFP guidelines, we have prepared a succinct and comprehensive proposal that encompasses the needs of serving the visitors and employees of the City in a manner that is expected by you. Through our on site visits, we have a firm understanding of the complexities of your parking operations. Our desire is to bring as much professionalism to the City in our management of the City's parking program, as you have in your own progressive City management. 25A-76 SECTION 1, COVER LETTER Pagel In our response to this RFP, we have paid special attention to the City's primary goals of selecting a qualified team that will provide a first class operation while ensuring a safe, citizen-friendly, fair and well-maintained parking system. We are confident that with the implementation of our plan, the City will see measurable results in the short term. Our experienced management team will be responsive and will successfully serve the needs of the City with a sense of urgency. In addition, our goal will be to make necessary operational recommendations to maximize parking revenues and to achieve operational excellence through the implementation of cutting edge technology by modernizing the current equipment and to ircrease the quality of services for the public. With decades of experience, Central Parking has proven to be an effective, dedicated and committed partner to the overall success of most complex parking programs for municipalities throughout the United States. The experience and expertise we have gained over the years. along with the qualifications of our management team, our local presence and the financial strength of our corporation makes us a valuable resource to the City of Santa Ana. We have progressively developed site specific manuals, training methods and policies & procedures that provide the operations with a consistent level of service and ultimately achieving operational excellence. We will conduct an initial Operational Effectiveness Study within 90 days of the start of the operations to make the necessary recommendations to the City of Santa Ana to improve the overall condition of the facilities and quality of service. In addition, Central Parking will utilize our current staff in nearby locations for mentoring and training of the staff in Santa Ana. We also will have the ability to mobilize additional staff wit.iin a moment's notice by cross training our staff at Bowers Museum, Santa Ana, South Coast Plaza and Anaheim. This will ensure uninterrupted service as well as our ability to extend our efforts, should the City of Santa Ana desire. Awarding this contract to Central Parking would enable the same excellent service and the extension of our already successful relationship, All elements of this RFP have been reviewed and understood. At the successful execution of a mutually agreed upon Agreement, our intent is to perform the services as outlined in this RFP and as required by the City. We are willing to enter into an Agreement with the City under the terms and conditions prescribed by this RFP and in the Sample Agreement, subject to any additional information provided in the addendums and subject to any exceptions noted during the contract negotiation phase. Please direct all questions and communicaticns regarding this proposal to: Muhammad Mansoor General Manager Central Parking System, Inc. 3420 Bristol St, Suite 225 Costa Mesa, CA 92626 Phone: 714.751.2855 Fax: 714.751.3650 Email: Sincerely, Mohammad A. Mansoor 25A-77 cs z ?g v =z a- a? ? W a? ? y zy W V FIRM AND PERSONNEL EXPERIENCE INSIDE THIS SECTION ABOUT CENTRAL PARKING PARKING MANAGEMENT EXPERIENCE LOCAL SUCCESS STORIES MUNICIPAL REFERENCES LETTERS OF RECOMMENDATION PERSONNEL EXPERIENCE 25A-78 SECTION 2, COMPANY QUALIFICATIONS ANO EXPERIENCE ABOUT CENTRAL PARKING Central Parking, a wholly owned subsidiary of Standard Parking Corporation is North America's largest parking services provider. The company owns, operates and manages parking and related services including: surface and multi-level parking facilities; customer and employee shuttle services; valet and special event parking; parking meter collection and enforcement; design consultation; toll-road collections; parking notice and related services. The Company operates approximately 4,400 parking facilities contain-rig over 2 million parking spaces with more than 30,000 employees. The Company's clients include major municipalities, some of the nation's largest owners and oaerators of mixed-use projects. office buildings, hotels, stadiums and arenas as well as airports and hospitals. With over two million cars parked daily throughout the country, Central is one of the most qualified firms to operate the City of Santa Ana Downtown Parking Facilities. Our national presence, our unmatched experience in municipal operations and the financial strength of our corporation are only a few of the highlights that make us a valuable resource to the City of Santa Ana. With our Orange County office located in close proximity on Bristol/Sunflower by South Coast Plaza, not only we will be able to monitor the City parking program more closely, but also will be able to provide added supervision and needed support to our Santa Ana team. We have over 500 active staff members within a 25 mile radius of Santa Ana. 22 of them are highly skilled managers. We have an additional 1,500 employees serving the greater Los Angeles area. In addition. Central Parking will utilize our current staff at nearby locations including Bowers Museum, South Coast Plaza, Newport Beach and Anaheim for mentoring and training of our team in Santa Ana. We also will have the ability to mobilize additional staff with short notice by cross training our other staff at nearby facilities. This will ensure uninterrupted service as well as our ability to extend our management efforts, should the City of Santa Ana desire. OUR MERGER WITH STANDARD PARKING As referenced it our Cover Letter. Central Parking recently completed a transforma- tional merger with Standard Parking Corporation, which effectively doubled the size of our firm, and significantly enhanced the parking management capabilities we offer our clients. particularly in Southern California - in the municipal realm. Our com- bined credentials and qualifications represent the best of both firms; and offer the City of Santa Ana instant access to cutting-edge operating and technology platforms, highly qualified personnel, and quantum administrative capacities to yield a local parking management tour de force. By blending the best of both companies, we've expanded and improved the services and products we provide to our clients. We're able to invest in technology and product developments more heavily, which will ac- celerate development of cutting-edge parking-related technology to improve the cus- tomer experience and increase value for our clients. We also have the ability to oper- ate as a single source vendor to clients of both companies for a variety of services - whether in parking, transportation, travel demand management, maintenance or security. This means all of our clients can have a single point of contact across a variety of service lines, making it simpler and -pore efficient for them in terms of both supervision and reporting. As if Central Parking's credentials weren't enough, Standard Parking's cherts include numerous municipalities and some of the largest owners and developers of major mixed-use projects, office buildings, hotels, residential buildings, airports, arenas, hospitals and medical office buildings throughout the country. Page i ,.i' ?r 25A-79 SECTION 2, COMPANY QUALIFICATIONS AND EXPERIENCE Paget QUALIFICATIONS AND PARKING EXPERIENCE Central Parking's national presence, our unmatched experience in municipal operations and the financial strength of our corporation are only a few of the highlights that make us a valuable resource to the City of Santa Ana. Across the Americas, Central has built a reputation for providing innovative and effective systems for the management and operation of most complex municipal parking programs. Our experience is unsurpassed in the industry for providing parking management expertise inclusive of management of self park facilities, valet parking services, shuttle and transportation management, meter collections, parking enforcement, violation processing meter maintenance, merchant validations and parking permit programs. Our sound understanding of the principles behind municipal parking operations allows us to effectively manage the parking assets and attain best-in-class levels of efficiency, customer service and market share. We also have a proven and established reccrd of success with a variety of parking equipment, techniques and policies in operating municipal systems. We are well-versed in the recommendation, implementation and management of state-of- the-art parking equipment, as we utilize these technologies at numerous owned and managed facilities nationwide. Central Parking offers a broad base of support - operational, technical, financial, and legal at local and national levels that is unmatched in the parking industry. Our range of experience makes Central Parking uniquely qualified to address the challenges and needs of the parking program for the City of Santa Ana. Systems and Technology - We are innovators in advanced systems and -echnology to enhance revenue generation and cost controls: Client View ;' financial reporting software: Standard Equipment & Technology Upgrade Program5n, Services (SETUP '?'): Automated central cashiering systems; Automated credit card lanes: Pay Park & Go- payment systems, with remote monitoring; Centralized accounting and auditing through our infcrmation network; Computerized monthly billing and keycard control systems; Hand-held cashiering units for peak usage periods, License plate inventory systems. Parking Equipment Experience • Preparing Equipment and/or Construction Specifications, Coordinating Bids, Evaluating Proposals, and Managing the Construction/Installation of Facility Improvements. We have subject matter experts that specialize in parking consulting, operations and technology. Our tearn uncerstands the changing dynamics of the industry and recommending customized parking solutions specific to the needs or clients and customers. Our professionals will help establish optimum functionality of your parking facility and operating systerns. Planning and Demand Analysis Feasibility Studies Functional Design Revenue Control Graphics (Way-Finding) Management Analysis and Operational Audits Corporate Level Support - Our Regional Office in Orange County receives substantial support from our corporate support offices in the region. As a publicly traded company, we understand the fiduciary responsibilities of collecting public funds and accurately reporting revenue with proven Sarbanes-Oxley compliance. The corporate resources that would support parking facility operations on behalf of the City of Santa Ana include: Operations-Senior management focus on operations and audit practices ensures consistency and uniform application of parking management policies; Training and Recruitment-Develops corporate-wide recruitment and training programs for management and non- supervisory personnel; Human Resources-Addresses HR issues and relationships, employee benefits, and employee hiring and discharge issues: Legal-Provides parking managers with litigation, contract maintenance, government reporting, and management/ employment agreements assistance: Claims-Handles all corporate insurance issues; Finance-Separate Accounts Payable, Accounting, Internal Audit, Payroll, and Treasury Departments, work together to provide billing, accounting and payroll functions. Marketing-Development and production of promotional and marketing materials; MIS-Technical support for PCs used at facilities throughout the company: Purchasing-I nplements national purchasing policies to obtain preferred pricing for our clients & most efficient methods. 25A-80 SECTION 2, COMPANY QUALIFICATIONS AND EXPERIENCE Page3 UNPARALLELED MUNICIPAL EXPERIENCE City of Santa Ana City of Newport Beach, CA City of Riverside, CA City of Anaheim, CA City of Santa Monica, CA Los Angeles International Airport (LAX) City of San Jose CA City of Charlotte, NC City of Newport, RI City of Virginia Beach, VA Town of Fort Meyers Beach, FL City of Mobile, AL Howard County. MD City of Evanston. IL City of Lowell, MA City of Portland. OR City of Richmond, VA Denver, CO (RTD) City of Phoenix, AZ Mecklenburg County, Charlotte. NC Union Pacific Rail Road, Omaha, NE City of Nashville, TN City of Tulsa OK LOCAL MUNICIPAL REFERENCES S.A.P.D./CITY OF SANTA ANA CITY OF ANAHEIM Doug McGeachy, Commander - Traffic Divisioq Mike Uren, Parking Manager Phone: 714-245-8051 Phone: 714-765-8930 Email: DMcGeachy@santa-ana.org Email: MUren@Anaheim.net Serving since August 2012 Serving since November 2008 CITY OF ANAHEIM/REDEVELOPMENT AGENCY CITY OF NEWPORT BEACH Christine Long, Senior Project Manager Dan Matusiewicz. Director of Finance Phone: 714-765-4324 Phone: 949-644-3126 Email: CLong@Anaheiin.net Email: DanM@newportbeachca.gov Serving since February 2010 Serving since April 2011 CITY OF SANTA MONICA CITY OF LONG BEACH Frank Ching, Parking Coordinator David Roseman, City Engineer City of Santa Monica City of Long Beach Phone: 310-458-8299 Phone: 562-570-6331 Email: Frank.Ching@smgov.net David.Roseman@longbeacti.gov Serving since June 2009 Serving since April 2007 CITY OF RIVERSIDE CITY OF CARSON Arlene Armendariz, Public Parking Services Suoervisor Ken McKay, Public, Safety Manager City of Riverside City of Carson Phone7 951-826-5953 Phone: 310-830-7600 Ext: 1605 Email: AArmendariz@riversideca.gov Email: Kmckay@carson.ca.us Serving since July 2012 Serving since February 2002 £ r+?ir` [C r1 (?f?EtsG 1+;7t7 fp'(tnt5 or recornriwntlatiofis rtom sClmB or Dot local municipal clients 25A-81 SECTION 2, COMPANY QUALIFICATIONS ANO EXPERIENCE Page4 LOCAL SUCCESS STORIES Past success in municipal projects is a key indicator of what City of Santa Ana can expect from Central Parking with its management of the parking program for the City. Here are profiles of some of our most recent success stories: CITY OF SANTA MONICA Jt.'!'v frL? Seri {: e:' Jivie. 2009 With 25 garages and surface lots and 12.000 spaces, Central Parking System's contract with the City of Santa Monica is the city's largest. Parking facilities serve the recently renovated Santa Monica Mall, the pedestrian 3« Street Promenade and the Santa Monica Library. In addition, the contract covers all beach parking for this busy area which attracts locals and tourists alike. Central is currently working with the City to upgrade several of the city's metered lot and we also manage a popular bike-valet program. Annual gross revenues are close to $25 million with an operating budget of close to $5 million and the implementation of tighter cash controls has resulted in increased revenues for the City. As a testament to Central Parking's success, the City has dust awarded us the management of 3 additional parking facilities. CITY OF LONG BEACH Serrorw erne Ap,,if, 20C17 The City of Long Beach was looking for a highly qualified and experienced operator to manage their entire parking portfolio and Central Parking was able to meet and ex- ceed their needs. This portfolio consists of 7,780 parking spaces at 18 different locations. City Place, a 350.000 square foot retail development in the heart of down- town Long Beach, offers a unique environment with all mixed-use facilities. Central has been very successful in providing a smooth traffic operation while maintaining the highest level of customer service. Close supervision and strict opera_ional con- trols at the Aquarium of the Pacific parking structure have also helped the City maxi- mize their parking revenues. A close partnership with the City on strategic planning for the Grand Prix of Long Beach, 4th of July festivities and the Long Beach Marathon have resulted in a staggering 100% increase in revenues from special events. CITY OF ANAHEIM r.'rr Si:)C:r 2008 Central Parking operates the Anaheim Hilton Parking Structure, a shared facility for visitors and employees of the Convention Center and the Anaheim Hilton. In the past several years, Central has successfully identified and resolved all critical issues noted during the transition period, creating a user-friendly parking environment while maximizing revenues and profits for the City of Anaheim. Strict cortrols and attention to accounting details have increased profits for the City. In addition, we replaced all generic validation programs with a secured validation program, resulting in higher revenues. Through our partnership with the City, we have been instrumental in reducing ope-ating expenses while maintaining the highest level of customer service. In the past 28 months, the City of Anaheim has received a monthly surplus payment in each of these months when historically, prior to November 2008, the City was being invoiced by the previous parking operator. 25A-82 SECTION 2, COMPANY QUALIFICATIONS AND EXPERIENCE Pages LOCAL SUCCESS STORIES (CONT.) CITY OF NEWPORT BEACH Ope_rarurlg ?ocp kl3y 2011 The City of Newport Beach is Central Parking's largest On-Street Contract. It is a true Public-Private-Partnership (P3) and is the first of its kind in California. It is a turnkey operation providing collection, maintenarce, and enforcement services. We conducted a three week technology / feasibility study and made the specific recommendations for implementation. Ou, financial models projected a 25-30% revenue uplift using the proposed infrastructure upgrade/ diligent project administration, and operating efficiencies. City Revenue of 2.8M vs. CP Revenue of 3.6M. City Overhead of 500K vs. Central Overhead of 550K, as well as twice the number of employees to properly administer the program. Our 10 month revenue uplift actual is 29.07%. Central purchased/brokered the equipment on behalf of the City. We were able to use our national discount of 55%. Central also deployed/ installed nearly 1 Million in infrastructure in the first month of the contract. Deployment and installation was all handled in-house by Central saving thousands in up-front costs. Central also instituted a Meter Hotline so that patrons can provide feedback and report meter issues allowing us to better serve the public and keep the system operational. CITY OF RIVERSIDE OperatmO since July 2011 Central Parking was awarded the contract in July 2011. In the first 10 months of managing the City parking program, Central has been successful in increasing Net Revenue by 3.3%, has added 15 single meter stalls, added 21 multi-space stalls and has written detailed analyses for their annual downtown "Festival of Lights" event, providing R01 assessments for various price points should the city decide to charge for future events. Central also staffed the 2011 Festival of Lights event. providing way-finding signage and customer service ambassadors to serve the approximately 50,000 visitors. Implemented a bi-weekly maintenance reporting program detailing various maintenance projects completed throughout the portfolio. Renegotiated vendor contracts to get more accomplished at the same cost and reduced vendor monthly charges by 50% due to our national contract. Coordinated with Riverside Police Dept to alleviate vandalism issues in one garage; increased lighting and added security. Tightened protocols on cash-handling and key-carrying practices and various enhancement projects. ANAHEIM REDEVELOPMENT- DOWNTOWN ANAHEIM Operaring since rebruarp. 2010 Anaheim Redevelopment Agency selected Central Parking to operate the Downtown Anaheim parking portfolio in February 2010. Scope includes the management of 5 Parking Structures with over 2.500 spaces in a mixed use environment. Agency was looking for an operator to assist the Agency in coordinating bids for a new PARCS system while managing fully operational facilities. In this short time, Central Parking has successfully coordinated bids for the upgrade of parking equipment or, behalf of the Agency. Installation of new Skidata equipment is in progress with ore parking structure completed in February 2011. We have implemented an effective management plan that provides these operations with a consistent level of service. Additionally, we successfully identified all audit loop holes and have introduced online billing for all of their monthly parkers (this was non existent in the past). With the help of our audits, we were also able to increase monthly parking revenue. 25A-83 co z :t 0 Ir z a- CL S J W Q F- ? H Z y W V r PERSONNEL EXPERIENCE I- N `S 1 D E T N I' t SECTI;O.N ORGANIZATIONAL STRUCTURE STAFFING PLAN - TEAM SANTA ANA LOCAL ORGANIZATIONAL CHART SENIOR LEADERSHIP TEAM 25A-84 SECTION 2, PERSONNEL EXPERIENCE ORGANIZATIONAL STRUCTURE Since 1968 Central Parking System has grown to be the largest parking services provider in the country. Today the corporation operates nearly 4,400 facilities in over 60 cities across the United States with over 26,000 employees nationwide. The Company is built on the fundamentals of integrity and delivery of the highest level of service to patrons and clients. HIGHLY SKILLED AND PROFESSIONAL LOCAL TEAM Central Parking System's local leadership consists of veteran parking professionals who are responsible for executing our operations and recommendations. Brief descriptions of each member of the team are listed below, with enclosed resumes for local team members: Muhammad Mansoor, Regional Manager-orange County, California Muhammad has over 16 years of management experience with 10 years in the parking industry. He had diverse experience in accounting and retail management prior to joining Central Parking in 2003. His current experience includes working with major Municipal clients within the greater Los Angeles and Orange County areas, including the City of Santa Ana, City of Newport Beach, the City of Long Beach, the City of Anaheim, the City of Riverside and the City of Carson. He is also responsible for company operations and contract compliance at other key projects within Orange County. such as the Toll Roads of Orange County, Downtown Anaheim Portfolio, Anaheim Hilton/Convention Center, UCI Medical Center, the Offices of South Coast Plaza, including the Orange County Performing Arts Center, and Westin South Coast Plaza. Highly skilled in all types of parking equipment and PARCS. Muhammad has provided consultation and prepared facility and capital improvement plans for many major municipal clients including Cities of Long Beach. Anaheim and Riverside including Planning, Construction and Facility Management. Peter Cho, Senior Operations Manager-Orange County, California Based out of our Costa Mesa office, Mr. Cho is a well-seasoned manager with over 16 years of parking industry and customer service experience. Prior to joining Central Parking System 6 years ago, Mr. Cho worked for Modern Parking, Inc. as an Operations Manager overseeing 14 properties in the greater Los Angeles and Long Beach areas. His experience cover all aspects of parking man- agement, including accounts payable and receivable, specials events, valet and self-parking, and mixed-use projects. He is proficient in revenue and asset controls, financial statements, budget management and is well-versed in office software products including Excel, Word and PowerPoint. Mr. Cho has also participated in management training programs and is skilled with getting new parking operations off the ground. He has also coordinated multiple equipment installation projects with Skidata, Ameno & Federal APD. His most recent project consists of implementing an automated parking system for the City of Anaheim, working with the Anaheim Redevelopment Agency. Ryan Martinez, Proposed Manager-City of Santa Ana Ryan has over 13 years of parking management experience. His current responsibili:ies include oversight of cash operations of ten plazas and 46 toll lanes at a time. Full responsibility of scheduling, payrcll. overseeing maintenance, cashiers and maintaining excellent customer service. He is also responsible for monthly budgets, vendor relations, client and company weekly & monthly reports. He oversees Windy Ridge Toll Plaza, one of the busiest toll corridors for the Transportation Corridor Agency with an annual collection of over $32 million dollars in cash project wide. while processing over 17 million vehicles a maintaining an error rate of 0.05%. He has implemented numerous safety strategies, facilitated safety meetings while maintaining a safe work environment. His experience includes working with high profile hotels and hospitals within the greater Los Angeles and Orange County areas, including the cities if Irvine, Newport Beach, Orange. Anaheim. Tustin and Santa Ana. He has a wide range of experience in the parking industry which includes self parking, valet, structures, garages, street sites, specia events and stacked parking. During his 13 years of management Ryan has attended numerous courses and seminars coverirg customer service. Page 1 ?. r f 25A-85 SECTION 2, PERSONNEL EXPERIENCE Paget STAFFING PLAN - CITY OF SANTA ANA PARKING TEAM 25A-86 SECTION Z, PERSONNEL EXPERIENCE Page3 SENIOR LEADERSHIP TEAM / SUBJECT MATTER EXPERTS EDWARD E. SIMMONS EXECUTIVE VICE PRESIDENT Ed Simmons is responsible for the company's Western Division. His duties include the marketing and administration of over 1000 Urban and Municipal facilities in twelve states. He has over 35 years experience in management, leasing, architectural review, project feasibility and due diligence review. He was also President and CEO of Executive Parking for 20 years, which was acquired by APCOA/Standard Parking in 1998. Executive Parking operated over 150 locations in Southern California. Ed Simmons is also president of SP Pluslo Security Services, a wholly owned Subsidiary of Standard Parking. Previously, Mr. Simmons was President of Silverado Security, a private patrol company serving Southern California. He was also Vice PresidenVGeneral Manager for Red Carpet Parking Service, Beverly Hills, CA and owned a consulting firm that provided facility layout, design, access, and revenue control specifications. He was also a General Manager for J & 1 Parking in Los Angeles, CA. Mr. Simmons is a Board Member and past President of the Parking Association of California. He is also a member of the Santa Monica Chamber of Commerce, the International Parking Institute, BOMA, the Institute of Real Estate Management, California Real Estate Women (CREW) and the National Parking Association. In addition Mr. Simmons is a mem- ber of the following Security Organizations; California Association of Licensed Security Agencies, Guards and Associates) & LEAPS (Law Enforcement & Private Security). ROAMY VALERA SENIOR VICE PRESIDENT - MUNICIPAL SERVICES Mr. Valera has been involved in the management and administration of municipal parking programs since 1989, where he started his public parking career as a Parking Enforcement Officer with the City of Miami's Parking Authority. He later supervised the parking enforcement program and was instrumental in expanding the program to include over 30 officers and over 20 hours a day, seven days a week and 365 days a year of operations. Subsequent to his role as Parking Enforcement Manager, lie assumed the on-street management duties for the entire department, including meter collections, meter maintenance and special events. In this role, Mr. Valera developed operational procedure manuals, including policies pertaining to the day-today operations of the entire On-Street Parkirg program. Under his leadership. the c!ty implemented its original Pay-On-Foot (POF) conversion arogram, installing over 200 machines in it first phase and over 500 machines over a three year period. Mr. Valera's experience with the on-street personnel extend to beyond the city of Miami and into his role as the Director of Professional Development at the International Parking Institute (1131). He was instrumental in implementing and establishing the IPI front line training program which focuses on enforcement officers and other front line employees in the parking industry. Over the years he has delivered the training cou?ses to over 1,500 parking professional across the United States and he is still involved in the delivery such a su--cessful program. STEVE RESNICK VICE PRESIDENT - MUNICIPAL SERVICES Steve Resnick is a Vice President of Municipal Services in the company's Western Region and has served in a variety of capaci- ties (operational and business development) during his fifteen years of experience in the parking industry. He is currently re- sponsible for Standard Parking and SP Plusr& business development activities in western states and has been responsible for several notable contract awards including Dodger Stadium. Previously Steve served as a Senior Manager of Operations for various Standard Parking locations throughout the Greater Los Angeles area. He was also a District Sales Manager and Supervisor in his previous capacity working for the largest regional Jarking company in California. In his role as District Sales Manager, he was responsible for general business development in Southern, CA. As District Supervisor, he oversaw day to day operations for the company's Santa Monica Beach parking opera- tions and operations in Los Angeles. Tasks included cash accounting and revenue control functions, sale of monthly permits, training, scheduling, administration, traffic control and cash transport/deposit functions. Steve served on the Board of Direc- tors of the Santa Monica Chamber of Commerce and is a past member of the SMCC's "Parking Task Force" and "Government Affairs Committee". He has had active involvement in the BOMA, ICSC and IREM organizations. 25A-87 0 z Y C) 0: Z ot d .1 W 44 ? C9 y z f/1 W V ? rf[ErQ L. f T{` Ef PLANS F 1NSID,E THIS SECTIO.N EXECUTIVE SUMMARY MANAGEMENT PLAN PROFORMA - OPERATING BUDGETS OPERATIONS PLAN FACILITIES IMPROVEMENT PLAN TRANSITION & IMPLEMENTATION PLAN 25A-88 SECTION 3. PLANS Pagel EXECUTIVE SUMMARY With decades of experience and over 4,400 facilities in the United States, Central Parking has become an expert in managing municipal parking programs. Our vast experience from one project to another, as well as from one city to another, from coast to coast, allows us to share and utilize best practices learned over the past forty-plus years. Our experience working with most complex municipal operations locally within the cities of Long Beach, Santa Monica, Newport Beach, Riverside, Anaheim and many others, allows us to share our expertise of programs within similar communities and have helped us successfully enhance each city's programs. Open communications between the management teams within our region and our clients, allow us to stay on top of ever-changing parking trends, refine operational best practices and find solutions to the toughest problems within these municipalities. Working on solutions both for and with our individual clients is one of our primary goals. City of Santa Ana will greatly benefit from our knowl- edge of the Southern California market and our experience working with similar municipal parking programs. Through a sustained, concerted effort with our dedicated Municipal Division, we have developed and implemented a variety of off-street and on-street parking solutions with the focus of driving economic development for the betterment of the citizens, visitors and stakeholders in cities across the United States. Through our organization's strategic focus, our operations produce not only innovative solutions, but visible and quantifiable improvements in the delivery of exceptional, customer service driven Municipal Parking Programs. Central can provide the City of Santa Ana with every advantage through our comprehensive roster of services. Over the past several years Central has invested considerable time and capital in the development of proprietary programs aimed at driving value to our clients and customers. Central now paces the industry in key areas including delivery of quality customer service, cost containment, and the application of technology. During our on site visits to the City facilities, we noticed key areas that need enhancement to ensure optimum efficiency and to achieve operational excellence. This section will outline some of the highlights of our proposed plan and key performance indicators that will be our primary focus to make the City of Santa Ana parking program one of the best in the nation. PROGRAM HIGHLIGHTS a Holm 1)7 Re.som-c'es - Stria eiet hii-hl t?, mI hnurclilig tuni Iruinilr?, l?rl/ivies • 1:1711110.1 ee . llll eul'ctutcc' • Ftaunc-iul ( ottl% ullcl Ficltlcicn_V Re.spon.sihilih' In the ('ill' • lil't> aml ( 7ctin / licilities - Flt ?clire.11crir7lelrellice /hill Jiw quenitiliable i-cst lls • Re rcmic Flihunceine171 Olllltlrlrlrlilic,y • tirrrln? Stallbl" (1171 .thrltus,?c?u7er1! SIr1)1)ol-l • ( toll l11111111i'[lliolI • i?iiul/%nlc`ll7 1 ?l??rrcrc(e • llrernl/ills enrcl.?'i? lltl!?c? Ph 25A-89 SECTION 8. PLANS Paget MANAGEMENT PLAN HUMAN RESOURCES PRE-EMPLOYMENT SCREENING AND HIRING PROCEDURES Finding The Best Resources to Serve The City Central Parking believes that it is critical for front-line employees to have strong communication skills, demonstrated professionalism, integrity and courtesy. Our Regional Human Resources Manager will assist our site manager in coordinating personnel efforts by supervising the recruitment of new individuals and screening existing staff. EMPLOYEE ORIENTATION AND ON GOING TRAINING Developing Excellent Skills for Customer Service Our orientation process is comprehensive and addresses a variety of new hire issues and provides critical location specific information. New employee orientation discusses the Company and Clie-it's vision, mission, benefits, how to become a Central Parking "ambassador," and the role that each employee plays as the most important person representing our company and our clients. We fully understand that our public face must be one that projects professionalism and friendly, courteous service. Customer service and satisfaction are integral to the service we provide our clients customers. As a result, we have developed customer service training programs that are unique in the industry. Presented in a classroom environment, the curriculum gives employees an opportunity to learn and share ideas about: How to create a positive first impression to each customer - How to handle difficult situations - The importance of body language - Techniques to use for different situations. Employees are tested at the conclusion of the training session and results are placed in the employee's training file. Periodic refresher courses are conducted as needed. In addition to our customer service training, employees are given site-specific training associated with each facility. The purpose of this training is to ensure that all employees are completely familiar with the project. Site-specific training has several components and is covered during a walking orientation tour of the project, including: Familiarity with the parking facility - Familiarity with freeway access - Familiarity with each building and destination in the nearby area - Familiarity with other popular destinations in the area - Local events and calendars - Responses to commonly asked questions. We are confident that with oar ongoing commit- ment to hiring qualified individuals and providing them with proper training will ensure outstanding results for the City. UNION RELATIONS AND GEOGRAPHIC SUPPORT Employees currently working at the City parking facilities are represented by Teamsters Local Union 911. Since 1990, Central has had an excellent relationship with Teamsters Local 911. Our employee work force represented by this labor union is over 1,500 employees in Southern California. This large labor pool will allow us to provide trained employees at each level of the operation. This ensures that each location will be properly staffed and managed even in times of special circumstances and emergencies i.e., employee illness, vacations, and acicitional staffing for special events. Additionally, with our strong geographic presence and over 500 active staff members within a 50 mile radius of Santa Ana, we will have the staffing and management support to reinforce our staffing needs and efforts. Also, our regional office is located just 3 miles south of Downtown Santa Ana which allows for close supervision and much needed management oversight. EMPLOYEE APPEARANCE AND CLEARLY DEFINED DRESS CODE We strongly believe that our front line employees make our brand come alive. If adequate time and attention are not spent to polish an employee's appearance. your corporate brand and image could be destroyed within the first 30 seconds of the customer interaction. Therefore, we invest time and effort in clearly defining employee dress codes at each of our projects and we implement it properly, consequently the appearance of our employees becomes an asset and works for us and our clients. During our on site visits, we noticed significant room for improvement at the City parking facilities when it comes to employee overall appearance including dress code. We will work closely with the City to carefully draft dress code that is business related, promotes City's image and culture and instills pride and confidence in employees. Through our national accounts with industry leading uniform companies including Unifirst Corporation & Cintas, we can secure preferred pricing and large discounts on both uniform rentals and purchases. 25A-90 SECTION 9, PLANS Page3 MANAGEMENT PLAN REVENUE CONTROL PROCEDURES FINANCIAL CENTRAL= Revenue collection for the City of Santa Ana is an enormous responsibility and a primary concern for Central Parking. To provide the most stringent cash collection, revenue reporting, audit, billing, OPEX and credit card transaction security, we have created its own professional services division known as FinancialCentralTM, the parking industry's first homogeneous financial oversight process. Central Parking and Standard Parking, as a combined company collect over $2 Billion dollars annually in cash, check and credit card fee's in its 4,400 operations. As the industry's largest collector of parking fee's, our high level cf financial security is our company's number 1 priority. Company is reviewed by an independent nationally recognized audit firm annually to insure consistent exemplary performance, ensuring reliable revenues for our clients. Company maintains the highest accounting standards in the industry and meets all the requirements regarding Sarbanes- Oxley Act and PCI/DSS Compliance, promot ng greater corporate responsibility through certification of internal controls, authorizations of transactions & protection of assets against unauthorized use & proper recording of transactions. STRICT ACCOUNTING AND CASH CONTROLS Our cash and revenue control procedures accurately identify actual daily transactions and sales and also protect and safeguard parking revenues. These procedures (which can vary slightly for any given location depending upon the facility's specific equipment and bookkeeper staffing) are summarized below: SEPARATION OF DUTIES - Complete separaticn of duties including cashiers, supervisors, managers and bookkeeper. PARKING FEE RECONCILATIONS - The daily sales report is a reconciliation of the total tickets issued to daily exits. The physical inventory, taken later in the evening, is used to reconcile the entrances to paid exits. An ingress/egress report measures vehicle activity by comparing tickets issued and corrected to various meters at the entrance and exit lanes. CASH BANK - A cash bank is issued to each cashier at the start of the shift. The cashier initials the bank inspection log. indicating receipt of the cash bank. At various times during the shift, the cashier deposits all cash in excess of $200 into a drop safe. The cashier places the excess cash in an envelope, notes on the envelope the amount of cash enclosed, seals and initials the envelope, and drops the envelope into the drop safe located in the cashier booth. At the end of the shift, the total revenue collected is recorded on the cashier report form, with an attached fee register computer tape identifying sales activity during the shift. Bank Deposits-The manager collects all of the transient cash each day by retrieving the cashiers' drop envelopes from the safes in the cashier booths. The manager then deposits those funds in the operating bank account. Cashier Reports-Each cashier prepares a daily report for each shift and each day of the week. This report contains the following information: beginning and ending ticket numbers; total tickets collected in each rate category (with dollar extensions reflecting the total dollars represented by those tickets); all non-cash tickets; lane number; revenue col- lection date; cashier's name; shift revenue (as reported by the cashier); deposit amount (as counted and recorded by the cashier): and over/short amounts. FINANCIAL REPORTS AND LOGS - State-of-the art information systems allow Standard Parking to supply all the reports and information our clients need to stay on top of their facilities' performance. We can provide standard monthly reports, formatted to meet clients' needs, covering: • Budgets by month, quarter and year. • Monthly P & L reporting Vs. budget by month, quarter and year. • Revenue detail reporting. • Payroll. overtime, benefit detail reporting. • Insurance claim analysis reporting. • Monthly ledger detail reporting. • Invoice copies. 25A-91 SECTION 3. PLANS Page4 REVENUE CONTROL PROCEDURES (CONTINUED) CENTRAL FINANCIAL REPORTING SERVICES No other parking operator provides auto- mated online reporting of monthly state- 0-A a =: :.. •... , ments. Client Webftlon"" Central Park- .0. ing's proprietary web-based reporting sys tem, provides our clients with a powerful tool to track and access their - parking fi- nancial statements securely and accessibly from their offices. City of Santa Ana will be able to access WebVision'" via the Central'' °?*-- MI]°fsfY °°f1 seAS.r,a-?, Parking website. A password protected °°"?•?^?^? -M ?wMavo. FAAra°.wz? °ut AFM Kt m FA profit and loss statement for each man ..f..ff.?..,.. ACWK •'?' ?a...Q . EMC" aged location is available as well as a con '°"•"""^'°" °"• - " '°"a -gym °•fl?,. ?,am VIRMPAM ..,!® CwnfiO MACE °SJ lJiNm !-aOm Km WMJ m f%=W .1MW solidated portfolio statement with multiple'- °•r +2.13m Nmm :.,am °ISim exam -=W -L im Am wsao as MOD pam* lots. Clients have the ability to "drill down" f °tM Ff ltAlA °t4t 0424 0"" We A by revenue and expense line items. This, """"°'"?'°•^'•°°' • 1101btilNt°M ' NANO NJObm e?f7 feature allows the user to view the details • ?• ^ »A!O s°aa lift" ..r..,wwt.,a. fnAfr)awa_ ? supporting each type of revenue and ex- pense recorded on the financial report. For expense items, the lowest level of drill down is the actual scanned image of third party vendors. INFORMATION TECHNOLOGY AND INTERNAL AUDIT FinancialCentral"" is Central Parking's number 1 priority and is only complete with strong internal audits. Every location, every city, every region, and every department is consistently tracked and audited as to the integrity of its financial controls and its compliance to company's stringent reporting requirements. Central Parking has been an innovator of monthly parking billing programs as well as standardized cash reporting, credit card transaction reporting and security as well as activity reporting for every location. All Central Parking locations utilize the same procedures and information technology. This is critical in maintaining consistency of systems for our clients' benefit as well as our internal audit controls. Cash deposits, credit card transactions, and checks are monitored and reported on a da ly basis to insure accuracy and security of our clients' funds. Central Parking has developed several internal control systems, including CARS'"' - our industry standard monthly billing and account receivable program, TrinTech'M - our internal audit reporting system that captures daily deposits of cash, credit and check per location and automatically compares to daily banking transaction, and DCRm - our proprietary system of reporting every locations transactions and revenue. These step-by- step procedures demonstrate Central Parking's detailed and extensive efforts to maintain cash control. Through our TrinTechrm and DCR'"" information technology platforms, every location's activity and deposits are recorded and checked daily. Central Parking's internal audit team provides surprise location and city audits to test compliance. Spot audits are performed on a regular basis by Operations Manager and Regional Managers. CENTRALIZED ACCOUNTS RECEIVABLE SYSTEM ("CARS") Central Parking System's proprietary permit parker billing system is called CARST"'. CARS'"' is a supercharged, Windows based program with a robust set of features which includes large scale reporting capabilities. The CARS'"' application undergoes testing by outside auditors each year to ensure the company compliance standards as well as credit card data ccmpliance. PARKCENTRALTm - MONTHLY PARKING PAY-ON-LINE L??! )I, Central offers a convenient online payment option and other on-line benefits to its monthly parkers. ParkCentral'"I can be accessed via the our website at www.parking.com by click- ing on the Monthly Parker Online icon. Current Online Advantages: Manage own account Review invoice at a glance - Enroll in e-Billing - Pay current invoice or se' up automatic payments online Additional Features include: Corporate accounts can add, change, or Pay Onlinell delete parkers o-iline - Update vehicle information - Set up auto-payments via credit card or electronic payment (ACH) - Cancel account. 25A-92 SECTION 3, PLANS Pages REVENUE CONTROL PROCEDURES (CONTINUED) SCORECARD REPORT Administrative and operational scorecards measure all facets of operating a parking facility on a monthly and quarterly basis, providing valuable feedback to the client. It offers a quick overall analysis of facility performance with green representing good, yellow representing room for improvement. and red representing below standard performance. This tool enables clients to always be fully informed of facility performance. Here is an example of a monthly report scorecard. m $, a m m ?F 0: -Z ? > w 8 n o Z ?? az ? m R g Z W? m ? it > ° M z OTHER REVENUE CONTROL PROCEDURES INCLUDE: Monthly Access Card Audits - Performed twice a month on the 1st of the month and mid month. Monthly A/R aging and reconciliation - Tracking of all aged receivables and all unpaid monthly parker accounts. Cash Controls - All cash registers and point of sale systems to be password protected. Dual Custody whenever cash is transported or transferred. Flash reports/ Operations Dashboards - Daily Revenue Summaries - Cash Scorecards - FRX (drill down reports showing G/L postings down to the invoice level). Sales audit (revenue and transactions directly reported and reconciled by location Parking Equipment into Deposit Central - Central Parking's proprietary revenue reconciliation software). FINANCIAL GOALS AND FIDUCIARY RESPONSIBILITY TO THE CITY If given the opportunity to manage the City's parking assets, our primary goal will be to ensure that every transaction is fully accounted for, that we collect all monies due and deposit funds in a safe and timely manner with City having full visibility and access to financial reports. In addition to our commitment for strict financial oversight, we will focus on operational recommendations to drive incremental growth and adherence to operational budgets. REVENUE ENHANCEMENT OPPORTUNITIES RATE RECOMMENDATIONS Our Operations Managers and Facility Managers closely evaluate and analyze parking rates and site-specific pricing structures to optimize client revenue objectives. They know their markets well. but as a matter of policy, we routinely perform market rate surveys to compare the parking rates those at competing parking facilities. EVENT PARKING We provide and will offer turn key event parking solutions with online parking reservation options & pre cash procedures. WEB MARKETING Central can deliver an innovative web marketing prograrn to promote downtown Santa Ana parking year round and drive incremental growth. The web program will be centered around creating a customized web page featuring downtown parking info including: directions, Google map, rates and parking facility information. Web marketing programs can capture online searches and direct them to your customized content. Web traffic can also be driven to this page via pay per click ads and linking initiatives with local Santa Ana merchants web sites. Through the strategic initiative briefly described, people driving to Downtown Santa Ana who are searching the web for parking options will find clear & concise content to influence their decision on where to park. MARKETING AND ADVERTISING OPPORTUNITIES Through industry leading advertising firms, such as Adwalls and Advertickets, we will work closely with the City and downtown area vendors to capture undiscovered revenue streams through advertising and marketing opportunities. 25A-93 4) V W O Q 2W Q V y oa r V Z ?µ1Y? G? t 0 ;. ;Q F Mpa.. th r O 0 a O : O O Ot O O O p O C2 p , CD tp f09 N O ppp R Q Qp M 0 p 0 0 0 ?{ N 0 h f` 0 N in O cm W 'tf r N r tD N r f- N N C`t A r r O r tp to e= M O r C N N w N N N N N N w N w N N N yf •: GOO tM M S t51 S S O p p O t?0 w S O S . ?' - O to co, ?p M co O o co O O O G O f? O M to (p M O G O t0 C C! O t0 O to O N (D Go M et N r co O O N t p O N r N N M a CO - r w t9 w w w to w en (» rA EA w to w w N O? O t0 O n t0 M M O O M O O O N O M M n M S O O O f9 M N t00 N N t7 N 0 ' I , p N M V tD C O O co O N Pl fo w w W w m try to to in to +n to v l, . 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Q L a U d5 LU to 2 ¢ c = • 4) V! rn U U C ? c N o d x ' ul H y - Z U Q N . . m a c a V C U N N N V Z 4) .1 c w 0 y q) 0 t 6 { ` U) 0 C V L L 2 X ` N - 6 O7 a O 0) ' L tG m C m tv H c c a) ( ? ' a C L N y a) E _ C L [G CC m ?. G m U , ?` a _ ? N c O w+ E 0) : o E p a ?. O a- d 0 O CL O m to m O E s 0 o d ai ?? c m C 7 a J Y Q W L LI J ?' t o C n H 25A-94 SECTION 8 - PLANS Pagel OPERATIONS PLAN MAINTENANCE PLAN The job dunes of the maintenance personnel will be outlined in our Standard Operating Procedures Manual and we will ensure that the maintenance schedule approved by the City of Santa Ana is followed. More importantly, Central Parking System understands the importance of a properly maintained facility. A well-run facility reduces liability risks, unnecessary repairs and promotes an aesthetically pleasing environment. While it is the job of the maintenance personnel to provide the majority of the cleaning and facility upkeep, maintenance is part of every employee's responsibility. Cashiers are required to clean and maintain the booth, islands and driveways that they are stationed at. Supervisors are required to perform daily inspections of the booths and the garage or surface lot. The manager is also responsible for walking the facility. Our managers and supervisors are trained in the theory of "Management by Walking About" (MBWA). They are also taught to broaden their focus when walking the property to keep an eye out for other issues with landscaping, engineering, security, or any other area that affects the project as a whole. Our Regional Manager and Operations Manager formally audit the facilities each month. This audit is conducted by walking the garage or surface lot and inspecting the facility for any operational as well as maintenance issues. The first maintenance personnel will arrive at 5:00 am. By arriving early, we are able to place an immediate focus on the high-demand areas. Garage A has porous concrete and during rainy weather, pools of neater form throughout the garage. Our recommendation is for the first maintenance person to arrive early enough to vacuum up the water thus avoiding any potential liability issues as well as ensuring we utilize every space for visitor and tenant parking. Our second maintenance personnel will arrive at 10:00am to ensure coverage into the afternoon and evening periods. We recommend utilizing a golf cart for our maintenance staff so that their movements throughout the four structures and surface lot can be better managed. This person's main responsibility will be cleaning but his other focus will be on improving the aesthetics of the garages through painting of the curbs, booths and parking equipment. DAILY MAINTENANCE CHECKLIST Our maintenance personnel will work closely with our Operations Manager and a detailed maintenance checklist will be implemented for every garage and lot. We understand that clear direction and follow up is necessary to ensure a well maintained facility. By having a checklist, our maintenance personnel have specific duties that they must complete on a daily, weekly and monthly basis. This checklist is also signed off by the Supervisor each week after he conducts his inspection of the facilities. While the maintenance staff will be supplied with the necessary tools and supplies to do their job some items demand the use of professional equipment and specialized personnel. We recommend quarterly professional power washing service to remove large oil stains. liquid stains and embedded graffiti. This quarterly cleaning will be pre-walked with the City representative to understand the scope and specific direction for each parking area. We will comply will all local, state and federal laws and make sire that no liquids escape through the drains during the pressure washing process. Upon completion, all hazardous material is placed into an EPA approved container provided and removed by a Registered Hazardous Waste Company. Once disposed of, the state will provide a completed manifest directly to Central Parking and the City of Santa Ana." Parking Strout.- U 25A-95 SECTION 3 - PLANS FACILITIES IMPROVEMENT PLAN DEPTH OF SUPPORT FOR FACILITIES IMPROVEMENT If awarded this prestigious contract, Central Parking will evaluate the entire opera- tion and make recommendations to the City of Santa Ana to improve its assets. Some immediate changes we will make are; painting of the curbs and islands, paint- ing of the parking booths, replacing or reaffixing of wheel stops and leveling all gate arms. A fresh coat of paint is a simple yet very effective method of improving the aes- thetics of a parking facility immediately. Our maintenance team will be trained using the proper tools and procedures for carrying out painting assignments. Central Park- ing understands that the key to a great maintenance program begins witt the right personnel that are trained correctly and equipped properly. Our Regional Manager. Senior Operations Manager will visit the site at least once a week. We are similarly committed at each of our other parking portfolios and welcome your inquiry to our current list of clients. AMBASSADORS The key to every successful parking operation is the front line employees, or as we at Central refer to as Ambassadors. During our many visits to the City of Santa Ana parking facilities, we were surprised to see many of the cashiers not displaying good customer service, whether that was because they were on their personal cell phone or that they were not engaged with the customer during the transaction. Improve- ment of the parking program needs to begin with our front line staff. Friendly, engag- ing ambassadors are what the City of Santa Ana deserves. We recommend imple- menting a detailed disciplinary criteria that encourages employees to exemplify the best in customer service standards. We also recommend that the cashiers wear a more formal uniform such as a dress pant and blazer to project a more professional image. LOSS PREVENTION CHECKLIST Accountability through inspections and support from local management has been one of our keys to success here in Orange County. Our Project Managers meet with the City Operations Manager at least once a week. On top of the weekly meeting, a monthly inspection of the entire property is conducted to identify issues and to make recommendations to our clients. This is achieved through our Loss Prevention Check- list which covers all operational components of each facility. A copy of this report will be included in ou, monthly management report to the City of Santa Ana. SAFETY TEAM Central Parking's Safety Team which is comprised of project managers from every location in our region was implemented in 2009. The team meets quarterly at a pre- designated parking portfolio and spend the entire day analyzing the parking opera- tion. During this walkthrough, potential liability issues and hazards are identified and documented through pictures and a formal report. The Safety Team also inspects the parking office and employee work areas to ensure workplace safety through OSHA standards. A derailed report with recommendations is compiled by the Safety Coordinator and submitted to the client and our Regional Manager. Through this simple yet effectve program. Central Parking has improved the parking operating efficiency and aesthetics at all its parking portfolios in Orange County. Due to page limitations, copies and samples of reports including. Maintenance Checklist, Loss Prevention Checklist, Safety Report and other reports will be made available upon request or during the oral presentations if needed. Page 8 25A-96 iSCTION S, PLANS Page9 IMPLEMENTATION PLAN PHASING APPROACH Our local team and our municipal division are well versed in Turn Key Parking Operations. We have successfully integrated, marketed, upgraded technology, provided stakeholder meeting, educational workshops as well as implementing an Informational & Customer Support Hotline fo, the public. Our knowledge and expertise in successfully transitioning from both City Operated (in-house) operations and from other parking operators is critical and our current client list demonstrates our ability to implement and execute our plans successfully. Our most recent success stories include the transition of parking programs in the City of Riverside and City of Newport Beach. Although one would not consider parking attendant a typical customer service representative. it is critical that the parking management efforts still follow the strict guidelines of a true Ambassador Program. We have found that Premier Training yields outstanding results and have adapted the training principles of our hospitality subsidiary, USA Parking, via its USA Parking University, and with our recent merger with Standard Parking Corporation, through their -Standard University, are now responsible for our national training programs. Our fuWtime.tralners,.with over 60 yet§rs of hospitality exoed6fte will organize and administer training to our Sat to Ana Team at least -twice a year. Training classes will consist of Aggressive Hospitality, Service Recovery. Cash Handling, Loss Prevention, Revenue Management, Relationship Building, City knowledge and much more. All training is based on American Automobile Association (AAA) Five Diamond Standards. These training sessions will be held our Costa Mesa offices near South Coast Plaza on the corner of Bristol and Sunflower. It is not enough to just look to the future, as a category leader we must help define it. Central Parking is accelerating in mu- nicipal service contracts all across the county for just this reason. Through technological advances, national resources, and institutional best practices we have consciously focused on the desired contract deliverables of Exceptional Service Reliability and Cast Effective Solutions for our clients. PERFORMANCE EXPECTATIONS AND EVALUATION Central Parking recommends meeting with the City representative on a weekly or monthly basis to review operations. To ensure a high level of client and customer satisfaction, we also recommend meeting quarterly to evaluate Central Parking's overall performance. At our City of Anaheim project, we meet once a week for an operational overview and meet quarterly for a thorough qualitative evaluation of our performance. A scoring system is used to gauge the performance of our team. Criteria for evaluation consists of categories including customer service, meeting financial thresholds, contract compliance, communication, cleanliness and maintenance. These quarterly meetings are extremely helpful for both the City and our team as it helps identify any areas that need improvement. As the Parking Services provider, Central Parking will comply with all given guidelines from the City and will only require the assistance from the City on matters that are beyond the scope of our contractual obligations. With that being said, we hope to establish an open line of communication with the City liaison, where a strong partnership can be formed. 25A-97 SECTION i. PLANS Page 10 TRANSITION PLAN Management Team including Muhammad Mansoor, Peter Cho, Tim Downey and Ryan Martinez will lead the transition process with ass-stance from our entire municipal team. They will be on site weekly through the first month of operations with continued oversight evaluating the status of our operations on an ongoing basis. Our transition process starts with pre-transition right up to the actual date of implementation. Although there are slight variations to every municipal take- over, for purposes of this RFP. a 30-day transition plan has been prepared with an anticipated start date of March 1, 2013. POST-AWARD TRANSITION Upon receiving notice of award we propose to utilize our municipal team in partnership with the City to perform an initial comprehensive evaluation of the entire operations, facilities, equipment, personnel and processes. Our proposed transition and timetable follows: Phase I - First week • Meet with City of Santa Ana officials to identify priorities, critical issues, immediate needs and future plans. This will be crucial to identify projects and supplies needed between 1-6 months to ensure there is no lapse or delay in service • Meet with sub-contractors (if applicable) and finalize action plans • Assess Office Location (existing or new) • Complete initial evaluation of operations • Engage in critical discussions with City to ensure continuity of operations & services • Begin discussions with all existing employees to introduce who we are, create a dialogue of trust, ease tensions and discuss recruitment • Implement comprehensive recruitment process • Begin recruitment efforts and set expectations • Uniform designed, approved and ordered • Determine initial needs for supplies, equipment, etc. Inventory & order supplies, office equipment, etc. Phase Ii - Second Week • Continue processes from Phase I • From Phase I - initial training and expectations are communicated - an ongoing process • Continue system evaluations and needs - an on going process • Daily communications with City officials • Training program initiated • Meet with downtown merchants and stakeholders - pass out business cards • Update web site for any changes Phase NI - 3rd Week • Set up office, establish e-mail addresses, obtain cell phones • All potential employees are identified and processed • All uniforms ordered • Comprehensive training sessions conducted - ongoing process • Development and revision of SOP manuals • Open bank accounts • Establish utilrties, phone lines, DSL connections, etc. • Continue all things in Phase I & Phase II • Maintain communications Phase IV - End of Phase III - Implementation • Final needs assessment between City staff, Central Parking and current vendors • Finalize training for all employees • All new employees will job shadow next to existing employees • All uniforms received and distributed • Final inventory for all supplies, equipment and processes • Distribute new marketing materials and brochures to all stakeholders • Final meeting with City officials • Contract begins 25A_98 City of Santa Ana Transition Plan Central P A R K I N G C8lr gotY Task Action ,.... Per>lFVn RO"Onsittle .... l.ead.Ticlie" . td$Ysk .: t9tt pate: .ante Administration Transition Meeting with City Reps Muhammad,Peter,Ryan 2/18/2012 Business License Muhammad 2/18/2012 Develop Client/CPS Contact List Jeff 2 Da s 2119/2012 Prepare Plan of Operations Muhamrnad,Peter,R an 14 Da s 2/18/2012 Obtain Location Number and Banking Info Muhammad 3 Days 2/18/2012 Set u Revenue Reporting Features Peter 1 Da 2/19/2012 Set u Location Central Peter 1 Da 2/19/2012 Contact Digital Payment Tech (Luke) Peter 1 Day 2/19!2012 Contact Current Vendors Peter 2 Da vs 2/19/2012 Transition Update to City 2/19/2012 Transition Meeting with City Reps 2/21/2012 Transition Update to City 2/2512012 Transition Meeting with City Reps 2127/2012 Transition Meeting with City Reps 2/28/2012 Commence Operations 3/1/2012 Personnel Staffing Identify staff needs Muhammad, Peter,R an 3 Da 2/1812012 Evaluate existing personnel Muhammad, Peter. Ryan 3 Da 2/18/2012 Place ads for help Local HR 1 Da 2/1812012 Interview applicants Local HR, Ryan 3 Da vs 2/2112012 Submit Back round Checks Local HR 5 Days Make offers Local HR, Ryan NA Develop Schedules Peter, Ryan, Local HR 1 da 2/25112 Conduct Employee Orientation Local HR 2 days 2/26/12 Distribute Employee Handbooks Local HR See above Performance Evaluation Forms Local HR See above Health Insurance Billing Local HR See above Complete Personnel Files Local HR See above Set U Payroll Records Local HR See above Order Name Tags Peter 1 Da 2125/12 Uniforms Design Uniform (See Marketing for Logo) Muhammad,Peter,Ryan 10 Days 2118/2012 Get client approval for uniforms Ran See above i 2/21/2012 Order uniforms Peter See above 2125/2012 Operations Training MVP and Ambassador Training Muhammad. Peter. Ryan 1 Days 2/26/2012 5 Star Hospitality Trainin Local HR 1 Da vs 2/27/2012 Location Forms Deposit/ Cash Transfer/Vendor Logs Ran 1 Da 2/1812012 Develop Cashier Reports Ran, Peter 1 Da 211812012 Develop Standard Operations Procedure Ran, Peter 10 Days 2/18/2012 Office Order office supplies Peter 1 Da 2/21/2012 Set u CARS month) parking Peter 2 Days 2125/2012 Transfer / Su ercede Utilities Peter 2 Days 2121/2012 Obtain Monthly Billing Information Ran 2 days 2/21/2012 Garage Su lies Ticket inventory Ran 1 Da 2/2112012 Validation Inventory Ran 1 Da 2/21/2012 11212013 Page 1 City of Santa Ana Transition Plan 25A-99 0 z Y Q* CXZ a- CL .j W aIV? Cc y Z y W V LABOR RELATIONS INSIDE THIS SECTION RESPONSES TO RFP QUESTIONS UNION RELATIONS PEOPLE CENTRAL 25A-100 SECTION 8.1, PEOPLE CENTRAL- 4. LABOR RELATIONS Provide a response to the following questions: a. Characterize your company's labor relations program and union representation. Central Parking has various locations throughout the Company that are unionized and maintains a good working relationship with various Teamsters, SEIU and UFCW locals throughout the Western Region. We have tremendous experience in dealing with un- ions and endeavor to work harmoniously. r. Are the eniplovres who wdl be staffing City facilities currently represented by a rec- ognized labor Lin 10n or governed by a collective bargaining agreement? Yes, the employees are represented by a Union and there is a collective bargaining agreement in place. n. Which uniar? or association is recognized? The Union representation is Teamsters 911 and we have maintained a good relation- ship with this Union for many years. is!. It there is a collective bargaining agreement. when is it scheduled to expire? Current collective bargaining agreement is scheduled to expire on May 31, 2014. In the past 3 years, has the company been involved in any labor representation or collective bargaining disputes with one or more labor organizations? In our relationship with the unions that have included primarily the Teamsters 911, SEIU, Engineers and UFCW, we have never been involved in any labor representations or collective bargaining disputes including the past three years. In the past 3 years, has the company been involved in any labor representation or collective: bargaining disputes with one or more labor organizations? Same answer as question (b) above. UNION RELATIONS Teamsters Local 911 currently represents the employees working at the City of Santa Ana Parking Facilities contained in the RFP 12-060. Since 1990, Central Parking has had an excellent relationship with Teamsters Local Union 911. Our employee work force is over 500 employees in Southern California with the largest employee base that is recognized by this union working at LAX Airport. This large labor pool will allow us to provide trained employees at each level of the operation. This ensures that each location will be properly staffed and managed even in times of special circumstances and emergencies i.e., employee illness, vacat ons, and additional staffing for special events. Page 1 z f. 25A-101 0 z Y V lz Z Q d. : J W Q F ? y z y W t? HUMAN RESOURCES x ?Y7 1,NS1.DE THIS SECTION OVERVIEW PANGEA E-RECRUITING AND ONBOARDING PRE-EMPLOYMENT SCREENING AND HIRING NEW HIRE ORIENTATION EMPLOYEE TURNOVER EMPLOYMENT POLICIES 25A-102 SECTION 5, HUMAN RESOURCES Pagel EMPLOYEE RECRUITING - OVERVIEW The business adage, "People are a company's greatest asset", has been modified by Central Parking System, Inc. to read: -The Right people are a company's greatest asset". With over 26,000 employees representing our clients at facilities across the United States, we have developed a comprehensive employee recruitment, selection, training, motivation, and development program we call PeopleCentra/Tv. It is crucial to put our best talent into the right positions at your facilities. We recruit and train employees with qualities such as good character, integrity, loyalty, trust and the right attitude. This allows us to provide our clients with employees that are able to successfully perform their jobs. Central Parking vies for talent in a competitive environment. To continue >o recruit and retain the best resources to serve our clients, we have developed a comprehensive employee recruitment, selection, training and motivation process specific to the parking industry. The following provides an outline of our human resources employment practices and our employee orientation programs. We believe the City of Santa Ana will find that our practices will meet and exceed those outlined by this RFP. In adcition to the stringent background checks that all employees must go through before receiving a job offer, we can comply with the requirements of Live Scan Background checks. An "Ambassador's Approach" to Public Parking - We will use a proactive Ambassador's Approach to enhance customer service at each of the Downtown parking facilities, while partnering with the City. local businesses, residents and visitors, in administering and delivering the City parking management program. We are an Equal Opportunity Employer, committed to personal and professional advancement, aided by advanced training and customer service initiatives, which give our Parking Personnel a distinct advantage in dealing with the general public in Southern California. We will positively promote the City image of public parking while maximizing its parking revenues. We are confident that our operational efficiencies, as outlined in the body of this proposal, will produce exemplary levels of parking customer service for visitors, guests, jurors. employees, and stakeholders, while minimizing operational costs, and enhancing revenues. Central Parking has developed Training programs geared to prepare and mentor our staff prior to going out in the field. Our numerous nearby operations will serve as an added training ground by which we can team our new Ambassadors in Santa Ana with seasoned veterans for field training. This will allow for the new employees to learn and to ask questions in the field and apply the tools learned in our two classroom training sessions which were developed solely for use in our Ambas- sador Program. These two training sessions are in addition to New Hire Orientation and Customer Service Training ses- sions. Next our staff completes our Ambassador Orientation and Conflict Resolution Training. This training introduces the new Ambassador to the community in which they will be working. History of the City, destinations and other facts about the community are taught. Also, as the name suggests, this program is geared for classroom as well as role playing scenarios to assist our employees with conflict resoluticn techniques and proven methods of dealing with upset customers. P44E-3 r_1 Q ENE:3' . t , , PANG EA-E-RECRUITMENT & ONSOAROING Central is committed to using technology to streamline our processes, increase efficiencies, ensure compliance and reduce expenses in all areas, and hiring is no exception. After testing the Pangea/GIS system in select markets, we are rolling out the system companywide. The Pangea Talent Acquisition Suite gives Central the competitive advantage in the hiring game. Pangea is a single web-based platform, built on an advanced architecture to provide unrivaled configurability and efficiencies in corporate hiring programs. Pangea offers Central, and our clients, one unified and successful talent acquisition solution. With Pangea, applicants apply for jobs via a web-link found in the job posting. This eliminates the need for handwritten applications in which data needs to be keyed in and can easily be misread. When applicants enter their information on their own in to Pangea and pass an initial screening process, they can easily progress through the process with e-verification and tracking. Prescreening questions are automatically evaluated, reducing the time previously spent manually reviewing unqualified applicants. Pangea's databases are instrumental in theft and accident reduction, through the elimination of hiring known, high-risk employees. In addition, Pangea puts Central Parking in a position of increased legal compliance, including adherence with discrimination laws and the Fair Credit Reporting Act. 25A-103 SECTION d, HUMAN RESOURCES Paget EMPLOYEE RECRUITING AND TRAINING PRE-EMPLOYMENT SCREENING AND HIRING Central Parking believes that it is critical for front-line employees to have strong communications skills, dernonstrated professionalism and courtesy. Our "Interview Guide" has been developed to screen for these core competencies so that we are able to accurately select the best person for each open position. Our Regional Human Resource Manager, Yolanda James, will coordinate our personnel efforts for the City of Santa Ana, supervising the recruitment of current employees as well as new individuals needed to fill open positions. She also will be responsible for coordinating the training of all employees, including Central Parking's customer service training program. Our ongoing commitment to hiring qualified individuals and providing them with proper training is the first step in achieving Superior Customer Service. RECRUITING Central Parking uses a variety of avenues for recruiting front-line personnel. Our company's recruiting sources include colleges, business colleges, the Urban League, senior citizen groups, churches, other employees, the United Way, websites, internal job postings, and social service centers. Interviews take place at our main office, and are conducted by the Human Resource Director or Manager. The interview targets past experience, appearance and interfac ng with the public. Using our standard "Interview Guide" equips the interviewer with questions to evaluate each candidate in order to make good selections. DMV CHECK/ BACKGROUND CHECKS A Department of Motor Vehicles check is critical, especially if employees will be driving buses and customer vehicles. Central Parking also has a drug testing program used for those individuals who are driving vehicles. A criminal check and na.ional Social Security search is completed as well. STEP ONE SURVEY This 20 to 30 minute multiple-choice survey is an insightful tool in our hiring process. It tests a potential employee's aptitude for honesty, integrity, and work ethic, while also identifying any vulnerabilities towards substance abuse. After the assessment is scored, a Results Report is sent to the Human Resources Director or Manager. In addition to the facts of the report, it also suggests key interview questions that are derived from the potential employee's survey performance. DEVELOPING EXCELLENT SKILLS FOR CUSTOMER SERVICE Central Parking has a formal employee orientation and training process in place. Our orientation process is comprehensive and addresses a variety of new hire issues. New employee orientation discusses the Company's vision, mission, benefits, how to become a Central Parking System "arnbassador," and the role that each employee plays as the most impor-ant person representing our Company. Central understands that our public face must be one that projects professionalism and friendly, courteous service. Customer service and satisfaction are integral to the service we provide our client's customers. As a result. we have developed a customer service training program for all employees that is unique to our industry. 25A-104 SECTION 5, HUMAN RESOURCES Page3 EMPLOYEE ORIENTATION AND TRAINING Presented in a classroom environment, the c.irriculum gives employees an opportunity to learn and share ideas about: How to create a positive first impression to each customer? How to handle difficult situations? The importance of body language. Techniques to use for different situations. In addition, Central Parking offers a written test as one of many tools available for tra ping our customer service personnel. Another innovative training program is 'Taking C.A.R.E. of Business: Choosing to Deliver Remarkable Customer Service.' Developed exclusively for CPS, the program is designed to help employees understand the essential elements of customer service and provide basic skills. "Taking CAR.E." is a one-day, video-assisted session that is highly interactive. The trainer uses discussion and workbook activities that blend actual employee scenarios and real work situations in three video training segments. All hourly employees are placed in the C.A.R.E. customer service-training program during their first few days of training and before being placed in the work setting. The program's key elements center around four concepts: • C onnect to our customers • A ttention to their needs • R esponsible for their problems • E nthusiastic about our role as service providers Employees are tested at the conclusion of the training session and results are placed in the employee's training file. Periodic refresher courses are conducted as needed. In addition to our customer service training, employees are given site-specific training associated with each facility. The purpose of this training is to ensure that all employees are completely familiar with the project. Site-specific training has several components and is coverer during a walking orientation tour of the project, including: + Familiarity with freeway access + Familiarity with each building and destination in the nearby area + Familiarity with other popular destinations in the area + Local events and calendars + Responses to commonly asked questions CITY INVOLVEMENT IN HIRING AND TERMINATIONS A COMMITMENT TO OPERATIONAL EXCELLENCE Central understands the City's right to approve of any employee assigned to work in the City and fully complies with that request. In regards to hourly personnel, Central is open to any criticism or compliments the City has about any of our employees. We welcome any feedback City provides us about an employee's performance and that employee is rewarded or disciplined accordingly. Since all employee records are confidential, we are unable to share any information contained within. At the same time, we understand that the City enjoys the right and ability to say which employees are allowed to represent the City. All requests are reviewed with the City; with the City having the final decision. EMPLOYEE TURNOVER - KEEPING GOOD PEOPLE HAPPY' Since our front line employees are the key to our success and the key to properly representing the best irnage of the City, we are very concerned with addressing employee turnover. Our first step was just outlined to you, and that is to hire the right people. During our recruitment process we describe in detail the responsibilities and daily work schedule for each location and each position. We look to match people's personality and desires with the location they will be working at. Some employees like busy days, while others are looking for slow days. In either case we are looking for friendly people to serve the public with genuine courtesy and professionalism. Our second step is to properly train the employees so they clearly understand what the Company's and City's expectations are for them. These policies and procedures are explained in detail and written out for them so it is clear. Issues or violations of these policies and procedures are addressed formally in writing to help the employee understand what they did wrong, why it is important for them not to repeat the offense, any additional training if needed and the next step in the disciplinary process if unwanted behavior continues. We generally follow a four step disciplinary process - verbal warning, written warning, suspension, termination. Smaller offenses may have two warnings in the early part of the process and some violations result in suspension and on occasion immediate termination. Our goal is to work with the employee, make sure they understand our policies and to help them succeed. 25A-105 cs z_ ?v ?z a- a. .1 W a p. N i- } z N W V OVERVIEW TRAINING POLICIES x INISIDE THIS SECTION FRONTLINE TRAINING CUSTOMER SERVICE TRAINING STANDARD UNIVERSITY MANAGEMENT TRAINING 1 e; r? -01 25A-106 SECTION 6. TRAINING POLICIES Pagel EMPLOYEE TRAINING Our company's reputation for excellence in on-site management is built on a comprehensive, award-winning training system. The process identifies and develops the skills and behaviors required to enable all of our employees to perform up to our stringent expectations. No other parking company places as high a premium on customer service enhancement and its positive linkage to a professional, in-house training department. The excellence of our comprehensive training programs has been recognized by both the parking and training industries. We have been the recipient of five national awards, including two Telly awards, and a national award for excellence by the National Association of Industrial Office Properties (NAIOP). The National Farking Association's Certified Parking Facility Manager (CPFM) program establishes an industry-wide standard of parking operational knowledge accepted by all parking management companies. As a combined company. Central and Standard Parking lead the industry with the most CPFM managers of any parking company in the United States. Tapping the Internet as a training resource, we have an in-house, Web-based training system; Standard Univer- sity- -to supplement formal classroom and `rontline training programs. Most importantly, we recognize that every location has unique, individual requirements for defining and carrying out opera- tional excellence. To that end, we always consult with our clients to ensure that all operational expectations and location- specific needs are identified and addressed in the development of our training solutions. FRONTLINE TRAINING, RIGHT FROM THE START Training of new frontline employees-cashiers, valet attendants, maintenance workers and shuttle bus drivers-begins on the day of hire with an orientation session that, in addition to formally introducing the company to the employee, sets out the specific technical and customer service training programs the employee will be required to attend. Orientation is promptly followed by technical skills training, which provides employees with the mentored, on-the-job learning experience needed to begin contributing to facility performance right from the start. MASTERING THE THREE KEYS TO CUSTOMER SATISFACTION Within the first three months of employment comes the enhancement of customer service skills through our targeted Three Keys to Customer Satisfaction classroom-based training program. Our reputation for outstanding customer service has been built on these formal training sessions that emphasize facility and employee appearance, corstructive customer relations and positive resolution of customer inquiries and concerns. These sessions optimize learning through exercises that encourage interaction between participant and trainer. Key #1-First Impressions: Facility and Employee Appearance. Employees learn the importance-both for themselves and the parking facility-of maintaining a well-groomed appearance. As the company's classroom trainers point out, in just ten seconds a typical customer forms eleven distinct impressions about the company and the service to be re- ceived. Key #2-Successful Customer Interactions. Nary a minute goes by without cashiers, valet attendants and bus drivers interacting in some way with parking customers. To make sure these interactions always proceed smoothly. company trainers emphasize the importance of looking good, warmly greeting customers. communicating in a polite and profes- sional manrer, and saying good-bye with a sincere thank you. Key #3-Effectively Resolving Customer Issues. Some customers want information, some want solutions and some just want an ear to bend. Training helps frontline employees to identify the issue and the appropriate approach to take. CUSTOMER SERVICE COORVINATORS To ensure that training objectives are met at each location, the company designates an operations manager or other ad- rnirnstrative employee to be a Customer Service Coordinator for a group of locations. Working in partnership with the train- ing department, the Coordinator launches and implements new training programs, establishes the training system at new locations, manages the Strive for Excellence Program and measures the results of these programs for continuous im- provement. The Coordinator is responsible for aligning company standards with the specific needs cf clients and loca- tions. 25A-107 SECTION $, TRAINING POLICIES Paget REINFORCING CUSTOMER SERVICE: STRIVE FOR EXCELLENCE To reward positive customer service and operations standards, the Company follows up its training with Strive for Excel- lence, a compilation of more than 40 distinct employee motivation and rewards initiatives that reinforce the skills learned during the training process. Some of these reward and recognition programs: • Frontline Jeopardy is a month-long game led by facility supervisors to encourage employee knowledge of operational and customer service policies and details. Employees who answer 12 questions correctly in a given month receive a prize, such as a gift certificate. • Awesome Attendance rewards team efforts at being on the job every day for a month. Winning teams receive pizza parties and certificates of achievement. • Beat the Clock helps reduce tardiness by rewarding employees who show up early for work each day. • Looking Good gives every employee properly in full uniform for a week a playing card. At the eno of the month, the employee with the best poker hand wins a gift certificate, although everyone gets a prize. • A Is for Accuracy recognizes cashiers who complete accurate daily revenue reports. • I've Got the Drlve showcases shuttle bps drivers and valet attendants who provide top-notch customer service and meet performarce goals. Employees are also required to attend formal refresher training sessions to "brush-up" on their customer service skills. These sessions cover topics such as customer relations, creating first impressions and organizing workstations. STANDARD UNIVERSITY" -CUSTOMIZED, ON-LINE TRAINING We have found that the wide array of management skills that we require-from technical skills such as accounting proce- dures and computer efficiency to management skills such as employee development, customer service proficiency and the ability to successfully delegate and supervise others-necessitates the use of several training methodologies. Com- pany uses video-based classroom sessions, self-directed learning packages and computer-based training programs to form a comprehensive. effective program providing management employees with the tools they need tc successfully man- age parking facilities up to our exacting standards. Utilizing the power of the Internet to effectively combine and leverage these training activities, our company has developed an in-house, Web-based training system-Standard University--to provide every manager with the knowledge aqd skills needed to successfully perform specific job respcnsibilities. From a secure company Web site, each manager's .supervisor downloads Standard University- content to create a customized training plan for that manager. Each module of selected information contains corporate policies, instructions and exer- cises that blend learning theory with practical, on-the-job applications. The supervisor evaluates the manager's work prod- uct to ensure that the participant has mastered the content and identified location-specific requirements. The Web site also houses related materials to support continuing education and career development. Our corporate training depart- ment downloads status information from the Web site to assist management in assessing the training progress of individ- ual employees. SPECIFIC TRAINING PLANS FOR MANAGERS Facility Managers - New facility managers participate in an independent training program that includes a workbook and a supplemental video that emphasize the development of leadership skills: keys to recruiting, interviewing, hiring and train- ing skilled employees; understanding the disciplinary process: and meeting our demanding customer service standards. In addition, we provide our facility managers with several local resources to augment and complete their training. Each facility manager receives a computer-based training program that guides the manager through the company's on-line in- formation computer database system. This computer-based training itself s then supplemented with a job and accounting guide. Senior Managers - Our senior managers participate in a similar self-directed training program that focuses on supervisory skills as well as planning, organization, delegation and motivation. The training program design also allows managers to practice their new skills while on the lob. Thi; supervisory skills developn-,ent package is complemented with an orienta- tion at our corporate headquarters, where each senior manager spends time enhancing his or her skills in the fields of hiring and payroll processing, revenue control and auditing procedures, profit and loss statement analysis, budget fore- casting, and marketing for maximum profitability. 25A-108 CS z =U ?z a- CL A W sP- ? y 1- } z y W U STAFFING POLICIES RESPONSES TO RFP QUESTIONS RECRUITING AND ONBOARDING HOURLY WAGE RATES SUMMARY OF EMPLOYEE BENEFITS PROGRAM DISCIPLINARY PROCEDURES 25A-109 INSIDE THIS SECTION SECTION 7, STAFFING POLICIES Pagei 7. STAFFING POLICIES Provide responses to the following questions: a. Will you recruit personnel for this contract differently from other standard parking contracts? If so, how and why? What specific recruitment methods will be used? Central will be consistent in its staffing policies and will not apply differently than with other clients. b. With other parking companies advertising for employment opportunities, what will you do to meet the City's needs? Central has dedicated human resource professionals to rneet the needs of the City. This team identif es the need at the point of the project transition and actively recruits via colleges, job fairs and on-line job boards to acquire the best candidates. Additionally, Central invest time in a high school preparedness program and as a result of the relationship Central often has access to some of the top high school graduates. c. List the wage rates and billing rates by type of position for each of the type of services to be provided. Response must include the following: i. Suggested beginning hourly wage for each position. WAGE RATES - CASIIIERS, ATTENDANTS AND MAINTENANCE Starting Wage - $9.00 The above wage rate are mandated by the collective bargaining agreement with Teamsters Local 911. Wage rates for current union members working at the City of Santa Ana Parking Facilities range from $9.00 - $12.05. Non union salaried personnel wages have been included in the pro forma submitted herein and will need City of Santa Ana approval. ii. A detailed cescription of all fringe benefits offered to employees. EmPLOVEE 13FNF.FITS SUM'MARV NON UNION SALARIED PERSONNEL Offering a Competitive Package Central Parking System provides an extensive benefits package to eligible employees and includes the following: • Medical and Dental Insurance • Retirement/ 401(k) Benefits • Paid vacation and sick leave • Paid Holidays including one paid personal day • Payroll Processing/ New Hire Processing • Competitive wages and salaries A summary of Central Parking Employee Benefits Plan is outlined in the chart on the next page. UNION MEMBERS A detailed description of all fringe benefits offered to union members are outlined in the enclosed charge on page 3. Iii. A detailed description of any employee incentive programs offered by the company that rewards/encourages employee safety, productivity, excellent customer service. Central would introduce an Employee of the Month program that would recognize an employee for excellence in safety, customer service and attendance. Additionally, employees are acknowledged for outstanding results when "Secret Shoppers" have identified such through spot audits. Central several times per year holds an "In Celebration of You" day for employees and this is a time for the managers to acknowledge employee's for their service and performance with Cen- tral which typically is accompanied by a small token of appreciation. 25A-110 SECTION 7, STAFFING POLICIES Paget EMPLOYEE BENEFITS PLAN SUMMARY BE, MIT O , , J3 F? "i?Ri f " Medical & Dental 90 calendar days Medical - PPO Plan through United x X Insurance Health Group. Dental - Delta Dental. X X (May purchase dependent Coverage) Life 90 calendar days Paid for by Company - $10,000 X X Insurance Paid for by Company - $20,000 X Paid for by Company - $80,000 Vacation 1 year 1 week paid vacation x X 3 years 2 weeks paid vacation x Paid 90 calendar days Accrue 112 day per month (up to 6 X X Sick Leave working days per year). Employee may accumulate up to 30 working days Paid 90 calendar days New Year's Day, Memorial Day. X X Holidays Independence Day, Labor Day, Thanksgiving Day, Christmas Day Petty 90 calendar days Time off without pay for personal x X Leave matters Emergency 90 calendar days 3 days off with pay in the event of x X Leave death of immediate blood relative Medical 1 year Up to 6 months recuperative leave of x X Leave absence Educational 1 year Up to 2 years off to continue education x X Leave Military 1 year Two weeks off to attend camp, in x X Leave addition to regular vacation; military pay supplemented to equal normal earnings Jury 90 calendar days Time off granted, and jury pay supple- X X Leave mented to equal normal earnings Military 90 calendar days Employee re-hired in the event of ac- X X Re-hire tive duty or reserve component call-up Tuition 1 year Employee reimbursed cost of tuition & X X Reimbursement fees for approved study 401(k) Plan 1 year 100%, Company Matching Funds up to x X 3%, of employee salary invested. $1K Super Match. No vesting period. Personal Holiday 6 months Employees granted a personal day off x X with pay. SECTION T, STAFFING POLICIES Page3 UNION MEMBERS FRINGE BENEFITS SUMMARY Benefit Description Qualification HolitlaYs New Year's Day, Memorial Day. July Fourth, Labor Day. Must have completed 6 months of employment. Thans ivin Day, Da After Thanksgiving, Christmas Day, Work more than 90 hours a month. Paid 1/2 the difference between the amount received Jury Dutv forjuryservice and the amount he/she would have Any employee earned workin their regular shift After one year and up to the third year = 5 days Vacatwrl Year 3 thru 7 = 10days All employees, part-time employees shall accrue Year 7 thru 10 = 15 days vacation pay on a pro rata basis After 10 ears of employment, employees are eligible Sick Days 2 Sick Days a year after 6 months of employment Full Time em ployees only Personal Leave (Non Paid) Up to 30 days After 5 months of employment Family Medical Leave Act After 1 year of service & completed at least Leaves of Absence Bereavement Leave 3 Days pay for loss of immediate family (Father, Mother, All emloyees brother, sister, husband or wife, son or daughter) 25A-112 SECTION 7. STAFFING POLICIES Page4 STAFFING POLICIES AND RECRUITMENT METHODS Central Parking has made a company wice commitment to providing the highest quality personnel at each of our operations. We seek out committed, reliable, friendly and professional personnel to represent cur clients and the company. Our ability to compete against other companies has been quite successful. Our company offers one of the best health benefit packages, one of the better vacation/sick policies, competent managers, huge growth potential, we pay for their uniforms, we reward employees for exceptional performance, we offer a higher wage and most importantly, we treat our employees with "Respect" and "Dignity". Many of our employees have come to us from other parking companies seek- ing better work environment. Several times these employees had 2-3 three of their old co-workers join us as well. DIVERSITY RECRUITMENT We are committed to actively recruiting a diverse employee population. To ensure that the most qualified individuals are included in each applicant pool considered for various positions, we recrui from a variety of sources, including: • Print Advertising • Diversity Recruiting Firms and Specialty Sourcing: Minority, Female. Veteran • Minority Job Fairs/Career Days • Employee Referrals • Internet - Diversity Web Sites • College Recruitment, Co-Ops & Interns TEMPORARY VACANCIES When addressing temporary vacancies due to illness, vacation or termination we employ four different approaches: Part Time Employees - During the hiring process we are careful to select part time people to ensure flexibility within the operations. Most of our part time employees are always looking for more hours and are hired with the flexibility to meet the needs of our various operations. Typically, our part time work force makes up 60% of our employee base. Floating Employees - Because of our large presence in the area, we promote key individuals to fill a role as a floater. These employees are hand selected because of their experience, custorner service skills, attitude and ability to work a completely flexible schedule. Our floaters get cross- trained at various facilities and receive a higher wage (typically $243 more per hour) and work based on operational demand. Currently we employ 1 floater for approximately every 50 employ- ees. One of these floaters is dedicated to the City of Santa Ana and Costa Mesa. Floaters have the title of a supervisor or above but they perform required tasks of the location where they are assigned. Temporary Personnel - In the event we feel that our own internal resources are not sufficient to cover we have hired tem- porary (seasonal) employees. This situation only happens for large extended needs. Many of our ex employees come back to for temporary work for holidays or while scnool is out. These requests generally happen when the need for temporary help is most likely to happen. CITY INVOLVEMENT IN HIRING AND TERMINATIONS A Commitment to Operational Excellence Central understands the City's right to approve of any employee assigned to work in the City and fully complies with that request. In regards to hourly personnel, Central is open to any criticism or compliments the City has about any of our em- ployees. We welcome any feedback City provides us about an employee's performance and that employee is rewarded or disciplined accordingly. Since all employee records are confidential, we are unable to share any information contained within. At the same time, we understand that the City enjoys the right and ability to say which employees are allowed to represent the City. All requests are reviewed with the City; with the City having the final derision. 25A-113 SECTION ?,STAFFING POLICIES Page5 DISCIPLINARY PROCEDURES In addition to creating a positive work environment, we also understand the need to address unacceptable behavior and violations of City and company policy. The way in which we address this with our employees is to make it clear to them what our expectations are, review policies and procedures, explain our disciplinary criteria and have them sign off on that understanding. The following standards are in place for all employees working for the City of Santa Ana: DISCIPLINARY CRITERIA Absence / Tardy - Appearance / Uniform: Verbal - combination of 3 occurrences within 30 days results in a verbal warning Written - Any occurrence of Absence/Tardy. Appearance/Uniform within 60 days of Verbal results in a written warning Suspension - Any occurrence of Absence/Tardy. Appearance/Uniform within 60 days of Written results in a 2-day suspension Termination - Any occurrence of Absence/Tardy, Appearance/Uniform after a suspension results in termination... unless there is documented proof of a legitimate Absence or Tardy Customer Service Complaints: Verbal - Based on evidence and type of complaint and the client's wishes - 1st complaint is a Verbal Written - 2,,0 complaint within 60 days of Verbal results in a Written warning Suspension - 3 n complaint within 90 days of Written results in a 2-day suspension Termination - Any complaint after the suspension ... (subject to manager review). No Call / No Show: 1 ,1 occurrence results in a 2-day suspension 2",1 occurrence - Regardless how long after suspension results in termination Insubordination: (1st Offense could lead to immediate termination): Written - 151 Offense Suspension - 2-day - 2-J Offense - Regardless how long after written Termination - 3N Offense - Regardless how long after suspension NOTE: Management reserves the right to change, amend and/or add to this document at any time. This document serves as a disciplinary guide and is intended not intended to replace or supersede any information contained in the CPS Employee Handbook. There may be other company violations/infractions that are not mentioned in this memo. OPEN DOOR POLICY Central Parking System believes that for corn nunication to be effective, it has to be two-way. That's why we work hard to remove any obstacles. Effective workplace communication means that a healthy environment exists between employees and management to openly talk about work issues, safety concerns or employment conditions. This is integral to our busi- ness. The tools of our policy consist of five communication "channels": • Our policy requires managers and supervisors to invite, listen and respond to comments, concerns or problems employees may have. • An Alert-line, a 24-hour toll-free telephone number. puts employees in touch with an independent external company so they can voice their concerns or complaints. • Employee Meetings are required at least monthly. • The Employee Suggestion Program encourages our people to submit ideas and recommendations to the office. which will ultimately result in improved operations, service or p-ofits. A small prize is awarded to the contest winners. • A formal Complaint Procedure enables employees to escalate issues to the General Manager, Regional Manager or Senior Vice President. The procedure is monitored by Corporate Human Resources tc assure a timely response. 25A-114 0 z 7c v ZZ ai J w Q I... Cc y 1- } Z y W Q FINANCIAL RESPONSIBILITY • r?5?r,„ • • • i • • • • 0 • 0041 i • ? o • 14 INSIDE THIS SECTION FINANCIAL CAPACITY AUDITED FINANCIAL STATEMENT (ENCLOSED AS AN EXHIBIT) 25A-115 SECTION 8- FINANCIAL RESPONSIBILITY (CAPACITY) DEMONSTRATED FINANCIAL CAPACITY Central Parking is a wholly owned subsidiary of Standard Parking Corporation. Standard Parking Corporation, a publicly traded company (NASDAQ:STAN), after the successful merger with Central Parking presently operates approximately 4,400 parking facilities and municipal on-street contracts throughout the United States and Canada. Accordingly, our financial statements are public information. Standard Parking Corporation's most recent audited financial statements are being submitted in a separate sealed envelope as an exhibit and are also available from our web site. Outstanding loans/debts are described in the financial statements. Moreover, as a public company, we are subject to stringent requirements of the SEC and the Sarbanes-Oxley Act, which gives the County a sound basis for receiving the highest possible level of accountability. Finally, we manage parking facilities in properties of all kinds (municipal, hospital, university, office. mixed-use, retail, and residential, sports stadium, special event, airport. and commercial). As a combined company, Central and Standard Parking also employs more than 26,000 employees and collects more than $2 billion in annual revenues on behalf of its clients. In total, we oversee more than two million parking spaces in over 335 cities. Therefore, we feel absolutely confident we have the ability to perform any financial obligations the City of Santa Ana has outlined in the scope of services. Page 2 25A-116 CITY OF SANTA ANA COMMUNITY DEVELOPMENT AGENCY REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGEMENT SERVICES PROPOSERS STATEMENT and PROPOSAL FEE SCHEDULE EXHIBIT B Certification - I certify that I have read, understand and agree to the terms and conditions of this Request for Proposals. I have examined the Scope of Services (Exhibit A) and am familiar with the scope of work locations. I am familiar with all the existing conditions and limitation that may impact work requests. I understand and agree that I am responsible for reporting any errors, omissions or discrepancies to the City for clarification prior to the submission of my proposal. LINE DESCRIPTION MONTHLY FFF 1 PARKING STRUCTURE A $675 2 PARKING STRUCTURE B $675 3 PARKING STRUCTURE C $675 4 PARKING STRUCTURE D $675 5 SURFACE LOT 1 $300 Total Monthly Fee (Add Lines 1 and 5): $3,000 L)DITIONAL: Hourly fee for additional cashiers, parking attendants or other staff when required/re uested. $19/HOUR CENTRAL PARKING SYSTEM, INC. LEGAL NAME OF COMPANY PHONE: (714) 751-2855 FAX: (714) 751-3650 PHONE AND FAX NUMBER 3420 BRISTOL STREET. SUITE 225, COSTA MESA, CA 92626 BUSINESS ADDRESS MUHAMMAD MANSOOR PRINTED NAME OF AUTORIZED AGENT 12/18/12 In REGIONAL MANAGER TITLE rking.com Ur AU I HURIZED AGENT 62-07895) 10 DATE E-MAIL ADDRESS rt:1JcrcHL Iv IvunntstK (R- AF'l-LIVABLE) CONTRACTOR LICENSE NUMBER (IF APPLICABLE) i nw rumor mua 1 ct wmrLt I to ANU INCLUDED WITH THE PROPOSAL. PROPOSALS THAT DO NOT CONTAIN THIS FORM WILL BE CONSIDERED NON-RESPONSIVE City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 32 25A-117 EXHIBIT C ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY AND BUSINESS AUTOMOBILE POLICIES Insurance Company National Union Fire Ins. C. o Pittsburgh PA This endorsement modifies such insurance as is afforded by the provisions of Policy # GL 2449561 & CA 3506417 relating to the following: The City of Santa Ana, 20 Civic Center Plaza M-25, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except'after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza M-25, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective 07%01/12 , this endorsement form as part of Policy # GL 2449561 and CA 3506417 Issued to Central Parking Corporation Name Insured Endorsement will be signed upon execution of contract Countersigned by: Authorized Representative City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 33 25A-118 EXHIBIT D CITY OF SANTA ANA COMMUNITY DEVELOPMENT REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGEMENT SERVICES REFERENCES AND RELEVANT WORK HISTORY THIS SHEET MUST BE COMPLETED IN FULL AND RETURNED WITH OFFEROR'S PROPO List and describe fully the contracts performed by your firm which demonstrate your ability to provide the supplies, equipment or services included in the scope of the proposal specifications. Attach additional naaes if required for additional references. The City reserves the right to contact each of the references listed for additional information regarding your firm's qualifications. Reference No. 1 Customer Name: City of Anaheim Contract Individual: Mike Uren Address: 800 W. Katella Avenue Phone Number: (714) 765-8930 Anaheim, CA 92802 Facsimile Number: (714) 765-8965 Contract Amount: _$10 Million (Estimated) Year: 11/1/2008 - 10/31/2013 Description of supplies, equipment, or services provided: Parking Management Services Anaheim Hilton parking structure with 1,400 spaces. Shared use facility between Hilton & Anaheim Convention Ct. eference No. 2 Customer Name: Anaheim R.D.A./ City of Anaheim Contract Individual: Christine Long Address: 201 S. Anaheim Blvd. Phone Number: (714) 765-4324 Suite 1003, Anaheim, CA 92805 Facsimile Number: (714) 765-4313 Contract Amount: $6.25 Million Year: 2/1/2010 - 1/31/2015 Description of supp lies, equipment, or services provided : Parking Manag ement Services 5 parking structures with 2.500 spaces Turn key parking management and traffic control services Reference No 3 . Customer Name: The Offices of South Coast Plaza Contract Individual: Nancy Miller Address: 650 Town Center Dr., Suite 930 Phone Number: (714) 435-2103 Costa Mesa, CA 92626 Facsimile Number: (714) 668-0972 Contract Amount: $4.5 Million Annually Year: 11/1/1995 - No End Date -)escription of supplies, equipment, or services provided: Parking Management Services - 4 parking structures, 1 surface lot and valet services. 4 200 spaces. 35 emplovees. City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Page 34 25A-119 EXHIBIT D CITY OF SANTA ANA COMMUNITY DEVELOPMENT REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGEMENT SERVICES REFERENCES AND RELEVANT WORK HISTORY BE COMPLETED IN FULL AND RETURNED WITH OFFEROR'S PROPOSAL List and describe fully the contracts performed by your firm which demonstrate your ability to provide the supplies, equipment or services included in the scope of the proposal specifications. Attach additional pages if reauired for additional references. The City reserves the right to contact each of the references listed for additional information regarding your firm's qualifications. Reference No. 4 Customer Name: City of Riverside Contract Individual: Arlene Armendariz Address: 3900 Main Street Phone Number: 1951) 836-5953 Riverside, CA 92522 Facsimile Number: (951) 826-5542 Contract Amount: $5 Million Year: 7/1/2011 - 6/30/2016 Description of supplies, equipment, or services provided: Parking Management Services - 5 garages 18 surface lots with 1480 Spaces and 982 On Street Metered Spaces (825 multi-spaces and 157 sinale spaces) Qeference No. 5 Customer Name Address: City of Long Beach . Contract Individual: David Roseman 333 W. Ocean Boulevard Phone Number: (562) 570-6665 Contract Amount Long Beach, CA 90802 Facsimile Number: _$38 Million Year: on of supplies, equipment, or services Reference No. 6 _(562) 570-7161 4/11/2007 - 12/31/2017 (renewed 1113) Customer Name: City of Newport Beach Contract Individual: Evelyn Tseng Address: 3300 Newport Blvd. Phone Number: (949) 644-3153 Newport Beach, CA 92663 Facsimile Number: (949) 644-3073 Contract Amount: _$21 Million Year: 4/1/2011 - 3/31/2018 Description of supplies, equipment, or services provided: On Street Parkin Management and Enforcement Services. 2.700 total spaces. 1,325 spaces are controlled by IPS single space smart meters City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Pa e 34 25A-120 EXHIBIT D CITY OF SANTA ANA COMMUNITY DEVELOPMENT REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGEMENT SERVICES REFERENCES AND RELEVANT WORK HISTORY THIS SHEET MUST BE COMPLETED IN FULL AND RETURNED WITH OFFFROR'S PROPO List and describe fully the contracts performed by your firm which demonstrate your ability to provide the supplies, equipment or services included in the scope of the proposal specifications. Attach additional gages if reauired for additional references. The City reserves the right to contact each of the references listed for additional information regarding your firm's qualifications. Reference No. 7 Customer Name: City of Santa Ana Contract Individual: Address: 60 Civic Center Plaza Phone Number: Santa Ana, CA 92702 Facsimile Number: Contract Amount: $410,548 annually Year: Description of supplies, equipment, or services provided: Parkinq Enforce "arkina Enforcement under six City Municipal Codes including Street Sweep4n Reference No. 8 Commander Doug McGeachv (714) 245-8051 8/1/2012 - 7/31/2014 (+3 two year ext) ment Services a -Enforcement. Customer Name: City of Santa Monica Contract Individual: Frank Ching Address: P.O. Box 220 Phone Number: (310) 458-8299 Santa Monica, CA 90407 Facsimile Number: (310) 451-2420 Contract Amount: $35 Million Year: 9/1/2009 - No End Date Description of supplies, equipment, or services provided: Parking Manag ement Services Parking Management of all City Parking Assets with 15,00 0 spaces. Reference No. 9 Customer Name: City of Carson Contract Individual: Ken McKav Address: 701 E. Carson Street Phone Number: (310) 830-7600 Ext. 1605 Carson, CA 90749 Facsimile Number: Contract Amount: $338.000 Year: 09/01/2012 - 8/30/2015 Description of supplies, equipment, or services provided: Buildinq Securitv Services City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Pa e 34 254-121 EXHIBIT D CITY OF SANTA ANA COMMUNITY DEVELOPMENT REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGEMENT SERVICES REFERENCES AND RELEVANT WORK HISTORY S SHEET MUST BE COMPLETED IN FULL AND RETURNED WITH OFFEROR'S PROPO List and describe fully the contracts performed by your firm which demonstrate your ability to provide the supplies, equipment or services included in the scope of the proposal specifications. Attach additional naa s if reauired for additional references. The City reserves the right to contact each of the references listed for additional information regarding your firm's qualifications. Reference No.10 Customer Name: The Toll Roads of Orange County Contract Individual: Steven Loughry Address: 125 Pacifica. Suite: 100 Phone Number: (949) 790-7749 Irvine CA 92618 Facsimile Number: (949) 790-7818 Contract Amount: 387 Million Year: 5/1/2003 - 06/30/2014 Description of supplies, equipment, or services provided: Cash Toll Collection Services Annually process approx. 9 million transactions and $32 million in cash tolls 93 Full & Part Time employees Reference No.11 Customer Name: Contract Individual: Address: Phone Number: Facsimile Number: Contract Amount: Year: Description of supplies, equipment, or services provided: Reference No. 12 Customer Name: Contract Individual: Address: Phone Number: Facsimile Number: Contract Amount: Year: Description of supplies, equipment, or services provided: City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services 25A3122 TO BE INCLUDED IN PROPOSAL EXHIBIT E CITY OF SANTA ANA COMMUNITY DEVELOPMENT REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGEMENT SERVICES PROPOSAL & CONTRACT AGREEMENT PROPOSER'S STATEMENT Proposer understands and agrees that this written RFP (or any part thereof specifically designated and accepted by the City of Santa Ana, hereinafter City) shall constitute the entire agreement between proposer and the City only after it has been accepted by the City Council, endorsed by the Clerk of the Council with her signature and official seal noting here on the action of approval of the Council, signed by the Executive Director or his duly authorized agent, and signed by the City Attorney, denoting her approval of the form of this document, and its execution, and when it or an exact copy of it has been either delivered to proposer or deposited with the United States Postal Service properly addressed to the proposer with the correct postage affixed thereto. Proposer further agrees that upon delivery (as defined above) of the accepted agreement he/she will furnish City all required bonds and certificates of liability insurance within ten (10) days (excluding Saturdays, Sundays and City's legal holidays), or the funds, check, draft, or proposer's bond substituted in lieu thereof accompanying this proposal shall become the property of the City and shall be considered as payment of damages due to the delay and other causes suffered by City because of the failure to enter into an Agreement and/or furnish the necessary bonds and because it is distinctly agreed that the proof of damages actually suffered by City is difficult to ascertain; otherwise said funds, check drafts, or proposer's bond substituted in lieu thereof shall be returned to the indersigned. Proposer understands that a proposal is required for the entire work, that the estimated quantities set forth in the RFP schedule are solely for the purpose of comparing proposals, and that final compensation under the contract will be based upon the actual quantities of work satisfactorily completed. All terms contained in the Specifications, the Certification of Non-Discrimination by Contractors, and the Workers' Compensation Insurance Certificate are to be incorporated by reference into this Agreement and are made specifically as part of this RFP. CENTRAL PARKING SYSTEM INC. FIRM SIGN (` 1, `? ` L._ MUHAMMAD MANSOOR HNV t'MIN i to NAMt REGIONAL MANAGER TITLE 01/02/2013 DATE City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services Pa 35 25A-123 TO BE INCLUDED IN PROPOSAL EXHIBIT F CITY OF SANTA ANA COMMUNITY DEVELOPMENT REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGEMENT SERVICES PROPOSAL AND CONTRACT AGREEMENT CERTIFICATION OF NONDISCRIMINATION BY CONTRACTOR The undersigned Contractor or corporate officer, during the performance of this contract, certifies as follows: The Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Contractor shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without, regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. 2. The Contractor shall, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. 3. The Contractor shall send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 4. The Contractor shall comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. 5. The Contractor shall furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his/her books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation, to ascertain compliance with such rules, regulations, and orders. 6. In the event of the Contractor's non-compliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, the contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction/services contracts in accordance with procedures authorized in Execution Order 11246 of September 24, 1965,and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulations, or order of the Secretary of Labor, or as otherwise provided by law. 7. The Contractor shall include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontract or purchase order as the administering agency may direct as means of enforcing such provisions, including sanctions for City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services 26Ae 136 24 TO BE INCLUDED IN PROPOSAL EXHIBIT F noncompliance; provided, however, that in the event the Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the 8. Contractor may request that the United States enter into such litigation to protect the interests of the United States. 9. Pursuant to California Labor Code Section 1735, as added by Chapter 643 Stats. 1039, and as amended, No discrimination shall be made in the employment of persons because of race, religious creed, color national origin, ancestry, physical handicaps, mental condition, marital status, or sex of such persons, except as provided in Section 1420, and any Contractor violating this Section is subject to all the penalties imposed for a violation of the Chapter. CENTRAL PARKING SYSTEM INC. FIRM (? SIG I`- MUHAMMAD MANSOOR PRINTED NAME 'EGIONAL MANAGER TITLE 01/02/2013 DATE City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services gaae A3125 20 TO BE INCLUDED IN PROPOSAL EXHIBIT G CITY OF SANTA ANA COMMUNITY DEVELOPMENT REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANAGEMENT SERVICES NON-COLLUSION AFFIDAVIT CITY OF SANTA ANA PROPOSAL AND CONTRACT AGREEMENT NON-COLLUSION AFFIDAVIT (Title 23 United States Code Section 112 and Public Contract Code Section 7106) To the CITY OF SANTA ANA COMMUNITY DEVELOPMENT AGENCY In accordance with Title 23 United States Code Section 112 and Public Contract Code 7106 the PROPOSER declares that the bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that the PROPOSER has not directly or indirectly induced or solicited any other PROPOSER to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived or agreed with any PROPOSER or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the PROPOSER has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid )rice of the PROPOSER or any PROPOSER, or to fix any overhead, profit, or cost element of the bid price, or A that of any other PROPOSER, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all statements contained in the bid are true; and, further, that the PROPOSER has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid. Note: The above Non-collusion Affidavit. is part of the Proposal. Signing this Proposal on the signature portion thereof shall also constitute signature of this Non-collusion Affidavit. PROPOSERS are cautioned that making a false certification may subject the certifier to criminal prosecution. State of California County of ORANGE Subscribed and sworn to ( who appeared before me. affirmed) before c?' J?f?rLy day of DEC-EibtBLR, 2011 by proved to Fr on the basis of satisfactory evidence to be the persol y u 'c Signature HARVEY GONZALEZ Commission # 1878398 i Notary Public - California z Orange County D. AA Comm. Expires Jan 29, 2014 Notary Public Se-al City of Santa Ana Community Development Agency Request for Proposals for Parking Operations and Management Services 20.P 38 %f r 2% 126 Public Works Department May 3, 2012 To Whom It May Concern: This letter is to advise you of our experience with Central Parking as the City of Riverside parking operator. } Central Parking System was awarded the contract to manage all of City of Riverside parking facilities in July 2011. At the time, the City of Riverside was looking for a single source operator to manage their downtown parking facilities. The parking facilities consists of a mixture of off-street and on-street parking facilities with 4 parking structures, 19 surface lots, 79 Pay-by-space machines, and 154 on street single space meters. These facilities serve the tenants, employees and visitors of City Hall, the Courthouse, downtown office buildings and area businesses. Due to the demand and utilization of these facilities by multiple high demand users, it was crucial for the City to locate an operator with the highest aptitude for efficiency and customer service. Central Parking has proven to be a perfect fit. Their team operates with a sense of urgency and with a true owner's perspective that is hard to find in the industry. We have found their management team to be professional, proactive and one that possesses industry knowledge and expertise. They are extremely responsive to our needs and are committed to providing excellent service. During the first ten months, Central provided a seamless transition while ensuring a smooth operation and maintaining the highest level of customer service. Their close supervision and strict operational controls have also helped the City maximize their parking revenues. Central has worked very closely with the City on all areas of parking and security, in addition to helping the City with strategic planning of all special events. In summary, my overall experience with Central Parking has been very positive and we are actively pursuing new opportunities with a parking focus due to our comfort level with Central Parking as both an operator and a partner. I happily endorse Central's quality personnel and their results. Please feel free to contact me at (951) 826-5953 should you need any additional information regarding our partnership with Central Parking System. Sinccrety, - Arlene Armendariz Public Parking Services Supervisor Public Works Department City of Riverside 3900 Main Street 0 Riverside, CA 92522 0 951.826.5341 • 2SA 512 7,riversidem.gov rihe Offices of South Coast Plaza ()RANGF C()I % T Y ' S (.rNTRAL B I I S I N F S S 1)1STRICT Stanley D. Taeger Director, Office Property Management The Offices of South Coast Plaza 650 Town Center Dr. #930 Costa Mesa, CA. 92626 To Whom It May Concern: The Offices of South Coast Plaza has been under contract with Central Parking System since 1995. The contract consists of the daily operations of four office buildings, The Westin Hotel, The Orange County Performing Arts Center, and The South Coast Repertory theatre. The project has four garages and two surface lots with approximately 30,000 visitors monthly and 3,000 building employees. Central Parking System provides the traffic directors, event staff, cashiers and valets for the various operations in the project. The operation runs 18 hours per day, seven days per week. The Offices of South Coast Plaza places great emphasis on quality customer service in all areas of its operations. Therefore, this aspect of the contract has been a focal point between The Offices of South Coast Plaza and Central Parking System. They have met or exceeded our expectations on every level and have met all staffing requirements on a continuous basis. We are pleased to say that we have had a very positive relationship with Central Parking System. Their staff is highly professional and very responsive to our needs at any point in time. Based on our experience, we feel there is a sincere commitment to a quality level of service throughout the organization. Please feel free to contact me at (714) 435-2100 with specific questions. Sincerely, Stanley of Taeger Director; Office Property Management The Offices of South Coast Plaza (+i(1 Town Cenlel 1)l1kC •,`" t Oil) I!!???-,.y6Jy? 19??s;1. (:alil?)tr1i.1 92020 wyralY ANAHEIM Michael Uren Facility Services/Parking Manager Anaheim Convention Center 800 W. Katella Avenue Anaheim, CA 92802 To Whom It May Concern: Please cake under advisement this letter of support for Central Parking Systcm.. as you review and consider their proposal for Parking Management Services. It is with great pleasure that I extend my support for Central Parking. Since November 1, 2008, Central has managed the Anaheim Ifilton Parking Facility also known as CarPark- with much success. This parking facility services both the Hilton Anaheim and the Anaheim Convention Center and presents a challenging operation. During their tenure. Central Parking has maximized the profits for the City by identifying revenue collection loopholes and eliminating them through tighter controls, while keeping operating expenses well under budget. Central Parking's management has been extremely responsive to the City's needs. They have identified all major issues and resolved them successfully. Their customer service is above reproach, and their staff is always professional and. courteous. In my experience. Central demonstrates consistently ethical conduct and passion for their work. i enthusiastically recommend Central Parking System for the management of your parking operation(s). Please don't hesitate to contact me should you require further details. Sincerely, / t-ic-liae wren Facilities Services/Parking Manager Anaheim Convention Center 80C: WEST KATELLA AVE. ANAHEIM, CA 2? /?TEl E 714-76',8950 s FAQ: 714-765-8965 Re: Letter of Recommendation for Central Parking System To whom it may concern: Central Parking System (CPS) was awarded the on-street parking operations contract for the City of Newport Beach, California after an extensive selection and interview process. They are responsible for all aspects of the 2,600+ parking space system including collections, maintenance and enforcement. They have exceeded my expectations in every facet of their operation. Most notably, ® Revenue Uplift & Reporting - CPS has consistently run 30% over the previous year's numbers. We attribute this to their diligence in providing an operable system, their recommendation and installation of the new meters and infrastructure as well as consistent enforcement. They have also provided a robust reporting package that allows us to accurately track our partnership on a daily basis. Community Involvement - They engaged immediately in what has become an ongoing community and stakeholders outreach program. They have attended our local community meetings including our Business Improvement District meetings. They have also provided a customer service hotline for information and dispute resolution. c Transition & Professionalism - The CPS management team as well as the transition and training teams have been instrumental in the success of our program in Newport Beach. They were asked to transition with only a 30-day timeline for the opening of a turnkey Municipal On-Street Contract. Central Parking managed to complete the tasks at hand, all while installing our new infrastructure of over 1,600 metered spaces to Single Space Credit Card Meters (IPS) as well as Pay-Stations (Digital Payment Technologies). Central's commitment to excellence and customer service, and their comprehensive plan of operation distinguished them from their peers. Their performance and the success of the transition has solidified that perception from our citizens to our city council. Please feel free to contact me directly should you have any questicns. I can be reached at 949.644.3123 or via email at -rnccrancr{a,newoc;tr30acn :a.gov , Kind Regards Tracy McCraner Director of Finance 25A-130 :?h?Tr??„_ln AAA, riot .rLs roreSt 1010186.729 October 18, 2010 To Whom It May Concern: This letter is to advise you of our relationship with Central Parking Systems (CPS). As one of the major public toll road operators in California, USA, the Transportation Corridor Agencies (T'CA) was established in 1986 to design, finance, construct and operate modern toll roads in the Orange County area. "Today, the TCA operates a system of 1 miles of toll corridors and processes 79 million toll transactions each year. These tolls have a total value of approximately $179,000.000. Beginning in July 2003, CPS h?:gan to provide toll plaza staffing and management services for the TC,N, CPS has about 93 full and part-time employees assigned to the TCA toll road project. During Fiscal Year 2010, CPS successfully processed about 9.1 million transactions worth $30 million in cash tolls for the agencies. For over seven years, CPS has been providing, excellent service to TCA and its toll customers. CI'S is responsive to changes requested by the agency and they are very committed to providing the best customer service possible. Please let me knew if you should need any- further information about our contract with CPS. Sincerely, Jnes T. Gallagher } Chief Toll Operations Officer 25A-131 25A-132 EXHIBIT 4 Central PARKIN G February 28, 2013 The Honorable Mayor and City Council City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 Central Parking 3420 Bristol Street Suite 225 Costa Mesa, CA 92626 Phone: 714 751 2855 Fax: 714 751 3650 Website: www.parking.com RE: RFP 12-060 - Employee Retention Plan, Community Outreach Program and Transition Plan Dear Mayor Pulido and Council members: This letter is to inform you that it is Central Parking's commitment and intent to retain as many existing employees as possible. We will ensure that all employees go through our entire hiring process which includes submitting an application, participating in an interview and passing a background and drug screen. Immediately following the award of the contract, our plan is to conduct a group meeting to provide a meet and greet opportunity for the staff and Central Parking management. In this group meeting, we will go over in depth details of our company and the benefits of working for a nationally recognized organization. Teamsters Local 911 currently represents the employees working at the City of Santa Ana Parking Facilities. Since 1990, Central Parking has had an excellent relationship with Teamsters Local Union 911. We are part of a Master Agreement between Teamsters 911 and United Parking Employers Council (UPEC). Our employee work force is over 500 employees in Southern California with the largest employee base that is recognized by this labor union working at LAX Airport. Central Parking has transitioned several municipalities including over 100 employees in Santa Monica and 800+ at LAX with the intent to retain as many existing employees as possible and were pleased with our retention of 80 - 90% of the original employees. Having well trained employees with local knowledge that have successfully passed our hiring process provides a win/win for the entire portfolio and to this end we endeavor to qualify and hire as many existing parking employees as possible during the transition. Our proposed plan for community outreach is to meet with all stakeholders, including downtown retail, residential and business associations to hear their concerns and to provide viable solutions to their parking and traffic management needs. We have successfully maintained excellent relationships with all downtown area associations in cities of Long Beach, Santa Monica, Anaheim and Riverside amongst others and we are confident that our proposed approach to a successful parking plan will serve the needs of all groups successfully and most efficiently. We will be in attendance at the City Council meeting on March 4, 2013 to answer any questions. We hope to receive your approval at this meeting so we could begin the transition shortly thereafter. We are hoping for a 30 day transition to allow for a seamless change over and look forward to implementing our plan and take over operations effective April 1, 2013. 25A-133 Central PARKIN G Central Parking 3420 Bristol Street Suite 225 Costa Mesa, CA 92626 Phone: 714 751 2855 Fax: 714 751 3650 Website: www.parking.com Attached to this letter is a brief summary and highlights of our proposal. Please do not hesitate to contact me should you need additional information. Sincerely, A. Mansoor ?Luhanmhd eneral *anager Cc: Maria D. Huizar, Clerk of the Council Kevin O'Rourke, Interim City Manager Nancy T. Edwards, Interim Executive Director for Community Development Agency Gabriela P. Lomeli, Redevelopment Project Manager I 25A-134 Central P A R K I N G HIGHLIGHTS OF OUR PROPOSAL CENTRAL PARKING - LEADING THE INDUSTRY • Cutting Edge Initiatives Through New Technology ? Substantial Buying Leverage - Preferred Pricing on Equipment ? Location Central - published parking rates online at no cost to clients ? Web Marketing - innovator in driving business to locations ? Mobile Apps - one of the pioneers in development of mobile based applications ? Web based client reporting - "WebVision" ? ParkCentral - Monthly Parking, Pay Online ? Customer Care Call Center, Toll Free Hotline - 1-877-717-0004. Web based Customer Response System "CRS" • Single Source of Services ? Full Service consultants at no additional cost to our clients ? SP Security Services ? SP Garage Maintenance Division ? SP Sign Department ? Parking Design and Graphics Group SUPERIOR CUSTOMER SERVICE • Careful Selection of Qualified and Quality Staff • Pre-Employment Screening and Hiring Procedures ? Pangea - Online Application Process. All qualified applicants must pass a criminal background check and drug test. ? Comprehensive Employee Orientation and Training ? Customer Service Training; "C.A.R.E" & "First Impressions" ? Site Specific Training ? Proper Training to handle Customer Complaints • Mystery Driver Program / Customer Surveys ? Locations are targeted for customer service levels and integrity of cashiers ? Sample Survey ¦ "How are we doing?" ¦ Short and Simple Survey - How was their latest experience in the facility? What is it they like to see changed? What could we do better? ¦ To encourage greater participation, offer prizes through a raffle/draw 25A-135 DEPTH OF SUPPORT • Local Team with National Support ? Regional Office based out of Costa Mesa ? Senior Operations Manager on site weekly ? Regional Manager - hands on with each project ? Weekly meetings with client ? Subject matter experts - leadership team STRICT ACCOUNTING AND CASH CONTROLS • Financial Central ? Sarbanes-Oxley Act and PCVDSS compliant ? Separation of duties ? Parking Audits conducted by Senior Manager ? Revenue Control Scorecard Report - measurable standards for all facets of the parking operation ? TrinTech - Internal audit reporting system for all daily revenue, reconciled by corporate auditors daily. Discrepancies are flagged and Regional Manager is notified immediately EXPERIENCE • Current Local Municipal Clients - Highlights of our Service ? City of Carson, Serving since February 2002 ¦ Building and City Hall Security Services ? City of Long Beach, Serving since April 2007 ¦ Coordinated new equipment purchase in downtown parking facilities. Current project to upgrade Aquarium garage equipment ? Los Angeles Airport - LAX, Serving since June 2007 ? City of Anaheim / Hilton Anaheim, Serving since November 2008 ¦ Coordinated 1.5 Million Dollar Renovation of the parking structure ? City of Santa Monica, Serving since June 2009 ¦ Coordinate multiple special events throughout the year ? City of Anaheim / Redevelopment Agency, Serving since February 2010 ¦ Coordinated RFP for new equipment, installed SkiData ? City of Newport Beach, Serving since May 2011 ¦ Facilitated the installation of over 1300 new parking meters ? City of Riverside, Serving since July 2011 ¦ Facilitated the RFP process and installation of new equipment at all City parking garages. ? City of Santa Ana / Police Department, Serving since September 2012 ¦ Parking Enforcement Services 25A-136 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2013 TITLE: EXTEND TWO FUNDING AGREEMENTS WITH SOUTHERN CALIFORNIA EDISON: THE SANTA ANA ENERGY LEADER PARTNERSHIP AND THE STRATEGIC PLAN STRATEGIES CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1" Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached amendments to agreements with Southern California Edison, subject to non-substantive changes approved by the City Manager and City Attorney, to extend the Santa Ana Energy Leader Partnership and Strategic Plan Strategies funding agreements. DISCUSSION The California Public Utilities Commission (CPUC) authorized Southern California Edison (SCE), in partnership with cities, to deliver energy efficiency programs to utility customers in SCE's service area. The City was awarded a partnership with Edison for 2010-2012 to jointly deliver energy efficiency information, training, and materials that would benefit Santa Ana customers. The partnership also optimizes the City's opportunities for achieving short- and long-term energy savings and reduced utility bills, and assists City residents and businesses in understanding, managing, and reducing energy use and costs. The term of the Santa Ana Leader Partnership agreement ended December 31, 2012. The CPUC also authorized SCE to provide funding for energy efficiency strategic plan activities in support of the California Energy Efficiency Strategic Plan. Only those cities that have a partnership with SCE to deliver energy efficiency programs were eligible. The City was awarded Strategic Plan Strategies funding July 18, 2011, to perform a Green House Gas baseline inventory and energy analysis, an energy chapter for a Climate Action Plan, California Green Building and LEED certification training, and an Energy and Sustainability Consultant to coordinate and assist in implementation of these tasks. The term of the Strategic Plan Strategies agreement also ended December 31, 2012. The CPUC recently authorized SCE to extend the Santa Ana Leader Partnership agreement to June 30, 2015, and to extend the Strategic Plan Strategies Funding agreement to December 31, 2014. This will enable ongoing energy efficiency programming through the partnership and provide additional time to complete the scope of work in the Strategic Plan Strategies agreement. For both agreements, this is an extension of time only. 25B-1 Amendments with SCE to Extend Santa Ana Energy Leader Partnership Funding March 18, 2013 Page 2 ENVIRONMENTAL IMPACT There is no environmental impact associated with extending the agreements with SCE. However, continued implementation of energy efficiency programs and strategies will enhance our environment by improving air quality, reducing pollution, and conserving natural resources. FISCAL IMPACT There is no fiscal impact associated with extending the agreements with SCE. Raul Godinez II, Executive Director Public Works Agency RG/CLK Exhibit: First Amendment to the Energy Leader Partnership Agreement First Amendment to the Strategic Plan Implementation Contract 25B-2 FIRST AMENDMENT THIS FIRST AMENDMENT ("FIRST AMENDMENT") TO THE AGREEMENT TO JOINTLY DELIVER THE 2010-2012 ENERGY LEADER PARTNERSHIP PROGRAM dated December 7, 2009 (the "Agreement") is effective as of January 1, 2013 (the "First Amendment Effective Date") by and among SOUTHERN CALIFORNIA EDISON COMPANY ("SCE") AND THE CITY OF SANTA ANA ("SANTA ANA"). Terms not otherwise defined herein shall have the meaning ascribed to them in the Agreement. SCE may be referred to herein as the "Utility." SCE and Santa Ana may be referred to herein individually as a "Party" or collectively as the "Parties." RECITALS WHEREAS, the Parties previously executed the Agreement to Jointly Deliver the 2010-2012 ENERGY LEADER PARTNERSHIP PROGRAM effective January 1, 2010 ( hereinafter referred to as the "2010-2012 Program"); WHEREAS, on May 18, 2012, the Commission issued a Decision Providing Guidance on 2013- 2014 Energy Efficiency Portfolios and 2012 Marketing, Education, and Outreach ("Final Guidance Decision") guiding the Utility to continue the ENERGY LEADER PARTNERSHIP PROGRAM, which included the City of Santa Ana Energy Leader Partnership Program, through a two year 2013-2014 transition period (hereinafter referred to as the "2013-2014 Program"); WHEREAS, on July 2, 2012, the Utility submitted its application ("2013-2014 Application") for the implementation of energy efficiency programs to be delivered to California utility customers for the years 2013 through 2014, which included the 2013-2014 Program, a continuation of the 2010-2012 Program; WHEREAS, on November 15, 2012, the Commission issued a Final Decision approving the 2013-2014 Application as submitted ("Final Decision"), thereby approving continuation of the Energy Efficiency Partnership Programs, which includes the 2013-2014 Program, and the Parties desire to extend the Agreement through 2014 under the terms and conditions set forth in the Agreement, except as otherwise provided in this First Amendment; and WHEREAS, the Parties desire to further amend the Agreement as necessary to provide an authorized budget for the 2013-2014 Program and to update the Agreement as required to reflect the extended 2013-2014 Program cycle. NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Except as provided herein, and to the extent applicable, any reference in the Agreement to the "2010- 2012 Program" shall hereby include both the 2010-2012 Program and the 2013-2014 Program. 2. Section 1.13 of the Agreement is hereby deleted in its entirety and replaced with the following: 1.13 PIP or Program Implementation Plan: The most recent Commission decision approved and publicly available plans for implementing the Program in each Utility's service territory 3. Section 3.2 of the Agreement is hereby deleted in its entirety and replaced with the following: EXHIBIT 1 25B-3 3.2. Energy Leader Partnership Level. The Program offers a tiered Incentive structure through achievement of four separate levels of participation: "Valued Partner," "Silver," "Gold" and "Platinum." The City will enter the Program at a level of participation which has been determined by the City's past participation in SCE energy efficiency and demand response programs both at the city level and at the community level. Exhibit A further explains each level and the energy savings requirements for moving to the next Energy Leader Partnership level. SCE will track the City's performance under this Agreement against the goals and objectives set forth herein, and will notify the City when it has achieved the next incentive level. 4. Section 11 of the Agreement is hereby deleted in its entirety and replaced with the following: 11. END DATE FOR PROGRAM AND ADMINISTRATIVE ACTIVITIES Unless this Agreement is terminated pursuant to Section 25 below, or unless otherwise agreed to by the Parties or so ordered by the Commission, the Parties shall complete all Program Administrative activities (as defined in the PIP) and all reporting requirements by no later than March 31, 2015, and all Direct Implementation and Marketing & Outreach activities by no later than December 31, 2014. 5. Section 12 of the Agreement is hereby deleted in its entirety and replaced with the following: 12. FINAL INVOICES The City must submit final invoices to SCE no later than March 31, 2015. 6. Section 25.1 of the Agreement is hereby deleted in its entirety and replaced with the following: 25.1 Term. This Agreement shall be effective as of the Effective Date. Subject to Section 37, the Agreement shall continue in effect until June 30, 2015 unless otherwise terminated in accordance with the provisions of Section 25.2 or 30 below. 7. Section 26 of the Agreement is hereby deleted in its entirety and replaced with the following: 26. WRITTEN NOTICES Any written notice, demand or request required or authorized in connection with this Agreement, shall be deemed properly given if delivered in person or sent by facsimile, nationally recognized overnight courier, or first class mail, postage prepaid, to the address specified below, or to another address specified in writing by a Party as follows: The City: SCE: Public Works Agency Southern California Edison Company City of Santa Ana James Hodge, Program Manager 20 Civic Center Plaza, M-21 1515 Walnut Grove Avenue Santa Ana, CA 92701 Rosemead, CA 91770 Notices shall be deemed received (a) if personally or hand-delivered, upon the date of delivery to the address of the person to receive such notice if delivered before 5:00 p.m. PST (or PDT, as applicable), or otherwise on the Business Day following personal delivery; (b) if mailed, three (3) Business Days after the date the notice is postmarked; (c) if by facsimile, upon electronic confirmation of transmission, followed by telephone notification of transmission by the noticing EXHIBIT 1 25B-4 Party; or (d) if by overnight courier, on the Business Day following delivery to the overnight courier within the time limits set by that courier for next-day delivery. 8. This First Amendment may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall be deemed to be one and the same instrument. 9. Exhibit A (ENERGY LEADER PARTNERSHIP - PROGRAM LEVEL DATA) and Exhibit B (ENERGY LEADER PARTNERSHIP PROGRAM 2010-12 GOALS & PARTNER BUDGET) of the Agreement are hereby deleted in their entirety and replaced with the versions of Exhibit A (ENERGY LEADER PARTNERSHIP - PROGRAM LEVEL) and Exhibit B (ENERGY LEADER PARTNERSHIP PROGRAM 2013-14 GOALS & PARTNER BUDGET FOR SANTA ANA) attached to this First Amendment, which attached versions are incorporated herein by reference and made a part of the Agreement. 10. General. From and after the First Amendment Effective Date, any reference to the Agreement contained in any notice, request, certificate or other instrument, document or agreement shall be deemed to mean the Agreement, as amended by this First Amendment. In the event of any conflict between the Agreement and this First Amendment, this First Amendment shall prevail. All remaining provisions of the Agreement shall remain unchanged and in full force and effect. Each party is fully responsible for ensuring that the person signing this First Amendment on that party's behalf has the requisite legal authority to do so. [SIGNATURES FOLLOW ON NEXT PAGE] EXHIBIT 1 25B-5 IN WITNESS WHEREOF, the Parties hereto have caused this First Amendment to be executed by their duly authorized representatives as of the First Amendment Effective Date. SANTA ANA: ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR KEVIN O'ROURKE Clerk of the Council Interim City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director Public Works Agency SCE: SOUTHERN CALIFORNIA EDISON COMPANY By: Name Printed: Erwin Furukawa Title: Senior Vice President, Customer Service Date: , EXHIBIT I 25B-6 EXHIBIT A ENERGY LEADER PARTNERSHIP - PROGRAM LEVEL Energy Leader Partnership levels are: Valued Partner Level - This level is the entry level for the partner to develop knowledge and establish goals towards the Silver Level. A budget is available for energy savings projects, for marketing, education, and outreach to the community, as well as for technical assistance toward upgrading or retrofitting partners' facilities. SCE's core program incentives will be offered directly to the partner. The partner will be expected to use the marketing and outreach funds to generate verifiable energy savings in their own facilities and in the community and will participate in demand response at a basic level. Valued Level provides the Partner with 3 cents per kWh paid in addition to what is paid to the Partner under SCE's core program. Silver Level - To qualify for this level, the partner demonstrates past participation in SCE energy efficiency programs, develops an energy action plan, sets community and municipal energy reduction goals, targets 25 percent of its facilities to complete energy efficiency upgrades, and participates in demand response. An enhanced incentive is paid at the Silver Level. Silver Level provides the Partner with 6 cents per kWh paid in addition to what is paid to the Partner under SCE's core program. Gold Level - To qualify for this level, the partner demonstrates higher past participation in SCE energy efficiency programs, establishes higher municipal and community program participation and energy savings goals and makes a higher commitment to participate in demand response. Incentive factors are higher for partner facilities' energy efficiency projects. Gold Level provides the Partner with 9 cents per kWh paid in addition to what is paid to the Partner under SCE's core program Platinum Level - To qualify for this level, the partner demonstrates even higher past participation in energy efficiency programs, is innovative and integrates Energy Action Plan policies, ordinances and procedures. All facilities are targeted for energy efficiency upgrades and the partner makes a higher commitment to participate in Demand Response. Incentive factors are highest for Partner facilities' energy efficiency projects and additional incentives are made available for customized community energy efficiency projects. Platinum Level provides the Partner with 12 cents per kWh paid in addition to what is paid to the Partner under SCE's core program. EXHIBIT 1 25B-7 EXHIBIT B ENERGY LEADER PARTNERSHIP PROGRAM 2013-14 GOALS & PARTNER BUDGET FOR SANTA ANA Program Cycle Partner Budget and Goals: Maximum Partner Budget Energy Savings Goal (kWh) Peak Demand Reduction Goal (kW) Total : $421,637 1,257,030 kWh 314 kW Incentive: $221,637 *Non-Incentive: $200,000 *(Marketing & Outreach, Technical Assistance and Direct Implementation) 25EBI81 FIRST AMENDMENT THIS FIRST AMENDMENT ("FIRST AMENDMENT") TO THE CALIFORNIA ENERGY EFFICIENCY STRATEGIC PLAN IMPLEMENTATION CONTRACT dated July 18, 2011 (the "Contract") is effective as of November 1, 2012 (the "First Amendment Effective Date") by and among SOUTHERN CALIFORNIA EDISON COMPANY ("SCE") AND THE CITY OF SANTA ANA ("Implementer"). Terms not otherwise defined herein shall have the meaning ascribed to them in the Contract. RECITALS WHEREAS, the Parties previously executed the Contract for purposes of implementing the 2010- 2012 Santa Ana Strategic Plan Activities Program (hereinafter referred to as the "2010-2012 Program"); WHEREAS, on May 18, 2012, the Commission issued a Decision Providing Guidance on 2013- 2014 Energy Efficiency Portfolios and 2013-2014 Marketing, Education, and Outreach ("Final Guidance Decision") guiding the Utilities to continue the Energy Efficiency Partnership Programs, which included Strategic Plan Activities, through a two year 2013-2014 transition period (hereinafter referred to as the "2013-2014 Program"); WHEREAS, on July 2, 2012, SCE submitted its respective application ("2013-2014 Application") for the implementation of energy efficiency programs to be delivered to California utility customers for the years 2013 through 2014, which included the 2013-2014 Program, a continuation of the 2010-12 Program; WHEREAS, contingent on the adoption by the Commission of a final decision approving the SCE's 2013-2014 Application as submitted ("Final Decision"), the Parties desire to extend the Contract through 2014 under the terms and conditions set forth in the Contract, except as otherwise provided in this First Amendment; WHEREAS, the Parties desire to further amend the Contract as necessary to update the Contract as required to reflect the extended 2013-2014 Program cycle. NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: Except as provided herein, and to the extent applicable, any reference in the Agreement to the "2010-2012 Program" shall hereby include both the 2010-2012 Program and the 2013-2014 Program. 2. Section 18 of the Contract is hereby deleted and replaced with the following: 18. TIME IS OF THE ESSENCE 18.1 Implementer hereby acknowledges that time is of the essence in performing their obligations under this Contract. Failure to comply with milestones and goals stated in this Contract, including, but not limited to those set forth in Exhibit A of this Contract, may constitute a material breach of this Contract, resulting in its termination, payments being withheld, Implementer Budgets being reduced or adjusted, funding redirected to SCE to other programs or 1 of 3 25B-9 partners, or other Program modifications as determined by SCE or as directed by the Commission. All Work must be performed and completed by December 31, 2014. 3. Section 22 of the Agreement is hereby deleted and replaced with the following: 22. TERM 22.1 This Contract shall be effective as of the Effective Date. Unless otherwise terminated in accordance with the provisions of Section 23 below or extended pursuant to Section 22.2 or 22.3, this Contract shall expire at midnight on December 31, 2014; provided however, that all Work and services shall be completed by the dates specified in the Statement of Work. 4. General. From and after the First Amendment Effective Date, any reference to the Contract contained in any notice, request, certificate or other instrument, document or agreement shall be deemed to mean the Contract, as amended by this First Amendment. In the event of any conflict between the Contract and this First Amendment, this First Amendment shall prevail. All remaining provisions of the Contract shall remain unchanged and in full force and effect. Each party is fully responsible for ensuring that the person signing this First Amendment on that party's behalf has the requisite legal authority to do so. [SIGNATURE PAGE FOLLOWS] 2of3 25B-10 IN WITNESS WHEREOF, the Parties hereto have, through their duly authorized representatives, have executed this First Amendment as of the First Amendment Effective Date by. IMPLEMENTER: ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR KEVIN O'ROURKE Clerk of the Council Interim City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director Public Works Agency SCE: SOUTHERN CALIFORNIA EDISON By: Erwin Furukawa Title: Senior Vice President, Customer Service Date: 3 of 3 25B-11 CHANGE ORDER NO.1 This Change Order No. 1 (the "Change Order") is issued pursuant to the CALIFORNIA ENERGY EFFICIENCY STRATEGIC PLAN IMPLEMENTATION CONTRACT dated July 18, 2011 (the "Contract") between THE CITY OF SANTA ANA ("Implementer") and SOUTHERN CALIFORNIA EDISON COMPANY ("SCE") and sets forth certain changes to the Statement of Work ("SOW") executed by Implementer and SCE on July 18, 2011. This Change Order is effective as of November 1, 2012 ("Change Order Effective Date"). Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Contract. The parties agree to modify the SOW as follows: 1. Task 2.A Deliverable(s) table is deleted in its entirety and replaced with the following: Task 2.A - Deliverable(s) Due Date(s) - 1. Report on status of Implementer or Monthly to be completed by Subcontractor to support the Task September 30, 2011 with Invoicing Requirements (see Task 4) 2. Assessment and planning report for conducting No later than March 31, 2012 with the baseline GHG inventory including the energy Invoicing Requirements (see Task 4) savings analysis for the baseline GHG for both the Community and Municipal Operations 3. Draft report on the results of the baseline GHG No later than December 31, 2012 with inventory including the energy savings analysis Invoicing Requirements (see Task 4) for the baseline GHG for both the Community and Municipal Operations 4. Final report on the results of the baseline GHG No later than January 31, 2013 with inventory including the energy savings analysis Invoicing Requirements (see Task 4) for the baseline GHG for both the Community and Municipal Operations 5. Report on dissemination of the baseline GHG No later than March 31, 2013 with inventory and energy savings analysis for the Invoicing Requirements (see Task 4) baseline GHG to the Community 6. Monthly status report Monthly with Invoicing Requirements (see Task 4) 2. Task 2.13 Deliverable(s) table is deleted in its entirety and replaced with the following: Task 2.B - Deliverable(s) Due Date(s) - 1. Assessment and planning report for the No later than March 31, 2012 with development of an energy efficiency chapter in Invoicing Requirements (see Task 4) the climate action plan for the Community and Municipal Operations 2. Draft energy efficiency chapter for the climate No later than March 31, 2013 with action plan for the Community and Municipal Invoicing Requirements (see Task 4) Operations SCE CONFIDENTIAL 1 of 5 25B-12 3. Report on stakeholder input No later than April 30, 2013 with Invoicing Requirements (see Task 4) 4. Final energy efficiency chapter for the climate No later than May 31, 2013 with action plan for the Community and Municipal Invoicing Requirements (see Task 4) Operations 5. Monitoring Framework for the energy efficiency No later than June 30, 2013 with chapter in a climate action plan Invoicing Requirements (see Task 4) 6. Monthly status report Monthly with Invoicing Requirements (see Task 4) 3. Task 3.A Deliverable(s) table is deleted in its entirety and replaced with the following: Task 3.A- Deliverable(s) Due Date(s) 1. Assessment and planning report for No Later than March 31, 2012 with California Green Building Code and LEED Invoicing Requirements (see Task 4) certification training 2. Provide quarterly schedule of training courses to Quarterly starting April 30, 2012 with CPM Invoicing Requirements (see Task 4) 3. Implementation report Monthly starting October 31, 2012 with Invoicing Requirements (see Task 4). 4. Report on best practices and lessons learned Starting September 30, 2012 5. Monthly status report Monthly with Invoicing Requirements (see Task 4). 4. Task 4, Part D is deleted in its entirety and replaced with the following: D. SCE's Regulatory Reporting: Implementer will implement, adhere to, and submit the items as described in Appendix B (Regulatory Reporting Requirements), attached hereto, as SCE requests. The CPUC reporting requirements may be amended from time to time, at which time SCE will notify Implementer of the changes and issue a new Appendix B. Implementer will implement these modifications in a timely manner and future invoice documentation will reflect them. Implementer acknowledges that SCE may, in its sole discretion, require Implementer to provide such other reports or documentation that SCE deems appropriate or necessary ("Ad Hoc Reports"). Implementer will comply with any request for such Ad Hoc Report(s) within a reasonable time or, if applicable, within the time requested by SCE. Deliverable(s) Due Date(s) 1. Prepare and submit Monthly invoices and supporting documentation to SCE. Monthly, by the 15th Calendar Day for Work completed the preceding Month SCE CONFIDENTIAL 2of5 25B-13 2. Prepare and submit Monthly regulatory Monthly, by the 15th Calendar Day for report, including flat files and Monthly Work completed the preceding Month deliverable work sheet. 3. Prepare and submit Semi-annual Reports March 1 and September 1 of each year of (for requirements in Appendix B) to SCE Contract term for Work completed during the preceding 6 Months 4. Prepare and submit Ad Hoc Reports As SCE requests and/or requires 5. Prepare and submit final invoice and By January 15, 2015 for final invoice and Program Report to SCE by December 31, 2014 for final Program Report 5. Task 5, Part A is deleted in its entirety and replaced with the following: A. Program Ramp-Down: If there is a gap in Program services after November 15, 2014, Implementer will provide SCE with a ramp-down plan for the Program. To ensure complete Program shut-down, the Program ramp-down period will commence no later than September 1, 2014. Implementer's plan for Program ramp-down will take into consideration that all services must be completed by December 31, 2014. Implementer will resolve all outstanding Program and Partnership issues and begin preparation of the Final Report beginning September 1, 2014. 6. Task 5, Deliverable(s) table is deleted in its entirety and replaced with the following: Deliverable(s) Due Date(s) 1. Submit detailed ramp-down and shut-down plans and schedules to CPM for review and approval No later than September 1, 2014 2. Resolve outstanding Program and Partnership issues and begin preparation of Final Report No later than September 1, 2014 3. Begin Program ramp-down No later than December 1, 2014 4. Complete all services No later than December 31, 2014 7. Task 6, Deliverable(s) table is deleted in its entirety and replaced with the following: Deliverable(s) Due Date(s) 1. Submit draft Final Report for SCE review No later than December 15, 2014 and approval 2. Submit revised Final Report for SCE review No later than December 31, 2014 and approval SCE CONFIDENTIAL 3 of 5 25B-14 8. Appendix A, Part A (Monthly Invoicing and Reporting Requirements) is deleted in its entirety and replaced with the following: Monthly hard copy invoices are required at the 15th Calendar Day of each Month for Work completed the preceding Month with invoicing supporting files described herein. These invoices and supporting documents are for work performed by the Implementer and all Subcontractors. On January 15, 2015 or sooner, Implementer will submit a final invoice associated with Program services that are tied directly to delivery of the Program deliverables. No Work except that associated with preparing the Final Report (Task 6) and final invoice will be performed after December 31, 2014. Subsequent invoices will only contain expenses associated with closing out the Program (i.e., administration expenses, etc.) that are not directly tied to delivery of the Program goals. 9. Appendix B.2.1 Semi-annual Report Template is deleted in its entirety and replaced with the following: 2.1. Semi-annual Report Template SemAnnual Rpt- Santa Ana Phl.xlsx STRATEGIC PLAN SOLICITATION SEMI-ANNUAL REPORT Plan t- Worms Scope and Goals Prog-n AccompNaAnsnb Y . M. R. ( ss..r.rv ON:II?Y. ' 1rr.ra rsa. sr.rr.err.a sr orlr f...f c...aarac s..?.ww.Ar.r..r ar.rysr O.1 ow.•.«rsa..+. .c...,r S- Iq &S.m A. C t.ncrury am <irma,eo :.'.i."_ ,. •poda?? ne AC ?..•??.? miea?ms wn , ZA.Csw(G-Ba.dn G mE- S- nr- .GU ro)am MCn«rc owOp.o,'«m. 11 P11-1 1z", "I I- eoMr 11", aarory T. C,ry Me.m. MU , , ar arwenny am ciima,ec s,n,egy tlod aCrrmme ncuo?Pi.? (cAP?.E an ?E•v?«aeod mresiaw wn -- 11- S11 CA 1 . ga ficroncy ymy ma.,a. 2 B I.., eod anEngy EMCierwy , Ndr i?a c?ymm. actirncdanncir?eirgM 3a r,uoe cm.r s... •.. , , m..,..,. 1? G- I Id, oom.ro art. SCE CONFIDENTIAL 4of5 25B-15 10. General. From and after the Change Order Effective Date, any reference to the SOW contained in any notice, request, certificate or other instrument, document or agreement shall be deemed to mean the SOW, as amended by this Change Order. Except as modified herein, all other terms and conditions of the SOW shall remain in full force and effect. IN WITNESS WHEREOF, the Parties hereto have caused this Change Order to be executed by their duly authorized representatives as of the Change Order Effective Date. IMPLEMENTER: ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR KEVIN O'ROURKE Clerk of the Council Interim City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director Public Works Agency SCE: SOUTHERN CALIFORNIA EDISON By: Erwin Furukawa Title: Senior Vice President Customer Service Date: SCE CONFIDENTIAL 5 of 5 25B-16 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2013 TITLE: RESOLUTION AUTHORIZING A TWO- YEAR EXTENSION OF THE SOLAR PERMIT FEE WAIVER PROGRAM r CI Y MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1s` Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Adopt a resolution authorizing a two year program to encourage solar installations by temporarily waiving permitting fees. DISCUSSION For the past five years the City Council has adopted a fee waiver program to encourage solar installations for both residential and commercial properties Citywide. The two primary uses of solar energy include using the sun to heat water and/or to generate electricity. Both rely on widely tested and proven technologies however, their application has been limited by the high installation costs compared to potential cost savings. This dynamic continues to shift, however, given the ever increasing cost of energy as well as various programs offered by both the State and local utility companies incentivizing solar installations. Additionally, advances in solar energy manufacturing technologies, as well as expanded markets for solar energy products are continuing to improve the cost/benefit equation. Prior to the adoption of the solar permit fee waiver in 2008, the city processed relatively few solar energy projects (less than five projects per year). This number has increased substantially, and in 2012, the City processed over 65 solar permit applications, a 30 percent increase from 2010. This increase is consistent with growth in solar projects statewide as California leads the nation in solar installations and in 2012 achieved a major milestone by installing over one Gigawatt of solar capacity, enough energy to power 100,000 homes. The City's review of solar energy projects involves both plan check and inspection services. The amount of time required for these reviews depends primarily on the size and complexity of the solar installation. For example, a passive solar water heater requires an average of one staff- hour to review while a large commercial or industrial solar installation may require as many as ten staff-hours. 55A-1 Solar Permit Fee Waiver Program March 18, 2013 Page 2 An analysis of the type of solar installation requests received over the past two years indicates that the majority of solar installations in Santa Ana are for single-family homes. Accordingly, the Building Division has implemented streamlining procedures to reduce the time required to review and issue permits for residential solar projects, as well as reducing the fiscal impact of the fee waiver. In December, 2012 Santa Ana was acknowledged for these efforts and was recognized as a model performer by the California Center for Sustainable Energy and the Energy Policy Initiatives Center in its report, Best Practices for Permitting Processes - Southern California Rooftop Solar Challenge. The City was also recognized in this report as one of only a handful of cities in the State that continue to offer a full fee-waiver for solar installations. In September, 2012 the State Legislature passed Senate Bill Number 1222 which directed how Cities and Counties may charge fees for solar energy systems. Specifically, fees for solar permits may not exceed the estimated reasonable cost of providing the service for which the fee is charged, which cannot exceed $500 plus $15 per kilowatt for each kilowatt above 15kW for residential rooftop solar and $1,000 plus $7 per kilowatt for each kilowatt between 51 kW and 250kW, plus $5 for every kilowatt above 250kW, for commercial rooftop solar energy systems. In a continued effort to promote greater sustainability in the community, it is recommended that the City Council authorize a two-year permit incentive program for solar energy projects. Such a program would waive permit/inspection fees as an incentive to encourage solar installations. Homeowners, business owners, contractors and others would still submit plans and obtain permits and inspections - but the fees for such projects would be waived. While the number of solar energy projects is expected to continue to grow, the environmental and community benefits of the use of solar energy outweighs the impacts to workloads and/or reductions in revenue. By renewing this program Santa Ana will remain a leader in promoting the use of solar energy for both commercial and residential applications. FISCAL IMPACT Based on the fee structure specified in Senate Bill 1222 and the current rate of solar system projects received, it is estimated that the total cost of the two-year program would be approximately $68,000. This amount represents an estimate of uncollected permitting fees for the general fund revenue accounts for Building Plan Check (no. 0111600253600), Plumbing Plan Check account (no. 011600253602), Electrical Plan Check account (no. 0111600253601), Building Permits account (no. 0111600251601), Plumbing Permits account (no. 0111600251602), and Electrical Permits account (no. 0111600251603). APPROVED AS TO FUNDS AND ACCOUNTS: J y VI. Trevino Executive Director Planning & Building Agency MF:rb mflreports\Solar Permits Fee waiver- RFCA_3-18-2013 Francisco Gutierrez Executive Director 01/ Finance & Management Services Agency 55A-2 ROH - 03/18/13 RESOLUTION NO. 2013-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING A TWO-YEAR CONTINUANCE OF A PROGRAM TO ENCOURAGE SOLAR INSTALLATIONS BY TEMPORARILY WAIVING PERMITTING FEES BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. For the past five years the City Council adopted a fee waiver program to encourage solar installations for both residential and commercial properties Citywide. The program's initial adoption resulted from discussions with the City Council Development Committee and a desire to broaden the City's environmental agenda. By all accounts the program has been successful over the past five years in incentivizing solar installations and should be renewed in order to continue supporting the City's goals with respect to the environment and sustainability. B. The two primary uses of solar energy include using the sun to heat water and to generate electricity. Both rely on widely tested and proven technologies, however their application has in the past been limited by the high construction/acquisition costs compared to potential cost savings. This dynamic continues to shift however given the ever increasing cost of energy as well as various programs offered by both the State and local utility companies incentivizing solar installations. C. Prior to the adoption of the solar permit fee waiver the city processed relatively few solar energy projects, less than five projects per year. This number has increased substantially and in 2012 the City processed over 65 solar permit applications a 30 percent increase from 2010. This increase is consistent with growth in solar projects statewide as California leads the nation in solar installations recently reaching a major milestone by installing over one Gigawatt of solar capacity, enough energy to power 100,000 homes. D. The City's review of solar energy projects involves both plan check and inspection services. The amount of time required for these reviews depends primarily on the size and complexity of the solar installation. An Exhibit 1 Resolution No. 2013-XXX Page 1 of 3 55A-3 analysis of the type of solar installation requests received over the past two years indicates that the vast majority of solar installations in Santa Ana are for single-family homes. Accordingly, the Building Division has implemented streamlining procedures to reduce the amount of staff time required to review and issue permits for residential solar projects, as well as reducing the fiscal impact of the fee waiver. E. A two year permit incentive program for solar energy projects would waive permit and inspection fees as an incentive to encourage solar installations. Homeowners, business owners, contractors and others would still submit plans and obtain permits and inspections but the fees for such projects would be waived during the program period. While the number of solar energy projects is expected to continue to grow, the environmental and community benefits of the use of solar energy outweighs the impacts to workloads and reductions in revenue. Section 2. The City Council hereby waives for a two year period commencing upon the date of adoption of this Resolution both plan check and inspection service fees for solar energy projects that generate heat or electricity and for which permits are granted. This wavier shall apply to permits granted no later than two years from the date of adoption of this Resolution. Section 3. This resolution shall take effect immediately upon its adoption by the City Council and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of 12013. Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Ryan O. Hodge Assistant City Attorney Resolution No. 2013-XXX Page 2 of 3 55A-4 AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Resolution No. 2013-XXX to be the original resolution adopted by the City Council of the City of Santa Ana on , and that said resolution was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Resolution No. 2013-XXX Page 3 of 3 55A-5 55A-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2013 TITLE: RESOLUTION AND AUTHORIZATION TO SUBMIT AN ENVIRONMENTAL JUSTICE PROGRAM GRANT APPLICATION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1" Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER IClT404%CNAGER RECOMMENDED ACTION Adopt a resolution approving an application for grant funds from the Environmental Justice Grant Program through the California Department of Transportation, Division of Transportation Planning. DISCUSSION The California Department of Transportation (Caltrans) conducted a call for project applications for Fiscal Year 2013-2014 under the Environmental Justice Grant Program. The program provides funds for projects that integrate transportation, land-use planning, and community values to support livable communities. The program is administered by the Caltrans Transportation Planning Division, Office of Community Planning. The City is currently in the process of updating the Circulation Element of the General Plan, and one of the key components of that update is the adoption of a Complete Streets policy. Complete streets are those which provide mobility for all users and modes of travel, including automobiles, bicycles, pedestrians, and transit. Staff is requesting authorization to prepare and submit an Environmental Justice Program grant application that will support the City's transportation and mobility goals. The grant application will focus on planning level activities to evaluate five roadway corridors in an effort to engage the community and identify potential safety enhancements and feasible elements of complete streets. A subsequent phase will include the preparation of a Complete Streets guidelines document in furtherance of the Complete Streets policy. A resolution authorizing submission of the grant application is required as part of the process. The application deadline is April 2, 2013. 55B-1 Authorization to Submit Environmental Justice Grant Program Application March 18, 2013 Page 2 of 2 ENVIRONMENTAL IMPACT Per Section 15061(b)(3) of the California Environmental Quality Act, this action is exempt from further review as there is no potential for any environmental impact. FISCAL IMPACT The Environmental Justice Program will provide 90 percent of the funding on an approved project with a required local match of 10 percent. If awarded, the grant maximum of $250,000 will be used to pay a consultant, and the City's contribution of no more than $25,000 would be provided by in-kind staff services, and no out-of-pocket funding is necessary. APPROVED AS TO FUNDS AND ACCOUNTS: Rau Godinez II ` Executive Director Public Works Agency Exhibit 1: Resolution Francisco Gutierrez Executive Director Finance & Management Services Agency 55B-2 RESOLUTION NO. 2013- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AN APPLICATION FOR PROJECT FUNDING UNDER THE ENVIRONMENTAL JUSTICE PROGRAM Iss3/11/13 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1: The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The State of California Department of Transportation (CalTrans) has issued a call for projects through the Environmental Justice (EJ) Program, providing funding for projects which promote community involvement in transportation planning to improve mobility, accessibility, safety and opportunities for affordable housing and economic development; and B. Environmental Justice funding would allow the City of Santa Ana to evaluate five corridors to identify complete streets elements which could be incorporated into those corridors and, utilizing the information obtained through the evaluation, prepare a complete streets design guidelines document; and C. If awarded EJ Program funding, the City would comply with all grant assurances, including a ten percent (10%) local match requirement. Section 2: The City Council of the City of Santa Ana authorizes the submittal of an application for Environmental Justice funding for the preparation of a complete streets design guidelines document following an evaluation of the following corridors to identify elements of complete streets which could be incorporated into those corridors: 5th Street from Harbor Blvd to Sullivan Street St Andrews Place from Bristol Street to Main Street Raitt Street from 1 st Street to McFadden Avenue Bishop Street from Broadway to Standard Avenue Orange Street from Warner Avenue to First Street. Section 3: The City Council of the City of Santa Ana authorizes the Executive Director of the Public Works Agency, or his designee, as the agent of the City of Santa Ana, to conduct all negotiations, execute and submit all documents, including, but not limited to, applications, agreements, amendments, Exhibit 1 Resolution 2013-XXX Page 1 of 2 55B-3 payment requests, and Fund Transfer Agreements which may be necessary for the completion of the project. Section 4: This Resolution shall take effect upon its adoption and the Clerk of the Council shall certify and attest to the vote adopting this Resolution. ADOPTED this day of , 2013. Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Laura S. Sheedy Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2013- to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana Resolution 2013-XXX Page 2 of 2 55B-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2013 TITLE: ACCEPT REPORT REGARDING THE MEDICAL MARIJUANA INITIATIVE AND DECIDE WHETHER TO ADOPT PROPOSED ORDINANCE OR PLACE ON BALLOT FOR NOVEMBER 2014 ELECTION CITY MAN4kk CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1s' Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER RECOMMENDED ACTION 1. Receive and file the attached Report prepared pursuant to Section 9212 of the California Elections Code. 2. Call for the election and place the measure on the November 2014 ballot. Alternatives: a. The Council may place the measure on the November 2014 ballot and seek declaratory relief; b. The Council may adopt the measure without change and it would become effective immediately; c. The Council may direct staff to explore placing a competing initiative on the November 2014 ballot;' d. In the future the Council may consider taking further action, including legal action, as may be indicated after the California Supreme Court decides City of Riverside v. Inland Empire's Health and Wellness Center, Inc. (2011) 200 Cal. App. 41885.2 1 The Council retains authority under Elections Code Section 9222 to place a measure on the ballot. A final determination on whether the full text issue disqualifies the initiative measure could be avoided altogether by having the Council present the measure to the voters as a Council sponsored measure. In order to do this the Council would have to direct staff to prepare the measure and the necessary resolutions calling for an election. However, the Council would not be able to take action on the resolutions calling for the election until after it complies with the California Environmental Quality Act (CEQA) because the California Supreme Court has ruled that City sponsored initiative measures, unlike voter sponsored measures, are subject to the CEQA review process. Compliance with CEQA could delay placement of the measure on the ballot by six months, if not longer. Another thing to consider is that the measure may have substantive defects and the Council may not want to sponsor a measure that is not substantively sound. z Last month the California Supreme Court heard oral argument in the City of Riverside v. Inland Empire Patient's Health and Wellness Center, Inc. (2011) 200 Cal. App. 4th 885. The Court has been asked to determine whether local agencies are preempted, under federal or state law, from regulating or banning the operation of medical marijuana dispensaries and related activities. The Court will likely issue its decision before this initiative is on the ballot. Depending on that decision, the City of Santa Ana may decide to support this initiative, support the current ban on dispensaries, or propose a competing initiative which more strictly regulates medical marijuana dispensaries in the City. 65A-1 Medical Marijuana Initiative March 18, 2013 Page 2 BACKGROUND On February 19, 2013, the City Council received the Certificate of Sufficiency indicating the proponents of the Santa Ana Medical Cannabis Restriction and Limitation Initiative had obtained enough valid signatures to have the Initiative submitted to the voters at the next general election. At that meeting, Council directed staff to prepare a report pursuant to Election Code Section 9212, regarding the impacts of the initiative, and to report back to Council at the March 18, 2013 Council meeting. This report includes analysis of the initiative's impact in the following areas: 1. The initiative's effect on land uses, 2. The initiative's impact on public health and safety, 3. The initiative's fiscal impacts, and 4. A legal analysis of the initiative. The attached report provides information to assist the Council in making a decision to adopt the Initiative as submitted or to submit the initiative to the voters at the next general election. The Elections Code requires that the report be considered by Council within 30 days of Council's acceptance of the Certificate of Sufficiency. FISCAL IMPACT The exact cost of including the initiative on the 2014 General Municipal Election is unknown at this time, but the Registrar of Voters has indicated the approximate cost to the City is $150,000. ayy . Trevino Executive Director Planning & Building Agency onia R. Carvalho ity Attorney JMT:jm jmheportslmedical marijuana initiative.cc "A NIN ys?? k '11?,r -J -) ?, - ?-, - Francisco Gutierrez, Executive Director Finance & Management Services Agency Carlos Rojas Acting Chief of Police 65A-2 SANTA ANA MEDICAL CANNABIS RESTRICTION AND LIMITATION ACT INITIATIVE REPORT TO CITY COUNCIL [Prepared Pursuant to California Election Code § 9212] March 14, 2013 65A-3 TABLE OF CONTENTS EXECUTIVE SUMMARY ............................................................................. i CHAPTER 1 - INTRODUCTION AND BACKGROUND ..................................... 1 Overview ............................................................................................. 1 Chronology of Events ............................................................................. 1 Analysis of Petition ................................................................................ 3 CHAPTER 2 - LEGAL ISSUES .................................................................... 4 Overview of Statutory Procedures for Local Initiatives ................................... 4 Fundamental Right of Initiative ................................................................. 5 Overview of Medical Marijuana Regulation ................................................. 5 Summary of Initiative .............................................................................. 6 Issue: Initiative Must be Consistent with Constitutional Requirements .............. 7 Legal Challenges .................................................................................. 9 CHAPTER 3 - PLANNING AND LAND USE ISSUES ........................................ Defining the Means of Marijuana Distribution ................................................ Land Use Compatibility ........................................................................... Operational Standards ............................................................................ Notice of Completed Registration Process .................................................. Planning Conclusion .............................................................................. CHAPTER 4 - POLICE & COMMUNITY PRESERVATION ANALYSIS ................. Primary Impacts .................................................................................... Secondary Impacts ................................................................................ Initiative Specific Impacts ........................................................................ Police Enforcement and Community Preservation Conclusion ........................ CHAPTER 5 - FISCAL IMPACTS .................................................................. Costs Associated with Initiative ................................................................. Revenue Generation .............................................................................. Fiscal Impact Conclusion ........................................................................ CHAPTER 6 - ELECTION ISSUES .............................................................. Timing and Costs for Conducting the Election on the Initiative Measure ............ EXHIBITS Exhibit 1 - Text of Medical Cannabis Restriction and Limitation Act Exhibit 2 - Potential Location Map Exhibit 3 - White Paper Exhibit 4 - Medical Marijuana Dispensaries: Taxes, Fees, Estimated Revenue 10 10 11 12 12 13 14 14 14 16 18 20 20 20 22 23 23 65A-4 ANALYSIS OF SANTA ANA MEDICAL CANNABIS RESTRICTION AND LIMITATION INITIATIVE EXECUTIVE SUMMARY On February 19, 2013 the City Council directed the City Manager to prepare a comprehensive analysis of the Santa Ana Medical Cannabis Restriction and Limitation Initiative. This report was prepared pursuant to California State Elections Code section 9212 and is divided into the following major sections: Introduction and Background, Legal Issues, Planning and Land Use Issues, Police and Code Enforcement Issues, Fiscal Impacts and Election Issues. This initiative measure would require the City to authorize at least twenty-two (22) medical marijuana dispensaries to operate in Santa Ana. The initiative would repeal the City's current ban on such dispensaries and replace it with a ministerial administrative process to govern the operations of medical marijuana collectives or cooperatives, including storefront dispensaries. The initiative imposes a gross receipts business tax on collectives and cooperatives. The initiative requires that dispensaries obtain a Notice of Completed Registration, issued on a first come, first served, basis. The issuance of a Registration is a ministerial process which allows no input from the City regarding location within the authorized zones. This could result in several dispensaries being located within close proximity to one another. Additionally, although applicants are required to provide minimal information regarding their operational and security plans, the initiative does not authorize City input regarding those plans. When an applicant has received a Registration, it is eligible to obtain a certificate of occupancy, also on a ministerial basis. The lack of review authority may result in building and fire safety issues at these locations. The proponents of the initiative presented the City Clerk with a Notice of Intent to Circulate a Petition on July 16, 2012. The City Attorney prepared a Ballot Title and Summary, which the City Clerk delivered to the proponents on July 31, 2012. The petition was then circulated by the proponents for signature. On January 24, 2013 the proponents submitted their petition to the City Clerk who transmitted it to the Orange County Registrar of Voters for signature verification. Based on a random sampling of three percent (3%) of the signatures, the Registrar projected a total of 13,240 signatures were valid, which represents at least 10% of the registered voters in Santa Ana. The Initiative therefore qualifies for the next general election. The Registrar's projection was certified and submitted to the City on February 4, 2013. 65A-5 On February 19, 2013 the City Clerk presented the certified petition to the City Council. On that same date, the City Council ordered the City Manager to prepare an analysis of the Initiative pursuant to Election Code section 9212. The City Council may adopt the initiative measure without change, or place the initiative on the ballot at the next regular election. The Orange County Registrar of Voters estimates that the cost of conducting the election, if it is consolidated with the County on November 4, 2014, is approximately $150,000. ii 65A-6 CHAPTER 1 INTRODUCTION AND BACKGROUND This chapter will provide an overview of the Santa Ana Medical Cannabis Restriction and Limitation Initiative (the "initiative"), the chronology of events to date regarding the proponent's efforts to qualify the initiative for the ballot, and an analysis of the signatures obtained on the proponent's petition. Overview of Initiative The initiative, if approved, would repeal the City of Santa Ana's prohibition of medical marijuana dispensaries, and replace it with a ministerial administrative process to authorize medical marijuana dispensaries to operate in the City. The initiative requires the City to authorize at least twenty-two (22) medical marijuana dispensaries to operate in Santa Ana. The initiative authorizes the City Council to increase, but not decrease that number, based on a formula of one dispensary for every 15,000 residents. The initiative creates a ministerial administrative process for issuing a "Notice of Completed Registration", allowing a collective or cooperative to provide medical marijuana within the City. The initiative prohibits collectives and cooperatives in residential zones and allows them in the C1, C4, C5, M1 P & C-SM zones, and provides operating standards which collectives and cooperatives must meet. Finally, the initiative imposes a two percent (2%) gross receipts tax on collectives and cooperatives. All of these initiative provisions are discussed in greater detail throughout this report. The full text of the Initiative ordinance can be found in Exhibit 1. Chronology of Events The following provides a summary of the key events that have occurred over the last nine months regarding the Initiative. July 16, 2012 The proponents of the Santa Ana Medical Cannabis Restriction and Limitation Initiative presented the City Clerk with a Request for Ballot Title and Summary and Notice of Intent to Circulate a Petition. July 31, 2012 The Ballot Title and Summary was prepared by the City Attorney and given to the proponents by the City Clerk. August 2, 2012 The Notice of Intent to Circulate was published by the proponents in the Orange County Register. With the publication of the Intent to Circulate, the proponents could commence circulation of the petition. The California Elections Code provides 180 days from the date of receipt of the title and summary by the proponents for circulation of the petition. 65A-7 January 24, 2013 The proponents of the Santa Ana Medical Cannabis Restriction and Limitation Initiative filed their petition with the City Clerk. The City Clerk's Department staff examined the petition and determined the number of signatures, prima facie, was in excess of the number of signatures required for either a 10 percent or 15 percent count. The petition was accepted as filed on this date. January 25, 2013 The City Clerk hand-delivered the petition to the Orange County Registrar of Voters for validation of the signatures. The petition contains a clause requesting a special election, which requires that the petition be signed by at least 15 percent of the registered voters (16,374). Therefore, the Registrar of Voters was directed to perform a three percent (3%) random sample of the signatures contained in the petitions. Based on the sample, the Registrar determined that 77.8% of the signatures were valid and 22.2% were invalid. The Registrar projected that 13,240 signatures would be valid. The projected valid signatures equal more than 110% of the number of signatures required to qualify for the 2014 General Election, but are not sufficient to qualify for a special election. The official Report of Registration to the Secretary of State for the City of Santa Ana, which was effective at the time the Notice to Circulate was published, indicates that there are 109,155 registered voters in Santa Ana. Therefore, 10 percent or 10,916 valid signatures were required to qualify the petition for the ballot. February 4, 2013 The Registrar of Voters examined the petition and, based on the official records of voter registration, certified that a sufficient number of valid signatures were attached to the petition. February 19, 2013 The City Clerk reported to the City Council that the petition contained verified signatures of at least 10 percent of the voters of the City, complied with the technical requirements in that the required statements, fonts and signatures were on the petition, and certified the petition. The City Council's action at that meeting was to order a report pursuant to Elections Code Section 9212. 2 65A-8 Analysis of Petition Following the proponent's filing of the petition with the City Clerk on January 24, 2013, the Orange County Registrar of Voters then performed an examination of the signatures submitted. Table 1 summarizes the results of this examination: Table 1 Results of O. C. Registrar of Voters Examination Number of signatures submitted 17,009 Number of signatures examined 510 Number of signatures found valid 397 Number of signatures found invalid 113 Number of signatures invalid due to duplication 0 Once the Orange County Registrar of Voters reported back on the results of its examination, staff performed an analysis of the data based on the factual information presented in the petition. The results of this analysis are provided in Table 2: Table 2 Analysis of Petition Signatures Total registered voters in Santa Ana Total signatures required for General Election 110% of signatures required for random sampling verification Total signatures required for Special Election 110% of signatures required for random sampling verification 109,155 10,916 (10% of registered voters) 12,008 16,373 (15% of registered voters) 18,011 From the analysis in Table 2, it can be concluded that the petition contains verified signatures of at least 10 percent of the voters in the City, which qualifies it for a General Election. 65A-9 CHAPTER 2 LEGAL ISSUES This chapter presents a legal analysis of the Santa Ana Medical Cannabis Restriction and Limitation Initiative prepared by the City Attorney. It provides an overview of the statutory procedures for placing a local initiative on the ballot, a review of state and federal laws relating to marijuana, provides a summary of the initiative, examines the legal validity of the initiative, and sets forth the procedures for a legal challenge to the initiative. Overview of Statutory Procedures for Local Initiatives An initiative is "the power of the electors to propose statutes and amendments to the Constitution and adopt and/or reject them." (Cal. Const. art. II § 8(a).) Initiative powers may be exercised by the electors of each city under procedures established by the Legislature. (Cal. Const. art II, § 11.) California Elections Code Sections 9200, et sec sets forth the statutory procedures for city initiatives. The initiative process commences on the filing of the text of the initiative and a notice of intent to circulate petition with the city clerk. (Elections Code § 9202.) Within fifteen days, the city attorney must provide an impartial analysis and non-argumentative ballot title and summary summarizing what the measure says. (Elections Code § 9203.) The proponents of the measure must publish or post the notice of intention and the title and summary of the proposed measure. (Elections Code § 9205.) When notice is published, the publication must be in a newspaper of general circulation for the city. It is not required that the entire text of the measure be published. After publication or posting, the proponents may circulate the petition among the registered voters of the city. (Elections Code § 9207.) The petition must be signed and circulated in accordance with Section 9207 of the Elections Code. Elections Code Section 9209 requires that each section of an initiative have a declaration of the person soliciting the signatures attached. The statute further requires that the declaration include a statement that the circulator is a voter of the city. (Elections Code § 9209.) After signatures are secured, the petition is filed with the city clerk. The petition must be filed within 180 days of the receipt of the title and summary. (Elections Code § 9208.) If an initiative petition has signatures equal to fifteen percent or more of the registered voters of the city and contains a request for a special election, the measure must be submitted to the voters at a special election to be held not less than 88 days nor more than 103 days after the city council's decision. (Elections Code § 9214.) If the petition does not contain a request for a special election and has signatures equal to ten percent or more of the registered voters and is not passed without changes, the city council must place the measure on the ballot at the next regular election held not fewer than 88 days after the city council's decision, provided the petition contains the signatures of at least ten percent of the registered voters. (Elections Code § 9215.) 4 65A-10 The Santa Ana Medical Cannabis Restriction and Limitation Initiative was signed by at least ten percent (10%) of the votes and has qualified to be included on ballot for the next regular election. (Elections Code §9215.) Fundamental Right of Initiative The courts have described the right to initiative as "one of the most precious rights of our democratic process." (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591.) Because the initiative is not a right granted to the people, but rather, is a power "reserved" to them, the courts generally apply a liberal construction to this power. (Rossi v. Brown (1995) 9 Cal.4th 688, 695.) As one court noted, "[i]f doubts can be resolved in favor of the use of this reserve power, courts will preserve it." (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582,591.) Absent a clear showing of the Legislature's intent to the contrary, courts will presume that the legislative decisions of a governing body are subject to initiative and referendum. (See, Voters for Responsible Retirement v. Boards of Supervisors (1994) 8 Cal 4th 765, 777.) Courts have traditionally been reluctant to interfere with the right of initiative. This reluctance has been described as either a "judicial policy of liberally construing the power of initiative" or as a "presumption" in favor of the initiative power absent a clear showing of legislative intent to the contrary. (Empire Waste Management v. Town of Windsor (1998) 67 Cal.App.4th 714, 718.) Notwithstanding these principles, courts have found initiatives to be invalid in a variety of circumstances, including where the initiative is preempted by state law, either because the subject matter is fully occupied by state law or because the initiative contradicts state law. (Morehart v. County of San Barbara (1994) 7 Cal.4th 725 [merger provisions of local zoning ordinance preempted by Subdivision Map Act].) Additionally, courts have found initiatives to be beyond the power of the electorate where the proposed initiative attempts to control a function expressly delegated to the discretion of the city council by paramount state law. (Committee of Seven Thousand v. Superior Court (1998) 45 Cal.3d 491, 502 [holding certain matters involving local financing of highway construction are delegated exclusively to the local legislative body and, therefore, the electorate may not be exercise the power of initiative on these matters].) Overview of Medical Marijuana Regulation In 1970 Congress adopted the Federal Controlled Substances Act (CSA) which establishes a federal regulatory system designed to fight recreational drug use by making it unlawful to manufacture, distribute, dispense or possess any controlled substance. The CSA designates marijuana as a Schedule I controlled substance, meaning a drug with no currently accepted medical use. As a Schedule I controlled substance, it is a federal criminal offense to manufacture, distribute or possess 5 65A-11 marijuana. Further, because it has no recognized medical purpose, marijuana may not be prescribed by licensed physicians. California voters approved the "Compassionate Use Act of 1996" ("CUA") Health & Safety Code § 11362.5) which provides that state criminal sanctions shall not be imposed against a qualified patient or the patient's primary caregiver, for possession or cultivation of marijuana for the personal medical purposes of the patient, upon the recommendation of a physician. In 2003, the California Legislature enacted the "Medical Marijuana Program Act" ("MMPA") adding §§11362.7 - 11362.83 to the Health and Safety Code, to provide uniform and consistent application of the CUA, provide for identification of qualified patients and their primary caregivers through a voluntary identification card program, and enhance access to medical marijuana through collective and cooperative cultivation projects. It is important to understand that neither the CUA nor the MMPA "legalize" marijuana. They merely provide a limited defense to qualified patients and their primary caregivers with respect to state criminal sanctions related to the possession, cultivation, transportation and distribution of medical marijuana, when a physician has recommended its use to treat a serious medical condition. Last month the California Supreme Court heard oral argument in City of Riverside v. Inland Empire Patient's Health and Wellness Center, Inc. (2011) 200 Cal. App. 4t 885. The Court has been asked to determine whether local agencies are preempted, under federal or state law, from regulating or banning the operation of medical marijuana dispensaries and related activities. The Court will likely issue its decision before this initiative is on the ballot. Depending on that decision, The City of Santa Ana may decide to support this initiative, support the current ban on dispensaries, or propose a competing initiative which more strictly regulates medical marijuana dispensaries in the City. Summary of Initiative The Santa Ana Medical Cannabis Restriction and Limitation Initiative repeals the current ban on medical marijuana dispensaries and replaces it with an administrative process which will authorize at least twenty-two collectives and cooperatives to operate in Santa Ana. Section 3 of the initiative amends Article XIII of Chapter 18 of the Santa Ana Municipal Code as follows: 1. Repeals the current prohibition of medical marijuana dispensaries, including collectives and cooperatives, within the City of Santa Ana. 2. Requires the City to authorize a minimum of twenty-two (22) medical marijuana collectives or cooperatives. The number of authorized collectives and 6 65A-12 cooperatives is based on the City's population (1 dispensary per 15,000 residents). The authorized number may be increased by the City Council, but it may not be decreased below twenty-two. 3. Establishes the zoning districts in which collectives and cooperatives may be located. 4. Provides a ministerial administrative process for applying for and obtaining a "Notice of Completed Registration" which authorizes the applicant to operate a medical marijuana collective or cooperative within the City. 5. Provides that a successful applicant, after it obtains a Notice of Completed Registration, may receive a Certificate of Occupancy and a business license on a ministerial basis without complying with special or conditional use requirements, specifically including parking standards. 6. Provides for operating standards including security such as lighting and alarms, membership guidelines and record keeping, prohibition on possessing a license from the State Department of Alcohol Control, and signage requirements. 7. Prohibits the City, its officers and employees from accepting federal funds to assist in the enforcement of the CSA or to investigate, prosecute, or participate in any task force which investigates or prosecutes offenses that are legal under California medical marijuana laws. Section 4 of the initiative repeals Santa Ana Municipal Code § 41-121, defining "medical marijuana dispensary". Section 5 of the initiative amends Santa Ana Municipal Code § 41-144, to remove the designation of "medical marijuana dispensary" as a land use which is specifically not a retail and service use. Section 6 of the initiative amends Santa Ana Municipal Code § 21-119, to establish an additional gross receipts tax classification for "cannabis business" and imposes a two percent (2%) gross receipts tax on those businesses. If approved, Elections Code Section 9217 provides that the initiative will go into effect 10 days after the election results are declared by the governing body. If the City Council adopts the Santa Ana Medical Cannabis Restriction and Limitation Initiative, or in the alternative, submits the initiative to the electorate and it passes, you should be aware of the following legal implications: Issue: Initiative must be consistent with constitutional requirements An initiative is subject to constitutional requirements. The doctrine of equal protection requires that parties similarly situated must be treated alike under the law. However absolute equality is not required. In areas of social and economic policy, not involving a suspect class or fundamental right, the court will uphold the classification as long as there is a reasonably conceivable set of facts that provides a rational basis for the 7 65A-13 classification. The burden of disproving a rational basis is on the party challenging a statute. (Kasler v. Lockyer (2000) 23 Cal. 4th 472, 482.) Courts will defer to the legislative body when analyzing classifications. However, even in an ordinary equal protection case, calling for the greatest deference, the court must ascertain the relation between the classification adopted and the object to be obtained. (Warden v. State Bar (1999) 21 Cal 4th 628.) The initiative distinguishes between similarly situated persons in two distinct areas. First an applicant must provide evidence that it was, and has been operating at the location prior to December 31, 2011. Second, a licensed physician actively making patient recommendations is not eligible to obtain a Notice of Completed Registration, effectively denying licensed physicians from operating a dispensary. The Proponents do not set forth a basis for either of these restrictions on the right to apply for registration. However, the right to operate a collective or cooperative is not a fundamental right, therefore the court will review the regulatory scheme under a rational basis test to determine whether it is reasonably conceivable that these restrictions bear a rational relationship to a legitimate interest of the City. (FCC v. Beach Communications, Inc. (1993) 508 U.S. 307.) The courts have upheld classification based on prior legal existence. A distinction exists here as all dispensaries have been banned in Santa Ana since 2007. Any dispensary that has been operating since December 31, 2011, has been operating illegally, and has not acquired any right to continued operation. In fact, the City has been working to close all existing illegal dispensaries. No rational argument can be made to reward the illegal operation by putting those dispensaries at the front of the line for a right to continue to operate. The existing illegal dispensaries have been operating against the law from the time they began operating. There is no reason to believe existing dispensaries would be more likely than new dispensaries to comply with the regulations imposed through the initiative. Additionally, no conceivable argument can be made that physicians who actively make patient recommendations pose a greater threat than dispensary operators which exist only to dispense marijuana, and have no other relationship with qualified patients or their primary caregivers. A recommending physician is a person who 1) possesses a license to practice medicine in California; 2) has taken responsibility for some aspect of the medical care, treatment, diagnosis, counseling or referral of a patient; and 3) has complied with accepted medical standards when recommending medical marijuana for his patient. Attorney General Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use (August 2008) (AG Guidelines). Although medical marijuana "dispensaries" have been operating in California for years, dispensaries, as such, are not recognized under the law. Dispensaries do not generally comply with the AG Guidelines. For example, dispensaries that merely require patients to complete a form summarily designating the business owner as their primary caregiver - and then 8 65A-14 offering marijuana in exchange for cash "donations" - are likely unlawful. (People ex rel Lungren v. Peron (1997) 59 Cal. App. 4th 1383, 1390.) The initiative denies equal protection to two different classes: 1) collectives and cooperatives that did not illegally set up shop prior to December 31, 2011, and 2) licensed physicians actively treating their patients. At a minimum, the offending restrictions should be stricken from the applicant requirements set forth in the initiative. Legal Challenges California courts recognize and protect the rights of the people to directly initiate change through the initiative process. (MCH Financinq Limited Partnership v. City of Santee (2005) 125 Cal..App.4th 1372, 1381.) Although courts have the discretion to determine validity before the election "[e]ven grave doubts as to the constitutionality of an initiative measure do not compel a court to determine its validity prior to its submission to the electorate." (Gavle v. Hamm (1972) 25 Cal.App.3d 250, 256.) Accordingly, a court may not deny the right to vote on an initiative unless there is "compelling showing" that it is "clear beyond question" that the proposed measure is legally invalid. (McFadden v. Jordan (1948) 32 Cal.2d 330, 332.) Legal challenges are initiated by a petition for writ of mandate that seeks to invalidate the initiative measure; and sometimes by a complaint for declaratory relief which asks the court to determine the measure's legal status. (See e.g., Citizens for Jobs and the Economv v. County of Orange (2002) 94 Cal.App.4th 1311 [Opponents sought injunctive and declaratory relief and writ of mandate to prevent county from implementing voter-approved initiative].) Although persons or entities with legal standing have the right to seek judicial relief, the affected public agency may also ask a court to determine the contest or otherwise determine the validity of the initiative measure. Id, at 1316. County was sued as a defendant and filed its own cross- complaint to contest the validity of certain spending and procedural restrictions imposed by the measure]. If an invalid provision of an initiative or ordinance is severable, the court will strike the invalid provision from the ordinance and the remaining provisions will be given effect. When the initiative contains a severability clause, an invalid provision is severable if it is grammatically, functionally and volitionally (i.e., voters would have adopted the initiative without the offending provision) separable. (MCH Financing, supra at 1393.) 9 65A-15 CHAPTER 3 PLANNING & LAND USE ISSUES Defining the Means of Marijuana Distribution The City currently regulates medical marijuana dispensaries under Article XIII of Chapter 18 of the Santa Ana Municipal Code (SAMC), "Health and Sanitation". This section was added to the code in 2007 and prohibits the establishment of medical marijuana dispensaries throughout the City. The code does not apply to State-licensed clinics, health care facilities, residential care facilities for persons with chronic life- threatening illnesses, residential care facilities for the elderly or residential hospice or home health agencies. The Santa Ana Medical Cannabis Restriction Limitation Initiative would amend Chapter 18 to remove the current prohibition and allow for the distribution of marijuana in specified zones. Section 18-61 defines a "medical marijuana dispensary" as a "facility or location" where medical marijuana is distributed or made available. The definition specifically includes medical marijuana cooperatives, defined as two or more people who collectively or cooperatively provide medical marijuana, While this does somewhat blur the line between the physical facility and the service provider, it nevertheless clearly identifies a physical establishment as the dispensary. The initiative does not specifically refer to physical establishments where marijuana is distributed, i.e. dispensaries, but rather uses the terms "collectives and cooperatives" without any reference to a physical establishment. For all intents and purposes the collective or cooperative, although referring to a group of people in the definition, is indistinguishable from the physical establishment used to distribute the drug. However, based on further descriptions in the definition, medical cannabis collectives and cooperatives would provide "transfers" of cannabis subject to the City's gross receipts tax, indicating some point of sale. Additionally, the initiative mandates the eligibility for a Certificate of Occupancy (C of O) and sets strict time limits for inspection and issuance. This functionally creates a medical marijuana "dispensary" or "store." Moreover, the initiative's imposition of a special 2% Gross Receipts Cannabis Business License Tax Rate, along with the City's receipt of a portion of the sales tax collected by the California Board of Equalization, characterizes the activity of the medical marijuana dispensaries as retail sales. As such, our understanding of a collective or cooperative is that it would function as a physical establishment, conducting business in a fixed location. This is important for understanding how the use would operate and for evaluating any impacts that such a use would have on its neighboring uses. This will be further discussed in the Land Use Compatibility section. The initiative's definition of collective or cooperative as those operations including five or more patients or their primary caregivers, does not address those operations providing medical marijuana for more than one but less than five patients. With the repeal of the 10 65A-16 City's current definition (two or more), these smaller operations would be unregulated upon passage of the initiative. Land Use Compatibility The initiative specifies that collectives or cooperatives would be allowed within the City's commercial zones, industrial zones and professional office zones, with the exception that they will not be allowed within 600 feet of a public or private school - grades kindergarten through 12. The initiative establishes a minimum number of 22 authorized collectives or cooperatives. The number of authorized dispensaries may be increased by the City Council, based on a formula of one per 15,000 residents should the City's population increase above 330,000. (The official State of California population count for the City for 2011, effective January 1, 2012, was 327, 7,731 a .07% increase from 2010.' Conservatively assuming similar future population growth a new dispensary will be eligible to be registered every five years or less). There are no regulations contained in the initiative regarding the overall distribution of the facilities and there is no cap. Medical marijuana dispensaries in Santa Ana typically have several components to their design and operation. The "patient" is generally admitted into a waiting room that is often similar in design to a medical office with a security window and seating, where the patient's identification card is checked. However, identification may be required before any admittance into the facility. The patient is then admitted to the room where the products are displayed and sold. The marijuana products may range from jars containing the dried plant to marijuana-infused edibles, such as baked goods, drinks, and candies. Some dispensaries also sell associated products, such as rolling papers, glass pipes and vaporizers. Larger facilities contain a growing room where marijuana is cultivated on site, and a facility for processing the plants and making other products. Some facilities allow on-site consumption. The products are generally displayed in cases and employees assist clients in selecting and purchasing the products. Some dispensaries offer introductory offers and special sales promotions, as well as special events that might feature food or entertainment. Hours of operation tend to range, but many facilities are open until midnight. There is a well-established system of advertisement, internet presence and social media associated with the medical marijuana industry. In general, these businesses tend to operate more as commercial retail establishments, than as medical offices or pharmacies, with the added provision of some facilities also having a quasi-industrial use if they include the growing and production component. Staff has prepared a map depicting the locations where the collectives or cooperatives would be allowed to be located pursuant to the initiative (Exhibit 2 - Potential Locations Map). Due to the wide range of zones, collectives or cooperatives would be allowed in a large number of areas throughout the City. The initiative does not contain any restrictions as to the number of collectives or cooperatives that could locate within a particular area, which could lead to clustering of the use depending on space availability. Although prohibited, medical marijuana dispensaries that have been 1 Population figures derived from California State Department of Finance, Demographic Research Unit, 01/01/2012. 11 65A-17 illegally established in Santa Ana are located within a range of zones and buildings, including small-scale industrial parks, office buildings and commercial corridors. Some facility operators prefer a more visible commercial location, while others prefer a more discreet location. As the initiative is written, collectives or cooperatives could locate in a wide variety of places including areas immediately adjacent to sensitive uses, such as residential neighborhoods. In cities where medical marijuana dispensaries are allowed, they are often restricted to a limited number of zones to reduce the likelihood of conflicts or incompatibility with adjacent uses. They often also establish separation requirements from locations such as parks, residential uses, halfway houses, other dispensaries, etc. Operational Standards The initiative contains a list of operational standards, but they are not sufficient to mitigate impacts to adjacent uses. For example; there is no prohibition on the consumption of marijuana within the facility, there are no requirements for separate ventilation systems, minors are allowed in the facility if they are accompanied by a parent or guardian, there is no requirement for security guards, there is no limitation on hours of operation, no limit on the number of patients, no differentiation between facilities that grow marijuana on site and those that do not, no requirement that the production of edibles be regulated by the County Health agency, no restrictions on the sale of ancillary products, no restrictions on special promotions and events, to name a few. Cities that allow dispensaries have generally adopted strict operational standards to address these components of the business operation that can cause impacts to surrounding uses and/or cause public safety concerns. Notice of Completed Registration Process The initiative details the process by which applicants would be granted permission to operate as a collective or cooperative and establishes a strictly ministerial process for granting this permission. Rather than a permit, the applicant is required to register with the City and be issued a Notice of Completed Registration. The applications would be processed by the Executive Director of the Planning and Building Agency. The initiative prohibits the City from requiring any sort of discretionary permit, such as a Conditional Use Permit. There is no requirement for any sort of public notification. The initiative lists the pieces of information that would be required of the applicant, which are very basic. The only information that would begin to address concerns the City might have about operations is a scant "one-page description of the collective/cooperative's nature and its plans for security and non-diversion of medical cannabis." There is no ability for the City to request information beyond that which is listed in the initiative. Cities that allow medical marijuana dispensaries typically require more information than what would be allowed under the initiative 12 65A-18 The initiative provides that upon issuance of a Registration, the applicant is eligible for a Certificate of Occupancy (C of O). The initiative requires that inspections be completed and the C of O issued within 30 days of application unless tolled by the applicant. It can be denied with a written justification, but is deemed issued if this does not occur within 30 days. This provision could circumvent the California Building Code and create an unsafe situation. Planning Conclusion As it is written, the initiative fails to provide an adequate regulatory framework under which to permit the establishment of medical marijuana collectives and cooperatives, however it would allow a relatively small number of establishments and would provide some structure to what is essentially an unregulated use today. 13 65A-19 CHAPTER 4 POLICE AND COMMUNITY PRESERVATION ISSUES Primary Impacts As of March 3, 2013 Community Preservation staff has confirmed 52 illegal medical marijuana dispensaries operating in the City. The initiative's proposed minimum of 22 registered collectives or cooperatives will not result in the voluntary closure of illegal dispensaries. This analysis does not address the continued enforcement which will be required to address illegal medical marijuana dispensaries that would be operating without registration. However, additional Police and Code Enforcement staff will be required to address complaints regarding quality of life and safety of the citizens of Santa Ana, arising from the operation of the 22 registered collectives and cooperatives. The MMPA authorizes collectives and cooperatives, but does not authorize dispensaries. Primary impacts on public safety in the City of Santa Ana experienced due to existing medical marijuana dispensaries involve sales to minors, increased drug dealing, robbery of customers, burglaries of the dispensaries, increased attractive nuisance activities including loitering, litter, public urination, heavy vehicle and pedestrian foot traffic in commercial, professional and manufacturing areas. The initiative does not include any enforcement tools that would allow Police and Code Enforcement to address these issues. Information received by the Police Department indicates that dispensaries are commonly large money making enterprises. In California the dispensary operations have been tied to organized criminal gangs, can foster large grow operations, and are often multi-million dollar profit centers (Exhibit 3 - White Paper on Marijuana Dispensaries by California Police Chiefs Associations Task Force on Marijuana Dispensaries 2009). The initiative limits Registration only to dispensaries that have been operating in Santa Ana since at least December 31, 2011, despite the fact that Santa Ana has banned all medical marijuana dispensaries since 2005. The initiative does not allow for City review of the application to determine what complaints and investigations have been directed at the dispensary, thereby undermining the City's ability to deny a Registration to the most egregious storefront dispensaries, frequently operated by organized crime. As long as the applicant provides evidence that it operated a dispensary since December 31, 2011, a Registration would be allowed. Secondary Impacts Secondary impacts attributed to medical marijuana dispensaries arise from the incompatibility of this type of business with adjacent businesses and residences. 14 65A-20 Neighboring business and residents complain, and will likely continue to complain, of disruption of business activity, increased noise complaints, increased marijuana smoking in public, normally in the dispensaries parking lot, and loss of business from those businesses adjacent to the dispensaries. A common complaint highlighting the incompatibility with other business is impaired health due to vapors and strong marijuana smell emanating from the dispensary through a shared ventilation system or because the premise's doors remain open. Nearby businesses frequently complain about the strong smell or odor of marijuana permeating throughout a business complex, and some of these businesses indicate that the dispensaries drive away the business' customers and clients. Other concerns raised in neighborhood meetings are that some dispensaries are located within proximity, and in a path of travel, to schools and residential properties. This proximity exposes children and residents to the dispensing and use of marijuana by the clientele associated with this type of business. This exposure may be more evident when the business front door is adjacent to a public sidewalk. For example: 832 E. 17th St.; the dispensary front door opens to the public sidewalk and in close proximity to apartment units. 1314 N. Grand Ave.; While the entry is not directly adjacent to the sidewalk, only a short parking lot separate the dispensary from children. 929 S. Main, recently discussed in a Spanish-speaking television news report; the front door opens to public sidewalk, the business is not compatible with surrounding business owners, and it is in close proximity and within path of travel to a residential zone and an elementary school. These dispensaries, which negatively impact the surrounding neighborhood, will be prohibited only if it located within 600 feet of a K-12 school. Other than the 600 feet proximity to schools restriction, the initiative does not address any of the concerns described above related to secondary impacts nor does it address path of school travel issues. The following incidents also illustrate the impact of dispensaries: 1. 1820 E. Garry Ave. - Armed robbery - Adult male victim robbed at gunpoint. Victim states that he had just purchased his medical marijuana from a dispensary and was approached by a suspect with a handgun. Suspect demands "Give me your marijuana". 2. 1820 E. Garry Ave. - Business owner complaints of continual attractive nuisance activity affecting his business from adjacent dispensary. Complaints include smoking of marijuana around his establishment, the constant odor of marijuana through the ventilation system affecting his ability to conduct business. The clients of the dispensary tend to loiter and leave trash in front of other 15 65A-21 businesses. One business closed to find a more suitable location because of the nuisance activity and another in the same complex threatens to move out. A business owner at this address writes: "The smell is the primary issue, but other problems arise from having such a business in our building. The "Clients" of the tenants tend to loiter and leave trash in front of my unit. They all tend to be relatively younger and most of them tend to dress in gangster style which is offensive for the clients that I have." (Letter from business owner) 3. 826 N. Bristol St. - Officers respond to a complaint of prostitution activity. During the investigation it is determined that the location is operating as a dispensary. 4. 1616 E. Fourth St., 1621 E. 17th St., 705 W. 17th St. - Burglary of dispensaries. 5. 1611 E. 17th St. - Business owner upset because two dispensaries are located near her business and has seen an increase of graffiti, trash, and "weird" people. Owner is deeply distressed and planning to move her business out of the city. Initiative -Specific Impacts: Section 18-610 (a) 3: establishes a purely ministerial process 2 which inhibits police and code enforcement staff from acting proactively by leaving no room for additional mitigation measures which would be designed to address known public safety and public nuisance issues. The failure to address these foreseen and potentially preventable issues will lead to increased Police Department and Code Enforcement activity that, given existing resources, could impact services available to the rest of the community. Section 18-610 (a) 5_Lc): prohibits the Police Department and Code Enforcement and its staff from using City resources to assist in the enforcement of federally controlled substance laws to the extent they are inconsistent with California medical marijuana laws. Section 18-610 (a) 5 (d): prohibits the Police Department and Code Enforcement from accepting Federal funding or participating in any task force that accepts Federal funding ` Ministerial duty refers to the official duty of a public officer or official wherein the officer or official has no room for the exercise of discretion, and the performance being required by direct and positive command of the law. The powers and duties of public officers or officials are, in general, classified as ministerial or d discretionary. The character of a duty as ministerial or discretionary is to be determined by the nature of the act to be performed, and not by the office of the performer. Official duty is ministerial when it is absolute, certain, and imperative, involving merely execution of a specific duty arising from fixed and designated facts; that a necessity may exist for the ascertainment of those facts does not operate to convert the act into one discretionary in its nature. 16 65A-22 or revenue sharing, to investigate, cite, arrest, prosecute or seize property based on offenses which would be legal under California medical cannabis laws. The restrictions regarding enforcement efforts (18-610 (a)(5)(c) & (d)) impose an operational restraint on the Santa Ana Police Department that will prohibit the investigation of medical marijuana dispensaries which are not operating in conformance with California law. Until an investigation is complete, the operation cannot be confirmed to be a legal cooperative or collective instead of an illegal dispensary. When the Santa Ana Police Department receives a request for assistance from a Federal agency, the officer does not know whether the business will eventually be found to be operating within the Compassionate Use Act. At a minimum, an officer's refusal to provide assistance not only puts the City at odds with the Federal agency, it also jeopardizes the safety of the federal personnel who will be required to investigate without the assistance a uniformed presence. If the operation eventually uncovers an illegal marijuana distribution, the City's refusal to cooperate would also be a violation of the Controlled Substances Act. Section 18-610 (a) 6 (e): prohibits the City from requiring a collective or cooperative to obtain any special use or conditional use permit. Establishes a purely ministerial process which severely inhibits police and code enforcement staff from incorporating additional mitigation measures which would be designed to address known public safety and public nuisance problems. Section 18-615 (5): requires a "plan" for security with no set minimum standards or description of what the plan is intended to mitigate. The initiative does not allow for police department oversight in order to mitigate known public safety and public nuisance problems or issues. Section 18-615 (6) (E): requires a list of any felony convictions for any crimes of violence, larceny, or fraud which shall be grounds for disqualification as shall failure to disclose. Since the ordinance is administered by the Planning and Building Agency, no process is outlined as how to verify the information provided by the applicant which is normally a law enforcement function. Typically this is handled through a live scan process3; however, the planning and building department is not equipped with Live Scan and the initiative is silent in this regard. Section 18-618 Operating Standards: States in part that "[v]iolation of any of the following standards that rises to the level of a persistent public nuisance in fact that cannot be abated through feasible conditions of operation shall be grounds for abatement...". The initiative provides no guidelines or standards to define either s Live Scan is an automated inkless fingerprinting process. Fingerprints are electronically transmitted to the California Department of Justice (DOJ) for processing. The DOJ conducts a search of their statewide criminal database for convictions. If a Federal Bureau of Investigations (FBI) clearance is required, the prints are sent through the FBI's nationwide criminal database as well. Once the fingerprints have been processed, a report from the DOJ is mailed to the requesting agency. When and how the requesting agency receives the report is dependent upon how quickly the DOJ is able to process the fingerprints. 17 65A-23 "feasible conditions of operation" or who establishes and enforces those conditions. The failure to address foreseen and potentially preventable issues has the potential to increase Police Department and Code Enforcement activity that, given existing resources, could impact services available to the rest of the community. Section 18-618(a): Collectives and cooperatives shall meet all operating standards pursuant to the 2008 Attorney General's Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use (AG Guidelines). The AG Guidelines state in part: Security. Collectives and cooperatives should provide adequate security to ensure that patients are safe and that the surrounding homes or businesses are not negatively impacted by nuisance activity such as loitering or crime. Further, to maintain security, prevent fraud, and deter robberies, collectives and cooperatives should keep accurate records and follow accepted cash handling practices, including regular bank runs and cash drops, and maintain a general ledger of cash transactions. The initiative's reliance on the AG Guidelines does not address security and non- diversion concerns insofar as the AG Guidelines contains vague terminology such as "adequate" and "should". The AG Guidelines do not mandate or provide any basic standards to follow. The initiative's reliance on the AG Guidelines would allow the collectives to decide, without input from local law enforcement, what is adequate security. Section 18-618 (e): Addresses smoking, ingesting or consuming of medical cannabis within 50 feet of a collective on public property. This section of the initiative does not address the majority of attractive nuisance complaints that the Police Department and Code Enforcement receive regarding smoking, ingesting or consuming on private property within 50 feet of a collective. The failure to address foreseen and potentially preventable issues such as this has the continuing potential to increase Police Department and Code Enforcement staff enforcement activity due to calls for service for nuisance complaints in multi-use commercial centers. Section 18-618 (h): "The collective or cooperative shall provide and maintain adequate security on the premises, including lighting and alarms reasonably designed". This section of the initiative does not provide guidance or standards by which to measure compliance. The provision of the initiative does not establish criteria that should be standardized for the collectives to establish mitigation measures for foreseen and potentially preventable issues. The terms "adequate and reasonable" are ambiguous and open to a wide variety of interpretations. Police Enforcement & Community Preservation Conclusion The initiative as submitted would not provide an adequate enforcement structure through which known and potentially preventable public safety and public nuisance problems could be adequately addressed. To the extent that the initiative places some 18 65A-24 limitation on the number of medical marijuana dispensaries it may provide some partial mitigation of primary impacts in connection with those limited number of locations, leaving the question of secondary impacts essentially unanswered. As previously discussed, assuming the 22 registered medical cannabis dispensaries strictly comply with the requirements of the initiative, there remain substantial public safety issues associated with the presence of dispensaries, including the incompatibility with many neighboring uses, and the possibility that criminals will target dispensaries and their clients. 19 65A-25 CHAPTER 5 FISCAL IMPACTS Fiscal Impact of the Santa Ana Medical Cannabis Restriction and Limitation Act Costs Associated with Initiative Direct costs associated with the potential passage of the initiative revolve around the need to: (1) coordinate enforcement efforts and fulfill functional administrative and ministerial duties; (2) maintain an adequate enforcement program to mitigate secondary impacts in connection with registered medical marijuana dispensaries; (3) administer, audit, and collect the 2% gross cannabis business license tax; and (4) monitor proper reporting, remitting, and allocation of local sales tax The initiative's amendment of the City's Business License Tax Code (SAMC Chapter 21) to add a 2% gross receipts Cannabis Business License Tax Rate and provide for quarterly installment payments of the tax, together with its declaration that the City may claim any sales tax collected by the California State Board of Equalization gives rise to a requirement to administer and collect the Cannabis Business License Tax and to audit the reporting and remitting of both the 2% business license tax and the corresponding 8% sales tax (1 % of which is allocable to the City). Since marijuana dispensaries are by their nature primarily cash businesses, business license and sales tax audits will need to be performed at least bi-annually. Assuming 12 hours per audit, fully burdened staff time at $51.53 (plus $400 to cover vehicle, equipment, and supplies), and auditing of half or 11 registered dispensaries per year, the annual cost to the City is estimated at $7,000. The total cost to audit the 22 registered dispensaries is $14,000 for the two year period. Revenue Generation Revenue from the operation of 22 registered medical marijuana dispensaries is extrapolated from 3 sources (Exhibit 4 - Medical Marijuana Dispensaries: 2% Gross Receipts Cannabis Business License Tax / 1% Sales Tax / $500 Dispensary Registration Fee Calculation of Estimated Revenue): (1) a 2% Gross Receipts Cannabis Business License Tax, plus Business License Tax Application Processing Charge (estimated for FY 2014-15 at $32 per dispensary); 20 65A-26 (2) a $500 Medical Marijuana Dispensary Registration Application Fee (bi- annual), and (3) a 1 % local allocation of the current 8% Santa Ana California Sales Tax. To determine the revenue which may be expected from the application of the 2% gross receipts tax on medical marijuana sales by registered Santa Ana medical marijuana dispensaries it is necessary to arrive at a reasonable citywide gross medical marijuana sales figure. Since the City has no reliable source for providing this figure directly it is necessary to arrive at one by way of a comparison to other cities for which a gross sales figure is obtainable. Based on citywide per capita gross medical marijuana sales for the cities of San Francisco, Oakland, and San Jose, and imputing the average figure to Santa Ana, the resulting annual citywide gross medical marijuana sales for the City are $17.7 Million, or approximately $805,000 per registered dispensary. Applying the 2% gross receipts tax rate to this figure and adding the required application processing charge yields a business license tax assessment of about $16,100 per dispensary.4 By extending this $16,100 per dispensary business license tax assessment by 22 registered dispensaries an aggregate assessment of $354,200 is computed. Note: due to the limited number of cities for whom gross medical marijuana sales figures are obtainable these computations must be regarded as very approximate. To which a bi-annual $500 per dispensary registration fee is next added for an additional total of $11,000. (Note: comparable dispensary permit application fees in other jurisdictions with medical marijuana dispensary ordinances impose application fees as well as annual regulatory fees, e.g. City of Oakland Medical Cannabis Dispensary Permit application fee of $5,000 with an annual permit issuance and non- refundable annual regulatory fee of $60,000.) Finally, a 1 % local sales tax allocation figure may be calculated from the computed $17.7 Million in citywide gross medical marijuana sales, which yields a sales tax allocation of approximately 177 000.5 Rounding down to the nearest $10,000, the combined total of these three revenue sources equals 540 000 for FY 2014-15. This figure will vary from year to year depending on the gross sales of medical marijuana dispensaries and taking into account the bi-annual nature of the underlying medical marijuana dispensary registration fee. 4 By comparison the City of Oakland's Business Tax Ordinance imposes 5% gross receipts Cannabis Business License Tax Rate. s Beginning October 2005 the California State Board of Equalization began to issue sales tax seller's permits for the sale of medical marijuana. As the sale of medical marijuana by a medical marijuana dispensary does not generally meet all of the criteria for the exclusion provided by the BOE for the sale of medicines or medical devices (BOE Regulation 1591) medical dispensary marijuana sales may be deemed as being subject to the Santa Ana California sales tax, currently 8% with 1% allocable to Santa Ana. See generally: (BOE Special Notice - Information on Sales Tax and Registration for Medical Marijuana Sellers). 21 65A-27 Fiscal Impact Conclusion According to the Registrar of Voters, the cost of placing the initiative on the 2014 General Municipal Election is estimated at $150,000. Funds would need to be allocated in the FY 2013- 14 budget in order to meet the ballot initiative purpose. 22 65A-28 CHAPTER 6 ELECTION ISSUES This chapter will examine the timing and costs for holding an election on the Initiative measure, potential election costs associated with complying with the provisions of the Initiative in the future and the alternatives available to City Council for bringing the proposed land use initiative before the electorate. Timing and Costs for Conducting the Election on the Initiative Measure Pursuant to Charter §1201 the City of Santa Ana holds municipal elections in November of even numbered years, and they are conducted in accordance with the California Elections Code (Santa Ana Charter §1203). In the 1970's, the State Legislature authorized cities to consolidate their elections with counties as a means of conserving funds. The City of Santa Ana has chosen to consolidate the City of Santa Ana General Municipal Election with the County of Orange Statewide General Elections held in November of even numbered years. The City pays for a portion of the County's cost for conducting the election based on a percentage of its jurisdictional voters. The Orange County Registrar of Voters estimates that the cost for County services to conduct the election on this Initiative, consolidated with the County's general election on November 4, 2014, is approximately $150,000. These costs vary depending on the number of pages added to the sample ballot, the length of the proposed ordinance if it is to be included, and if there are arguments and rebuttals included. These costs do not include City-incurred costs such as publication of legal notices, the purchase of supplies, and general administration of the election. The expenses associated with placing this initiative measure on a future ballot have not been budgeted. Funds would need to be appropriated from the City's General Fund reserve to the City Clerk's Department budget to cover election-related expenses. 23 65A-29 EXHIBIT 1 TEXT OF THE SANTA ANA MEDICAL CANNABIS RESTRICTION AND LIMITATION ACT 65A-30 July 13, 2012 Santa Ana City Clerk Maria Huizar, 2012 JUL 16 Pig 4: 19 CITY _'F ' . A Ni!1 G L 11,; fir We hereby request that the Attorney for the City of Santa Ana timely prepare a title and summary for the attached Medical Cannabis Restriction and Limitation Initiative. Also attached are the "Notice of Intention to Circulate a Petition" and the "Proponent's Signed Statement Pursuant to California's Elections Code Section 9608." We authorize you to contact Kandice Hawes, the Principal Officer of the Committee to Support Medical Marijuana Ballot Initiative, 714-928-9129, when the title and summary are completed, and also please send a digital copy preferably in Microsoft Word to 4?. ? ?a7o? 65A-31 NOTICE OF INTENTION TO CIRCULATE PETITION Notice is hereby given by the persons whose names appear hereon of their intention to circulate the petition within the City of Santa Ana for the purpose of a special or regular election before the voters. A statement of the reasons of the proposed action as contemplated in the petition is as follows: The citizens and business owners of the City of Santa Ana recognize and respect the need for safe and reliable access to medical cannabis by medical cannabis patients as authorized by state law. The citizens of the City of Santa Ana wish to establish the legal operation of medical cannabis centers in the City and to designate the appropriate number and location of such Boll* - Proponent I ? 6 4 U ? b (A) Aer;c6 "P1 J.- i_y ? rJ r? r .. 65A-32 PROPONENT'S SIGNED STATEMENT PURSUANT TO CALIFORNIA ELECTION CODE SECTION 9606 We, Robyn Bollay and Guy Albert Lopez, acknowledge that it is a misdemeanor under State Law (Section 18650 of the California Elections Code) to knowingly or willingly allow the signatures on an initiative petition to be used for any purpose other then the qualification of the proposed measure for the ballot. I certify that I will not knowingly or willingly allow the signatures for this initiative to be used for any purpose other than the qualification of the measure for the ballot. n r o. C Jr ?? `0 65A-33 Signed this tZ:) day of July, 2012 THE SANTAANA MEDICAL CANNABIS RESTRICTION AND LIMITATION ACT 201.7_ JU! 15 °N r!: 19 The People of the City of Santa Ana do hereby enact and ordain as follows: CITY z -i1 t?z; THE SANTA ANA MEDICAL CANNABIS RESTRICTION AND%JMiTkTI0"CTL SECTION 1 TITLE This initiative shall be known and may be cited as The Santa Ana Medical Cannabis Restriction and Limitation Act. SECTION 2 FINDINGS AND DECLARATIONS (a) In 1996 California voters approved Proposition 215, the "Compassionate Use Act of 1996." The people of the State of California declared that their purpose in enacting the measure was, "to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief." (b) Proposition 215 called for plans to implement the "safe and affordable distribution of marijuana to all patients in medical need of marijuana." (c) "Cannabis" is the scientific term for "marijuana" and shall be used in the language of this Ordinance and in all other medical contexts in the City of Santa Ana. (d) We strongly support the right of patients to use medical cannabis in accordance with the recommendation or approval of a licensed physician in good standing with the Medical Board of California. (e) We strongly oppose law enforcement resources being used to arrest, prosecute, and incarcerate qualified patients who use and provide medical cannabis in accordance with the Compassionate Use Act (California Health and Safety Code section 11362.5) and Senate Bill 420 (California Health and Safety Code sections 11362.7 et. seq.). (f) Access to medical cannabis should occur in a safe and orderly manner to protect patients and the community. The absence of controlled dispensing organizations results in patients being forced to obtain their medicine in the illicit market, or incurring hardship and expense of traveling great distances to obtain their medicine from outside their community. (g) In the absence of detailed State regulation, local governments must adopt policies and regulations to protect their communities and their resident patients' safe access to their medicine. 65A-34 (h) According to the California State Board of Equalization, medical cannabis organizations contribute between $50 and $100 million dollars in sales tax to the State of California annually, and provide employment to thousands of Californians. Local municipalities, including the City of Sacramento, have passed special business tax rates for medical cannabis organizations which provide revenue used to fund much needed services such as public safety, education, and health. (i) The People of the City of Santa Ana further find and declare that we enact this initiative pursuant to the powers reserved to the State of California, the City of Santa Ana, and its People under the Tenth Amendment to the United States Constitution, as well as under the general police power of local government derived from the State's sovereignty. 0) The intent of this Ordinance is to restrict and limit the number of medical cannabis collectives and cooperatives operating or which may operate in the City of Santa Ana, but not to prohibit them. (k) The intent of the two percent gross receipts tax on medical cannabis collectives and cooperatives is for the betterment of the community. (1) The subject of this Ordinance is to determine the appropriate location of medical cannabis collectives and cooperatives. The regulation of such collectives and cooperatives may be accomplished by State law, or by any other Santa Ana voter initiative. This Ordinance cannot be amended by the City Council except as specifically provided below. SECTION 3 AMENDMENTS TO SANTA ANA MUNICIPAL CODE CHAPTER 18 ARTICLE XIII The People of the City of Santa Ana do hereby enact and ordain that Chapter 18 Article XIII of the Santa Ana Municipal Code is hereby amended to read as follows (any underlined language is new and to be inserted, any struck-through language is existing and to be deleted): 2 65A-35 Sec 18 10 - Purpose The pL ose o this ch 7-11362.83 and 11362 and Directives apter is to implem known respectiv ent alif rnia Hea ely as the Compas lth and S sionate U afety Code sections 11362.5 se Act of 1996 an the , - Medical Marijuana Pro gram Act (effecti ve 2004); and to im pose lim itations on the locatwon of facilities lawfully used for the cultivatio n, processing, stor age- and d' sensing of medical other than th cannabis e cultivation or po ssession by an ind ividual q ualified satiee t or care ie ver , at the patient or caregi ver's home The C ompassionate Use Act is th e State law removing State lawpenalties for quali and fied patients those patients' nn 'm ar; care givers. for posSeQn and cultivation of a person , al amount of med ical cannabis for q ualified p atients. The Medical Mori u na Program Ac collectively or cooopera pose of this i le t i the State lay= •vely cultivate an is also toe act re that allows qualifi d distribute medic asonable operating edpatien al canna na zon ts and caregivers to bis for and to each other The ing limitations and other restrictions applicable to the cultivation and distribution of medical cannabis based on the needs o the City of Santa An (a) This Article is i () To fulfill the pu a and its resident ntended: rpose of the Com s passionate Use Ac t to "imp lement a plan to provide or the safe and aff ordable distributi on of madj na to all patie nts in medical need of mad-*u na" in a ccord with the M edical Marijuana P rogram Act's_2umose to provide a = 11 rei l ated program for patie nts and caregivers acting co llectively or cooperatively-to cultivate and o btain medical can nabis 65A-36 65A-37 (a) "City" means the City of Santa Ana. "Cannabis" or "marijuana" means marijuana and all arts oft plant cannabis, whether growing or no ; the seeds thereof; the resin extracted fm any a o h plena; and every. compound, manufacture- salt, derivative, mixture, or preparation of the plant, its seeds or resin. It includes marijuana infused in foodstuff It does not include th mature stalks of the plant, fiber produced from stalks, oil or cake made from the seeds of the plan i_nv other compound. manufacture, salt, derivative, ix ur , or preparation of the mature sulks ( .except the resin extracted therefrom) fiber, oil, or ak , or the sterilized seeds of the plant are incapable f germination. W "Collectives" and "cooperatives" when referring to medigal cannabis organizations, both mean associations of five or more qualified patients, persons with identification cards or primary Caregivers of q alifi 12 i c nd persons with identifi a ipn cards, who assoeiate, as an inco orated or unincorporated associations to collectively or cooperatively cultivate and distribute medical cannabis for use exclusively by their registered members, in strict accordance (d) "Dire ctor" means the Execu tive Director of the Plannin g and BuildingAgenQy or his or her designee. (A) "Med ical cannabis identific ation card" a nd "identifica tion card" mean a document issued by the Sta te Department of Hea lth Services pursuant to Califomia Health and Safety Code sections 11 362.7 et seg that ide ntifies a pers on authorize d to engage On the medical use of cannabis an d the person's designat ed primary ca regiver, if an y, or identifies a person as a p itir rtt?rv caregiver f or a medical cannabis p atient, (f) "Medical cannabis transfer" means: (1) Tho transfer of medical cannabis from a 'ma caregiver tot at primary caregiv. ees qualified patient for such consideration as is su fficient to reimburse tat np •mary caregiver for the prime caregiver's out-of-po k expenses and for the primaiv caregiver's services which shall not be subject to the City's gross receipts tax; or (2) Transfers of medical cannabis among qualified patients or prim art' caregivers facilitated through an association of those qo la 'fed patients and rim Y,y caregivers who= _ be s 4 jest to the City's gross receipts operating as a cooperative or collective which shall tax_ (g) "Medical mariuana" and "medical cannabis" means cannabis that is grown;, used- and distributed pursuant to the provisions of California Health and Safety Code sections 11362.5 and 1,1362.7-11362.83, including all cannabis products, infusions, and concentrates containing the active ingredients of the cannabis Plant. 65A-38 !hl "Notice of Completed Regist ration" means a writte n notice to an applicant for collective or cooperative regis tration issue by t he director as a minest erial duty indicating tha t the an In is to ioll is c.omnlete an a 1 1 "Overhead ccurate. expenses" means u?rred all expenses i cr by the collective or coo ra ive ? including but of limited to accoun _ i ng, advertising, culti vation materials and equ i men depreciation- insu rance legal fees, mortgage payments, r ent repairs, applies, ax es, utilities, volunteer compen , sation and reimb ursements--"es, sala ries, payroll, fees paid t o comply with the requirements of this Article an d any other expennsem a ssociated with the establ ishment and operation of the c (*- "Non-profit , ollective or coop operation" mean erative, s that the collective or cooperative does not dis tribute its net retained eamingc ( 1 Mon w to any individual ith an identificati . on card" means an ind ividual who is a qualifie d patient and who has applied f or and received a valid identification ca rd pursuant to Californi a Health and Safe Code secti (1) "Primary ons 11362.7-1136 caregiver" shall h 2-83- ave the amp, definitio n as California Health a nd Safety Code sections 11362.7 et see. and as m ay be amended, and w hich defines "primary caregiver" an individual design , ated bya qualifi ed patient or v a pers on with an identificatio n card, who has , gonsisten ly assu med responsibilit y for the housing, hea lth, or saf . of that pa tient or person, and may include a licensed clinic , a licensed health ca re facility, a residents care facility, a hospice. or a ho me health agenc y as allowed by Cali fornia Health and Safet y ode section 11362.7(d)(1-3). (M) "Qualifie d patient" shall have the same def inition as California Health and S afety Code section 11362.7 et seq and as may be amended, and which states that a "Qualifie d patient" means a person „ who is entitled to the protections of California Health and Safety Code section 11362.50 but w ho does not have a valid medical cannabis identification card. (n) "Registration list" or "medical cannabis collective and cooperative registration lic_t" means the list of registered medical cannabis collectives and cooperatives maintained by tho Director. (o) _ "School" means any public or private school with students in any grade K-12. 65A-39 W Nothing in this Article shall be construed to gran any registrant any status or right o h .r than the right to be identified on the City's registration list, and to receive a Notice of Completed Regi r ion, a Certificate of Occupancy, and a gross receipts business license, and the right to assert an affirmative defense to administrativ% civil, and criminal enforcement of the City of Santa Ana Municipal Code based on conduct in compliance with this Article and with California law. A duly regisered collective or cooper ive, its members- officers, directors, mann_amrc, and employees, shall not be subject to administrative, civil o criminal sanctions based on the City of Santa Ana Municipal Code solely on the basis of conduct i compliance with this Article and 65A-40 (2) The name, maililig address, and telephone Lium (3) The cooperative or collective name and street a ber of the applicant, ddress for which registration is sought , as well as any other names under which the collec . tive ocooperative may operate, (4) Copies of the collective or cooperative's entity- formation document such ass, without li i , its Articles of Incorporation, Articles of A Membership Agr m n , etcetera. (5) A one-page description of the collective or coo ssociation, Lye operati g or perative's nature and its plans for security and non-diversion of medical cannabis. (A) Complete legal name, and a alias(es): (S) Some form of dated documentary evidence that the collective or cooperative had begun operating at the location prior t December 31, 2011, including but not limited to, a lease. a utility receipt, a State Board of Equalization Seller's Permit, or a Federal Employer Identification Number. 65A-41 Sec 18-616, - Registration Application Form, Manner, Timing. and Pri wit i 15 calendar days of the date of adopti (A) The Director shall ority Order on of this Article, create , r-gictration appli a io orm and instructions that strictly require only the information req iu red pursuant to Sec 18-515 of this Article and shall begin aceep ng applic ations on a published date within 0 calendar days of the date of adoption of this Article. (b) At least seven calendar days prior t the date the Director will b the Director shall ?p ibli on he City's w applications for registration egin =ce ing ebsite and once in a daily , newspaper of general circulation, the date, time, and manner on and in which collectives and cooperatives must submit registration application forms and the require d fee, and shall make p ubli available those forms and ins ructions at City Hall and on the (g) Each collective and cooperative shall submit with its registratio City's website. n application a required _fee pursuant to this Article. (dl As each collective and cooperative submits its registration appli cation an fee pursuant to the Director shall time-stamp the agnlication with the date this Article and time received. Seven , calendar days after the date the Director begins accepting applications, the Director shall stop ageepting applications and shall that day establish a priori. list that ide ntifies by name, address, dateand time the order in which applications were received. The order in which applications were received shall be the order in which the Director shall process the m. A collective or cooperative m may only be assigned one place on the priorilist and mu ltiple submissions will result in immediate disqualification from the registration process. (g) Within seven calendar days of establishing the priori . list, the Director shall publish the list on the City's website and once in a local_ daily newspaper o priori f general circulation. , (f) The order set fort in the priority list shall remain in effect until the priority list has been at which time- should the number of curront valid registratio exhausted ns fah below that , established by Sec. 18-512 of this Article, a new date and time will be s et for submission of additional applications following the process set forth herein - but not m ore frequently than once . eve [y 180 days. (g) Following establishment of the priorilist. the Director shall b egin processing as a ministerial duty the registration applications of collectives and coopera tives in the order established by the prioriy list. The Director shall conti nue processing a pplications until the maximum number of collective and cooperative registrations have been issued a Notice of 65A-42 (h) No cooperative's or collective's rank on tho priority lists all be assigned, transferred, or sold Any attempt to so assign, rte, or sell a priori ranking shall render the application null and void. Any Person, Q lcptE •ve, or cooper tiv p atte tin to o assiU. transfer, or sell a priority ranking and any erson, collective, or cooperatiye attempting to_acQuire a_nriorilr ranking outside the ron visiops set forth herein shall be immediately disqualified from the registration Sec. 18-617. - Issuance and Renewal of Registration The applicant has failed to provide information reasonably necessary for processing hie. registration application or has knowingly answered an application question or request for information falsely.; or (4) No California State Board of Equalization Seller's PCtnnit has been granted for the applicant collective or cooperatives or 10 65A-43 (a) Collectives and cooperatives shall meet all the op .rat' gstandards for the dispensing medical cannabis ten iL red pursuant to California Health and Safety Code sections Ii362 5 and 11362.7 et seq., by this Article and by the 2008 Attorney General' Guidelines for the Security and Non-Diversion of Mad.juana Grown for Medical Ilse- 11 65A-44 (g) In order to protect confdentiality; the collective or cooperative may maintain records all qualified patients with a valid identification card and primary caregivers with a valid identification card using only the identification caul number issued by the State or County pursuant to California Health a_nd Safety CQdc section 11362.7 et sea (k) A sign shall he posted inside colip ewes and coQ ratiyes, stafingu,nYaQlwy "The diversion of cannabis for non-medical purposes is a violation of State law Loitering at the location of a medical cannabis dispensing Qollective for an illcual - mole is prohibited by 12 65A-45 California Penal Code section 647(h). No medical cannabis shall be smoked, ingested a otherwise consumed in the public right-of-wav within fifty (50) feet of a medical cannabis collective or cooperative." Such sign shall be printed in 14-point font or larger upon 8 1/z by 11 piper and posted at some conspicuous part of such si lh A d di ib .r O r r a , M O an stf .,t=o=. o= a of this . -Affi .t e is to pfeh':t meth "'1 .« r rdispe d F '1 ?? ,, r th '•+'1 o=O. (Ofd. No. NS 2758, s 2, 11 5 07) -moll - i - `T` MVTV T 7 }I 11 ' (b) Unlegs ethepMse r ob wed by t .AtO his shaptef rl a t 1 Cam' 9pplir. le Fn lw*, a med4va ft C lig l r +a i .. Swede; r p a am a cede; Galifemia Health a nd Sagoty Co de; 13 65A-46 . (d) A41 tems use d in this seefie n ifiel udin b ut ne t limit ed te „ i " " lifi d , g Har- jua na-, qua e ie r3 "ideff fie n mien a&F an " i d ' ' " h ll b fi d d i Ga4 t t f , t "a cnr . C d , fi 11362 5 °' n ° flt -Bft F@g}i £ , ? s a e eas ne n i- `te ; i y f LiiM RJii1 V e e s ee en . • (Or- N N S 2758§ 1 1.5.07 ) o It shall be tiala wf l for- m - - tit t u y per son own, ma or en y o nage, medioal maf?u ana dispensary or- to paoieipeAe as an > eefif ffieter-, ageM of ve4unt ^ i vi, v u J vui , (04 Ne NS 27 2 11 5 07 . -,, § ,,- ) SECTION 4 AMENDMENTS TO SANTA ANA MUNICIPAL CODE SECTION 41-121 The People of the City of Santa Ana do hereby enact and ordain that Section 41-121 of the Santa Ana Municipal Code is hereby repealed and deleted in its entirety (all existing language to be deleted is struck-through as follows): MORJURREk 19 Mel €elleWiRgL ds aya-iAle to, l 9) ° i..a 14 65A-47 Safety 69de-, 14eaM and Safety Gede? l 4 " ° side. i f nilit f ' r4 eld th heen d nt t C ha ter- 34 ef the e a ) y e e y e p se o p li ith bl l k li l di b t n t li ited t G 4fam i HeaM and Safet eemp es w app e aw, i ea e u ng u o m e a a y Health and Safety Cede seefien SECTION 5 AMENDMENTS TO SANTA ANA MUNICIPAL CODE SECTION 41-144 The People of the City of Santa Ana do hereby enact and ordain that Section 41-144 of the Santa Ana Municipal Code is hereby amended to read as follows (any underlined language is new and to be inserted, any struck-through language is existing and to be deleted): Sec. 41-144. - Retail and service uses. Retail and service uses include any use of property for the purpose of offering merchandise or services to the public for compensation, and include banks, savings and loan associations, and similar financial institutions, but do not include the following: (a) Sheet metal shops, body-fender works, automobile paint shops, repair garages, and any activity which includes the processing, treatment, manufacturing, assembling or compounding of 15 65A-48 any product, other than that which is clearly and traditionally incidental and essential to a particular retail activity. 0?? (e) A hookah parlor as defined in section 41-73.5 of this Code. (a (d)Any use which is more specifically identified as a permitted use or as a use which may be permitted subject to the issuance of a conditional use permit in one or more use districts pursuant to Article III of this chapter. SECTION 6 AMENDMENTS TO SANTA ANA MUNICIPAL CODE SECTION 21-119 The People of the City of Santa Ana do hereby enact and ordain that Section 21-119 of the Santa Ana Municipal Code is hereby amended to read as follows (any underlined language is new and to be inserted, any struck-through language is existing and to be deleted): Sec. 21-119. - Gross receipts tax rates. Gross receipts tax rates for the different classifications are as follows: (1) Classification "A"-All businesses for which no tax is specified elsewhere in this Article, including, but not limited to: retail businesses and sales at retail, services (including real estate brokers, real estate developers, insurance brokers, life and disability insurance analysts, stock and bond brokers, commission agents, brokers or merchants, building and loans, and recreational services), hotels, motels, theaters, and food establishments: For each separate place of business licensed, a basic rate of $60.00, plus: $0.50 per $1,000.00 to.....$100,000.00 0.30 per 1,000.00 to .....500,000.00 0.20 per 1,000.00 to .....1,000,000.00 0.15 per 1,000.00 over .....1,000,000.00 (2) Classification'B"-Manufacturing, processing, wholesale businesses and sales at wholesale, sales of gasoline and motor fuels, and telephone services: For each separate place of business licensed, a basic rate of $60.00, plus: $0.30 per $1,000.00 to .....$100,000.00 0.25 per 1,000.00 to .....300,000.00 0.20 per 1,000.00 to .....600,000.00 0.15 per 1,000.00 to .....1 ,000,000.00 16 65A-49 0.10 per 1,000.00 over .....1,000,000.00 (3) Classification "C"-Rental of commercial real estate: For the first property location licensed, a basic rate of $60.00, plus: $0.50 per $1,000.00 to .....$100,000.00 0.30 per 1,000.00 to .....$500,000.00 0.20 per 1,000.00 to .....1,000,000.00 0.15 per 1,000.00 over..... 1,000,000.00 For each additional property location licensed, a basic rate of $10.00, plus: $0.50 per $1,000.00 to .....$100,000.00 0.30 per 1,000.00 to .....$500,000.00 0.20 per 1,000.00 to .....1,000,000.00 0.15 per 1,000.00 over..... 1,000,000.00 (4) Classification "D"-Junk yards, automobile wrecking yards and salvage yards; junk dealers, junk collectors, automobile dismantlers, junk salvagers, and junk recyclers: For each separate place of business licensed, a basic rate of $100.00, plus: $0.50 per $1,000.00 to .....$100,000.00 0.30 per 1,000.00 to .....500,000.00 0.20 per 1,000.00 to .....1,000,000.00 0.15 per 1,000.00 over .....1,000,000.00 (5) Classification "F"-cannabis businesses: Fort the purpose of this Section, "cannabis business" means business tivity including- but not limited to, planting, cultivation. ha rvesting manufacturing transporting compounding, converting, processing, pre , , , packaging- wholesale paring storing and/or retail sales of marii ,Lana_ any pa of he pl , . , ant Cannabis sativa L. or its derivatives Tt specifically include medical cannabis tra nsfers by collectives and cooperatives- and it specifically excludes medical cannabis tra nsfers by prime caregivers to their qualified patients as defined in Chanter 18 Article MH of this Code 17 65A-50 (d) This tax shall be payable in quarterly installment payments y any oKganization falling under thia Classification "E" SECTION 7 INITIATIVE NOT TO BE AMENDED OTHER THAN BY VOTERS This initiative ordinance and every part thereof can only be amended by the Voters of the City of Santa Ana and cannot be amended by the Santa Ana City Council except as specifically provided above. SECTION 8 SPECIAL OR REGULAR ELECTION The Voters of the City of Santa Ana hereby expressly request that this initiative ordinance be set for a special or regular election at the earliest time allowable by law. SECTION 9 SEVERABILITY Should any provision of this initiative ordinance, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, voidable, or invalid, that determination shall have no effect on any other provision, or the application of this initiative ordinance to any other person or circumstance and, to that end, the provisions hereof are severable. By approving this ordinance the voters intend that each section and sub-section be explictly severable, part-by-part, phrase-by-phrase, and word-by-word, thus that the minimum language held invalid be severed. 18 65A-51 EXHIBIT 2 POTENTIAL LOCATION MAP 65A-52 65A-53 EXHIBIT 3 WHITE PAPER 65A-54 WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION'S TASK FORCE ON MARIJUANA DISPENSARIES © 2009 California Police Chiefs Assn. All Rights Reserved 65A-55 ACKNOWLEDGMENTS Beyond any question, this White Paper is the product of a major cooperative effort among representatives of numerous law enforcement agencies and allies who share in common the goal of bringing to light the criminal nexus and attendant societal problems posed by marijuana dispensaries that until now have been too often hidden in the shadows. The critical need for this project was first recognized by the California Police Chiefs Association, which put its implementation in the very capable hands of CPCA's Executive Director Leslie McGill, City of Modesto Chief of Police Roy Wasden, and City of El Cerrito Chief of Police Scott Kirkland to spearhead. More than 30 people contributed to this project as members of CPCA's Medical Marijuana Dispensary Crime/Impact Issues Task Force, which has been enjoying the hospitality of Sheriff John McGinnis at regular meetings held at the Sacramento County Sheriff's Department's Headquarters Office over the past three years about every three months. The ideas for the White Paper's components came from this group, and the text is the collaborative effort of numerous persons both on and off the task force. Special mention goes to Riverside County District Attorney Rod Pacheco and Riverside County Deputy District Attorney Jacqueline Jackson, who allowed their Office's fine White Paper on Medical Marijuana: History and Current Complications to be utilized as a partial guide, and granted permission to include material from that document. Also, Attorneys Martin Mayer and Richard Jones of the law firm of Jones & Mayer are thanked for preparing the pending legal questions and answers on relevant legal issues that appear at the end of this White Paper. And, I thank recently retired San Bernardino County Sheriff Gary Penrod for initially assigning me to contribute to this important work. Identifying and thanking everyone who contributed in some way to this project would be well nigh impossible, since the cast of characters changed somewhat over the years, and some unknown individuals also helped meaningfully behind the scenes. Ultimately, developing a White Paper on Maryuana Dispensaries became a rite of passage for its creators as much as a writing project. At times this daunting, and sometimes unwieldy, multi-year project had many task force members, including the White Paper's editor, wondering if a polished final product would ever really reach fruition. But at last it has! If any reader is enlightened and spurred to action to any degree by the White Paper's important and timely subject matter, all of the work that went into this collaborative project will have been well worth the effort and time expended by the many individuals who worked harmoniously to make it possible. Some of the other persons and agencies who contributed in a meaningful way to this group venture over the past three years, and deserve acknowledgment for their helpful input and support, are: George Anderson, California Department of Justice Jacob Appelsmith, Office of the California Attorney General John Avila, California Narcotics Officers Association Phebe Chu, Office of San Bernardino County Counsel Scott Collins, Los Angeles County District Attorney's Office Cathy Coyne, California State Sheriffs' Association Lorrac Craig, Trinity County Sheriffs Department Jim Denney, California State Sheriffs' Association Thomas Dewey, California State University-Humboldt Police Department Dana Filkowski, Contra Costa County District Attorney's Office John Gaines, California Department of Justice/Bureau of Narcotics Enforcement Craig Gundlach, Modesto Police Department John Harlan, Los Angeles County District Attorney's Office-Major Narcotics Division © 2009 California Police Chiefs Assn All Rights Reserved 65A-56 Nate Johnson, California State University Police Mike Kanalakis, Monterey County Sheriffs Office Bob Kochly, Contra Costa County Office of District Attorney Tommy LaNier, The National Marijuana Initiative, HIDTA Carol Leveroni, California Peace Officers Association Kevin McCarthy, Los Angeles Police Department Randy Mendoza, Arcata Police Department Mike Nivens, California Highway Patrol Rick Oules, Office of the United States Attorney Mark Pazin, Merced County Sheriffs Department Michael Regan, El Cerrito Police Department Melissa Reisinger, California Police Chiefs Association Kimberly Rios, California Department of Justice, Conference Planning Unit Kent Shaw, California Department of Justice/Bureau of Narcotics Enforcement Crystal Spencer, California Department of Justice, Conference Planning Unit Sam Spiegel, Folsom Police Department Valerie Taylor, ONDCP Thomas Toller, California District Attorneys Association Martin Vranicar, Jr., California District Attorneys Association April 22, 2009 Dennis Tilton, Editor © 2009 California Police Chiefs Assn All Rights Reserved 65A-57 TABLE OF CONTENTS Pages ACKNOWLEDGMENTS ...................................................... i-ii EXECUTIVE SUMMARY ......................................................iv-vi WHITE PAPER ON MARIJUANA DISPENSARIES INTRODUCTION ............................................................1 FEDERAL LAW ..............................................................1-2 CALIFORNIA LAW ...........................................................2-6 LAWS IN OTHER STATES .....................................................6 STOREFRONT MARIJUANA DISPENSARIES AND COOPERATIVES ................6-7 HOW EXISTING DISPENSARIES OPERATE ......................................7-8 ADVERSE SECONDARY EFFECTS OF MARIJUANA DISPENSARIES AND SIMILARLY OPERATING COOPERATIVES .................................8 ANCILLARY CRIMES .........................................................8-10 OTHER ADVERSE SECONDARY IMPACTS IN THE IMMEDIATE VICINITY OF DISPENSARIES ..............................................................11 SECONDARY ADVERSE IMPACTS IN THE COMMUNITY AT LARGE .. ............ 11-14 ULTIMATE CONCLUSIONS REGARDING ADVERSE SECONDARY EFFECTS ........ 14 POSSIBLE LOCAL GOVERNMENTAL RESPONSES TO MARIJUANA DISPENSARIES. 14-17 LIABILITY ISSUES ...........................................................18-19 A SAMPLING OF EXPERIENCES WITH MARIJUANA DISPENSARIES ...............19-30 PENDING LEGAL QUESTIONS .................................................31-39 CONCLUSIONS ..............................................................40 ENDNOTES ..................................................................41-44 NON-LEGAL REFERENCES ....................................................45-49 © 2009 California Police Chiefs Assn. III All Rights Reserved 65A-58 WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION'S TASK FORCE ON MARIJUANA DISPENSARIES EXECUTIVE SUMMARY INTRODUCTION Proposition 215, an initiative authorizing the limited possession, cultivation, and use of marijuana by patients and their care providers for certain medicinal purposes recommended by a physician without subjecting such persons to criminal punishment, was passed by California voters in 1996. This was supplemented by the California State Legislature's enactment in 2003 of the Medical Marijuana Program Act (SB 420) that became effective in 2004. The language of Proposition 215 was codified in California as the Compassionate Use Act, which added section 11362.5 to the California Health & Safety Code. Much later, the language of Senate Bill 420 became the Medical Marijuana Program Act (MMPA), and was added to the California Health & Safety Code as section 11362.7 et seq. Among other requirements, it purports to direct all California counties to set up and administer a voluntary identification card system for medical marijuana users and their caregivers. Some counties have already complied with the mandatory provisions of the MMPA, and others have challenged provisions of the Act or are awaiting outcomes of other counties' legal challenges to it before taking affirmative steps to follow all of its dictates. And, with respect to marijuana dispensaries, the reaction of counties and municipalities to these nascent businesses has been decidedly mixed. Some have issued permits for such enterprises. Others have refused to do so within their jurisdictions. Still others have conditioned permitting such operations on the condition that they not violate any state or federal law, or have reversed course after initially allowing such activities within their geographical borders by either limiting or refusing to allow any further dispensaries to open in their community. This White Paper explores these matters, the apparent conflicts between federal and California law, and the scope of both direct and indirect adverse impacts of marijuana dispensaries in local communities. It also recounts several examples that could be emulated of what some governmental officials and law enforcement agencies have already instituted in their jurisdictions to limit the proliferation of marijuana dispensaries and to mitigate their negative consequences. FEDERAL LAW Except for very limited and authorized research purposes, federal law through the Controlled Substances Act absolutely prohibits the use of marijuana for any legal purpose, and classifies it as a banned Schedule I drug. It cannot be legally prescribed as medicine by a physician. And, the federal regulation supersedes any state regulation, so that under federal law California medical marijuana statutes do not provide a legal defense for cultivating or possessing marijuana-even with a physician's recommendation for medical use. © 2009 California Police Chiefs Assn. iv All Rights Reserved 65A-59 CALIFORNIA LAW Although California law generally prohibits the cultivation, possession, transportation, sale, or other transfer of marijuana from one person to another, since late 1996 after passage of an initiative (Proposition 215) later codified as the Compassionate Use Act, it has provided a limited affirmative defense to criminal prosecution for those who cultivate, possess, or use limited amounts of marijuana for medicinal purposes as qualified patients with a physician's recommendation or their designated primary caregiver or cooperative. Notwithstanding these limited exceptions to criminal culpability, California law is notably silent on any such available defense for a storefront marijuana dispensary, and California Attorney General Edmund G. Brown, Jr. has recently issued guidelines that generally find marijuana dispensaries to be unprotected and illegal drug-trafficking enterprises except in the rare instance that one can qualify as a true cooperative under California law. A primary caregiver must consistently and regularly assume responsibility for the housing, health, or safety of an authorized medical marijuana user, and nowhere does California law authorize cultivating or providing marijuana-medical or non-medical-for profit. California's Medical Marijuana Program Act (Senate Bill 420) provides further guidelines for mandated county programs for the issuance of identification cards to authorized medical marijuana users on a voluntary basis, for the chief purpose of giving them a means of certification to show law enforcement officers if such persons are investigated for an offense involving marijuana. This system is currently under challenge by the Counties of San Bernardino and San Diego and Sheriff Gary Penrod, pending a decision on review by the U.S. Supreme Court, as is California's right to permit any legal use of marijuana in light of federal law that totally prohibits any personal cultivation, possession, sale, transportation, or use of this substance whatsoever, whether for medical or non-medical purposes. PROBLEMS POSED BY MARIJUANA DISPENSARIES Marijuana dispensaries are commonly large money-making enterprises that will sell marijuana to most anyone who produces a physician's written recommendation for its medical use. These recommendations can be had by paying unscrupulous physicians a fee and claiming to have most any malady, even headaches. While the dispensaries will claim to receive only donations, no marijuana will change hands without an exchange of money. These operations have been tied to organized criminal gangs, foster large grow operations, and are often multi-million-dollar profit centers. Because they are repositories of valuable marijuana crops and large amounts of cash, several operators of dispensaries have been attacked and murdered by armed robbers both at their storefronts and homes, and such places have been regularly burglarized. Drug dealing, sales to minors, loitering, heavy vehicle and foot traffic in retail areas, increased noise, and robberies of customers just outside dispensaries are also common ancillary byproducts of their operations. To repel store invasions, firearms are often kept on hand inside dispensaries, and firearms are used to hold up their proprietors. These dispensaries are either linked to large marijuana grow operations or encourage home grows by buying marijuana to dispense. And, just as destructive fires and unhealthful mold in residential neighborhoods are often the result of large indoor home grows designed to supply dispensaries, money laundering also naturally results from dispensaries' likely unlawful operations. © 2009 California Police Chiefs Assn. V All Rights Reserved 65A-60 LOCAL GOVERNMENTAL RESPONSES Local governmental bodies can impose a moratorium on the licensing of marijuana dispensaries while investigating this issue; can ban this type of activity because it violates federal law; can use zoning to control the dispersion of dispensaries and the attendant problems that accompany them in unwanted areas; and can condition their operation on not violating any federal or state law, which is akin to banning them, since their primary activities will always violate federal law as it now exists- and almost surely California law as well. LIABILITY While highly unlikely, local public officials, including county supervisors and city council members, could potentially be charged and prosecuted for aiding and abetting criminal acts by authorizing and licensing marijuana dispensaries if they do not qualify as "cooperatives" under California law, which would be a rare occurrence. Civil liability could also result. ENFORCEMENT OF MARIJUANA LAWS While the Drug Enforcement Administration has been very active in raiding large-scale marijuana dispensaries in California in the recent past, and arresting and prosecuting their principals under federal law in selective cases, the new U.S. Attorney General, Eric Holder, Jr., has very recently announced a major change of federal position in the enforcement of federal drug laws with respect to marijuana dispensaries. It is to target for prosecution only marijuana dispensaries that are exposed as fronts for drug trafficking. It remains to be seen what standards and definitions will be used to determine what indicia will constitute a drug trafficking operation suitable to trigger investigation and enforcement under the new federal administration. Some counties, like law enforcement agencies in the County of San Diego and County of Riverside, have been aggressive in confronting and prosecuting the operators of marijuana dispensaries under state law. Likewise, certain cities and counties have resisted granting marijuana dispensaries business licenses, have denied applications, or have imposed moratoria on such enterprises. Here, too, the future is uncertain, and permissible legal action with respect to marijuana dispensaries may depend on future court decisions not yet handed down. Largely because the majority of their citizens have been sympathetic and projected a favorable attitude toward medical marijuana patients, and have been tolerant of the cultivation and use of marijuana, other local public officials in California cities and counties, especially in Northern California, have taken a "hands off' attitude with respect to prosecuting marijuana dispensary operators or attempting to close down such operations. But, because of the life safety hazards caused by ensuing fires that have often erupted in resultant home grow operations, and the violent acts that have often shadowed dispensaries, some attitudes have changed and a few political entities have reversed course after having previously licensed dispensaries and authorized liberal permissible amounts of marijuana for possession by medical marijuana patients in their jurisdictions. These "patients" have most often turned out to be young adults who are not sick at all, but have secured a physician's written recommendation for marijuana use by simply paying the required fee demanded for this document without even first undergoing a physical examination. Too often "medical marijuana" has been used as a smokescreen for those who want to legalize it and profit off it, and storefront dispensaries established as cover for selling an illegal substance for a lucrative return. © 2009 California Police Chiefs Assn. Vi All Rights Reserved 65A-61 WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION Editor: Dennis Tilton, M.A.Ed., M.A.Lit., M.C.J., J.D. Adjunct Professor of Criminal Justice, Political Science, & Public Administration, Upper Iowa University Sheriff's Legal Counsel (Retired), San Bernardino County Sheriff's Department INTRODUCTION In November of 1996, California voters passed Proposition 215. The initiative set out to make marijuana available to people with certain illnesses. The initiative was later supplemented by the Medical Marijuana Program Act. Across the state, counties and municipalities have varied in their responses to medical marijuana. Some have allowed businesses to open and provide medical marijuana. Others have disallowed all such establishments within their borders. Several once issued business licenses allowing medical marijuana stores to operate, but no longer do so. This paper discusses the legality of both medical marijuana and the businesses that make it available, and more specifically, the problems associated with medical marijuana and marijuana dispensaries, under whatever name they operate. FEDERAL LAW Federal law clearly and unequivocally states that all marijuana-related activities are illegal. Consequently, all people engaged in such activities are subject to federal prosecution. The United States Supreme Court has ruled that this federal regulation supersedes any state's regulation of marijuana - even California's. (Gonzales v. Raich (2005) 125 S.Ct. 2195, 2215.) "The Supremacy Clause unambiguously provides that if there is any conflict between federal law and state law, federal law shall prevail." (Gonzales v. Raich, supra.) Even more recently, the 9ch Circuit Court of Appeals found that there is no fundamental right under the United States Constitution to even use medical marijuana. (Raich v. Gonzales (9th Cir. 2007) 500 F.3d 850, 866.) In Gonzales v. Raich, the High Court declared that, despite the attempts of several states to partially legalize marijuana, it continues to be wholly illegal since it is classified as a Schedule I drug under federal law. As such, there are no exceptions to its illegality. (21 USC secs. 812(c), 841(a)(1).) Over the past thirty years, there have been several attempts to have marijuana reclassified to a different schedule which would permit medical use of the drug. All of these attempts have failed. (See Gonzales v. Raich (2005) 125 S.Ct. 2195, fn 23.) The mere categorization of marijuana as "medical" by some states fails to carve out any legally recognized exception regarding the drug. Marijuana, in any form, is neither valid nor legal. Clearly the United States Supreme Court is the highest court in the land. Its decisions are final and binding upon all lower courts. The Court invoked the United States Supremacy Clause and the Commerce Clause in reaching its decision. The Supremacy Clause declares that all laws made in pursuance of the Constitution shall be the "supreme law of the land" and shall be legally superior to any conflicting provision of a state constitution or law. I The Commerce Clause states that "the © 2009 California Police Chiefs Assn. All Rights Reserved 65A-62 Congress shall have power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."2 Gonzales v. Raich addressed the concerns of two California individuals growing and using marijuana under California's medical marijuana statute. The Court explained that under the Controlled Substances Act marijuana is a Schedule I drug and is strictly regulated.3 "Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. ,4 (21 USC sec. 812(b)(1).) The Court ruled that the Commerce Clause is applicable to California individuals growing and obtaining marijuana for their own personal, medical use. Under the Supremacy Clause, the federal regulation of marijuana, pursuant to the Commerce Clause, supersedes any state's regulation, including California's. The Court found that the California statutes did not provide any federal defense if a person is brought into federal court for cultivating or possessing marijuana. Accordingly, there is no federal exception for the growth, cultivation, use or possession of marijuana and all such activity remains illegal.5 California's Compassionate Use Act of 1996 and Medical Marijuana Program Act of 2004 do not create an exception to this federal law. All marijuana activity is absolutely illegal and subject to federal regulation and prosecution. This notwithstanding, on March 19, 2009, U.S. Attorney General Eric Holder, Jr. announced that under the new Obama Administration the U.S. Department of Justice plans to target for prosecution only those marijuana dispensaries that use medical marijuana dispensing as a front for dealers of illegal drugs.b CALIFORNIA LAW Generally, the possession, cultivation, possession for sale, transportation, distribution, furnishing, and giving away of marijuana is unlawful under California state statutory law. (See Cal. Health & Safety Code secs. 11357-11360.) But, on November 5, 1996, California voters adopted Proposition 215, an initiative statute authorizing the medical use of marijuana.7 The initiative added California Health and Safety code section 11362.5, which allows "seriously ill Californians the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician ...."8 The codified section is known as the Compassionate Use Act of 1996.9 Additionally, the State Legislature passed Senate Bill 420 in 2003. It became the Medical Marijuana Program Act and took effect on January 1, 2004.10 This act expanded the definitions of "patient" and "primary caregiver" 11 and created guidelines for identification cards.12 It defined the amount of marijuana that "patients," and "primary caregivers" can possess. 13 It also created a limited affirmative defense to criminal prosecution for qualifying individuals that collectively gather to cultivate medical marijuana, 14 as well as to the crimes of marijuana possession, possession for sale, transportation, sale, furnishing, cultivation, and maintenance of places for storage, use, or distribution of marijuana for a person who qualifies as a "patient," a "primary caregiver," or as a member of a legally recognized "cooperative," as those terms are defined within the statutory scheme. Nevertheless, there is no provision in any of these laws that authorizes or protects the establishment of a "dispensary" or other storefront marijuana distribution operation. Despite their illegality in the federal context, the medical marijuana laws in California are specific. The statutes craft narrow affirmative defenses for particular individuals with respect to enumerated marijuana activity. All conduct, and people engaging in it, that falls outside of the statutes' parameters remains illegal under California law. Relatively few individuals will be able to assert the affirmative defense in the statute. To use it a person must be a "qualified patient," "primary caregiver," or a member of a "cooperative." Once they are charged with a crime, if a person can prove an applicable legal status, they are entitled to assert this statutory defense. © 2009 California Police Chiefs Assn. 2 All Rights Reserved 65A-63 Former California Attorney General Bill Lockyer has also spoken about medical marijuana, and strictly construed California law relating to it. His office issued a bulletin to California law enforcement agencies on June 9, 2005. The office expressed the opinion that Gonzales v. Raich did not address the validity of the California statutes and, therefore, had no effect on California law. The office advised law enforcement to not change their operating procedures. Attorney General Lockyer made the recommendation that law enforcement neither arrest nor prosecute "individuals within the legal scope of California's Compassionate Use Act." Now the current California Attorney General, Edmund G. Brown, Jr., has issued guidelines concerning the handling of issues relating to California's medical marijuana laws and marijuana dispensaries. The guidelines are much tougher on storefront dispensaries-generally finding them to be unprotected, illegal drug-trafficking enterprises if they do not fall within the narrow legal definition of a "cooperative"-than on the possession and use of marijuana upon the recommendation of a physician. When California's medical marijuana laws are strictly construed, it appears that the decision in Gonzales v. Raich does affect California law. However, provided that federal law does not preempt California law in this area, it does appear that the California statutes offer some legal protection to "individuals within the legal scope of the acts. The medical marijuana laws speak to patients, primary caregivers, and true collectives. These people are expressly mentioned in the statutes, and, if their conduct comports to the law, they may have some state legal protection for specified marijuana activity. Conversely, all marijuana establishments that fall outside the letter and spirit of the statutes, including dispensaries and storefront facilities, are not legal. These establishments have no legal protection. Neither the former California Attorney General's opinion nor the current California Attorney General's guidelines present a contrary view. Nevertheless, without specifically addressing marijuana dispensaries, Attorney General Brown has sent his deputies attorney general to defend the codified Medical Marijuana Program Act against court challenges, and to advance the position that the state's regulations promulgated to enforce the provisions of the codified Compassionate Use Act (Proposition 215), including a statewide database and county identification card systems for marijuana patients authorized by their physicians to use marijuana, are all valid. 1. Conduct California Health and Safety Code sections 11362.765 and 11362.775 describe the conduct for which the affirmative defense is available. If a person qualifies as a "patient," "primary caregiver," or is a member of a legally recognized "cooperative," he or she has an affirmative defense to possessing a defined amount of marijuana. Under the statutes no more than eight ounces of dried marijuana can be possessed. Additionally, either six mature or twelve immature plants may be possessed. 15 If a person claims patient or primary caregiver status, and possesses more than this amount of marijuana, he or she can be prosecuted for drug possession. The qualifying individuals may also cultivate, plant, harvest, dry, and/or process marijuana, but only while still strictly observing the permitted amount of the drug. The statute may also provide a limited affirmative defense for possessing marijuana for sale, transporting it, giving it away, maintaining a marijuana house, knowingly providing a space where marijuana can be accessed, and creating a narcotic nuisance. 16 However, for anyone who cannot lay claim to the appropriate status under the statutes, all instances of marijuana possession, cultivation, planting, harvesting, drying, processing, possession for the purposes of sales, completed sales, giving away, administration, transportation, maintaining of marijuana houses, knowingly providing a space for marijuana activity, and creating a narcotic nuisance continue to be illegal under California law. © 2009 California Police Chiefs Assn. 3 All Rights Reserved 65A-64 2. Patients and Cardholders A dispensary obviously is not a patient or cardholder. A "qualified patient" is an individual with a physician's recommendation that indicates marijuana will benefit the treatment of a qualifying illness. (Cal. H&S Code secs. 11362.5(b)(1)(A) and 11362.7(f).) Qualified illnesses include cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides reliefs' A physician's recommendation that indicates medical marijuana will benefit the treatment of an illness is required before a person can claim to be a medical marijuana patient. Accordingly, such proof is also necessary before a medical marijuana affirmative defense can be claimed. A "person with an identification card" means an individual who is a qualified patient who has applied for and received a valid identification card issued by the State Department of Health Services. (Cal. H&S Code secs. 11362.7(c) and 11362.7(g).) 3. Primary Caregivers The only person or entity authorized to receive compensation for services provided to patients and cardholders is a primary caregiver. (Cal. H&S Code sec. 11362.77(c).) However, nothing in the law authorizes any individual or group to cultivate or distribute marijuana for profit. (Cal. H&S Code sec. 11362.765(a).) It is important to note that it is almost impossible for a storefront marijuana business to gain true primary caregiver status. Businesses that call themselves "cooperatives," but function like storefront dispensaries, suffer this same fate. In People v. Mower, the court was very clear that the defendant had to prove he was a primary caregiver in order to raise the medical marijuana affirmative defense. Mr. Mower was prosecuted for supplying two people with marijuana. 18 He claimed he was their primary caregiver under the medical marijuana statutes. This claim required him to prove he "consistently had assumed responsibility for either one's housing, health, or safety" before he could assert the defense. 19 (Emphasis added.) The key to being a primary caregiver is not simply that marijuana is provided for a patient's health; the responsibility for the health must be consistent; it must be independent of merely providing marijuana for a qualified person; and such a primary caregiver-patient relationship must begin before or contemporaneously with the time of assumption of responsibility for assisting the individual with marijuana. (People v. Mentch (2008) 45 CalAth 274, 283.) Any relationship a storefront marijuana business has with a patient is much more likely to be transitory than consistent, and to be wholly lacking in providing for a patient's health needs beyond just supplying him or her with marijuana. A "primary caregiver" is an individual or facility that has "consistently assumed responsibility for the housing, health, or safety of a patient" over time. (Cal. H&S Code sec. 11362.5(e).) "Consistency" is the key to meeting this definition. A patient can elect to patronize any dispensary that he or she chooses. The patient can visit different dispensaries on a single day or any subsequent day. The statutory definition includes some clinics, health care facilities, residential care facilities, and hospices. But, in light of the holding in People v. Mentch, supra, to qualify as a primary caregiver, more aid to a person's health must occur beyond merely dispensing marijuana to a given customer. Additionally, if more than one patient designates the same person as the primary caregiver, all individuals must reside in the same city or county. And, in most circumstances the primary caregiver must be at least 18 years of age. © 2009 California Police Chiefs Assn. 4 All Rights Reserved 65A-65 The courts have found that the act of signing a piece of paper declaring that someone is a primary caregiver does not necessarily make that person one. (See People ex rel. Lungren v. Peron (1997) 59 Cal.AppAth 1383, 1390: "One maintaining a source of marijuana supply, from which all members of the public qualified as permitted medicinal users may or may not discretionarily elect to make purchases, does not thereby become the party `who has consistently assumed responsibility for the housing, health, or safety' of that purchaser as section 11362.5(e) requires.") The California Legislature had the opportunity to legalize the existence of dispensaries when setting forth what types of facilities could qualify as "primary caregivers." Those included in the list clearly show the Legislature's intent to restrict the definition to one involving a significant and long-term commitment to the patient's health, safety, and welfare. The only facilities which the Legislature authorized to serve as "primary caregivers" are clinics, health care facilities, residential care facilities, home health agencies, and hospices which actually provide medical care or supportive services to qualified patients. (Cal. H&S Code sec. 11362.7(d)(1).) Any business that cannot prove that its relationship with the patient meets these requirements is not a primary caregiver. Functionally, the business is a drug dealer and is subject to prosecution as such. 4. Cooperatives and Collectives According to the California Attorney General's recently issued Guidelines for the Security and Non- Diversion of MarYuana Grown for Medical Use, unless they meet stringent requirements, dispensaries also cannot reasonably claim to be cooperatives or collectives. In passing the Medical Marijuana Program Act, the Legislature sought, in part, to enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation programs. (People v. Urziceanu (2005) 132 Cal.App.4th 747, 881.) The Act added section 11362.775, which provides that "Patients and caregivers who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions" for the crimes of marijuana possession, possession for sale, transportation, sale, furnishing, cultivation, and maintenance of places for storage, use, or distribution of marijuana. However, there is no authorization for any individual or group to cultivate or distribute marijuana for profit. (Cal. H&S Code sec. 11362.77(a).) If a dispensary is only a storefront distribution operation open to the general public, and there is no indication that it has been involved with growing or cultivating marijuana for the benefit of members as a non-profit enterprise, it will not qualify as a cooperative to exempt it from criminal penalties under California's marijuana laws. Further, the common dictionary definition of "collectives" is that they are organizations jointly managed by those using its facilities or services. Legally recognized cooperatives generally possess "the following features: control and ownership of each member is substantially equal; members are limited to those who will avail themselves of the services furnished by the association; transfer of ownership interests is prohibited or limited; capital investment receives either no return or a limited return; economic benefits pass to the members on a substantially equal basis or on the basis of their patronage of the association; members are not personally liable for obligations of the association in the absence of a direct undertaking or authorization by them; death, bankruptcy, or withdrawal of one or more members does not terminate the association; and [the] services of the association are furnished primarily for the use of the members."20 Marijuana businesses, of any kind, do not normally meet this legal definition. © 2009 California Police Chiefs Assn. 5 All Rights Reserved 65A-66 Based on the foregoing, it is clear that virtually all marijuana dispensaries are not legal enterprises under either federal or state law. LAWS IN OTHER STATES Besides California, at the time of publication of this White Paper, thirteen other states have enacted medical marijuana laws on their books, whereby to some degree marijuana recommended or prescribed by a physician to a specified patient may be legally possessed. These states are Alaska, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont, and Washington. And, possession of marijuana under one ounce has now been decriminalized in Massachusetts. 2I STOREFRONT MARIJUANA DISPENSARIES AND COOPERATIVES Since the passage of the Compassionate Use Act of 1996, many storefront marijuana businesses have opened in California." Some are referred to as dispensaries, and some as cooperatives; but it is how they operate that removes them from any umbrella of legal protection. These facilities operate as if they are pharmacies. Most offer different types and grades of marijuana. Some offer baked goods that contain marijuana.23 Monetary donations are collected from the patient or primary caregiver when marijuana or food items are received. The items are not technically sold since that would be a criminal violation of the statutes. 24 These facilities are able to operate because they apply for and receive business licenses from cities and counties. Federally, all existing storefront marijuana businesses are subject to search and closure since they violate federal law. 25 Their mere existence violates federal law. Consequently, they have no right to exist or operate, and arguably cities and counties in California have no authority to sanction them. Similarly, in California there is no apparent authority for the existence of these storefront marijuana businesses. The Medical Marijuana Program Act of 2004 allows patients and primary caregivers to grow and cultivate marijuana, and no one else. 26 Although California Health and Safety Code section 11362.775 offers some state legal protection for true collectives and cooperatives, no parallel protection exists in the statute for any storefront business providing any narcotic. The common dictionary definition of collectives is that they are organizations jointly managed by those using its facilities or services. Legally recognized cooperatives generally possess "the following features: control and ownership of each member is substantially equal; members are limited to those who will avail themselves of the services furnished by the association; transfer of ownership interests is prohibited or limited; capital investment receives either no return or a limited return; economic benefits pass to the members on a substantially equal basis or on the basis of their patronage of the association; members are not personally liable for obligations of the association in the absence of a direct undertaking or authorization by them; death, bankruptcy or withdrawal of one or more members does not terminate the association; and [the] services of the association are furnished primarily for the use of the members."27 Marijuana businesses, of any kind, do not meet this legal definition. Actual medical dispensaries are commonly defined as offices in hospitals, schools, or other institutions from which medical supplies, preparations, and treatments are dispensed. Hospitals, hospices, home health care agencies, and the like are specifically included in the code as primary caregivers as long as they have "consistently assumed responsibility for the housing, health, or safety" of a patient.28 Clearly, it is doubtful that any of the storefront marijuana businesses currently © 2009 California Police Chiefs Assn. 6 All Rights Reserved 65A-67 existing in California can claim that status. Consequently, they are not primary caregivers and are subject to prosecution under both California and federal laws. HOW EXISTING DISPENSARIES OPERATE Despite their clear illegality, some cities do have existing and operational dispensaries. Assuming, arguendo, that they may operate, it may be helpful to review the mechanics of the business. The former Green Cross dispensary in San Francisco illustrates how a typical marijuana dispensary works. 29 A guard or employee may check for medical marijuana cards or physician recommendations at the entrance. Many types and grades of marijuana are usually available. Although employees are neither pharmacists nor doctors, sales clerks will probably make recommendations about what type of marijuana will best relieve a given medical symptom. Baked goods containing marijuana may be available and sold, although there is usually no health permit to sell baked goods. The dispensary will give the patient a form to sign declaring that the dispensary is their "primary caregiver" (a process fraught with legal difficulties). The patient then selects the marijuana desired and is told what the "contribution" will be for the product. The California Health & Safety Code specifically prohibits the sale of marijuana to a patient, so "contributions" are made to reimburse the dispensary for its time and care in making "product" available. However, if a calculation is made based on the available evidence, it is clear that these "contributions" can easily add up to millions of dollars per year. That is a very large cash flow for a "non-profit" organization denying any participation in the retail sale of narcotics. Before its application to renew its business license was denied by the City of San Francisco, there were single days that Green Cross sold $45,000 worth of marijuana. On Saturdays, Green Cross could sell marijuana to forty-three patients an hour. The marijuana sold at the dispensary was obtained from growers who brought it to the store in backpacks. A medium- sized backpack would hold approximately $16,000 worth of marijuana. Green Cross used many different marijuana growers. It is clear that dispensaries are running as if they are businesses, not legally valid cooperatives. Additionally, they claim to be the "primary caregivers" of patients. This is a spurious claim. As discussed above, the term "primary caregiver" has a very specific meaning and defined legal qualifications. A primary caregiver is an individual who has "consistently assumed responsibility for the housing, health, or safety of a patient." 30 The statutory definition includes some clinics, health care facilities, residential care facilities, and hospices. If more than one patient designates the same person as the primary caregiver, all individuals must reside in the same city or county. In most circumstances the primary caregiver must be at least 18 years of age. It is almost impossible for a storefront marijuana business to gain true primary caregiver status. A business would have to prove that it "consistently had assumed responsibility for [a patient's] housing, health, or safety."$1 The key to being a primary caregiver is not simply that marijuana is provided for a patient's health: the responsibility for the patient's health must be consistent. As seen in the Green Cross example, a storefront marijuana business's relationship with a patient is most likely transitory. In order to provide a qualified patient with marijuana, a storefront marijuana business must create an instant "primary caregiver" relationship with him. The very fact that the relationship is instant belies any consistency in their relationship and the requirement that housing, health, or safety is consistently provided. Courts have found that a patient's act of signing a piece of paper declaring that someone is a primary caregiver does not necessarily make that person one. The © 2009 California Police Chiefs Assn. 7 All Rights Reserved 65A-68 consistent relationship demanded by the statute is mere fiction if it can be achieved between an individual and a business that functions like a narcotic retail store. ADVERSE SECONDARY EFFECTS OF MARIJUANA DISPENSARIES AND SIMILIARLY OPERATING COOPERATIVES Of great concern are the adverse secondary effects of these dispensaries and storefront cooperatives. They are many. Besides flouting federal law by selling a prohibited Schedule I drug under the Controlled Substances Act, marijuana dispensaries attract or cause numerous ancillary social problems as byproducts of their operation. The most glaring of these are other criminal acts. ANCILLARY CRIMES A. ARMED ROBBERIES AND MURDERS Throughout California, many violent crimes have been committed that can be traced to the proliferation of marijuana dispensaries. These include armed robberies and murders. For example, as far back as 2002, two home occupants were shot in Willits, California in the course of a home- invasion robbery targeting medical marijuana. 32 And, a series of four armed robberies of a marijuana dispensary in Santa Barbara, California occurred through August 10, 2006, in which thirty dollars and fifteen baggies filled with marijuana on display were taken by force and removed from the premises in the latest holdup. The owner said he failed to report the first three robberies because "medical marijuana is such a controversial issue." 33 On February 25, 2004, in Mendocino County two masked thugs committed a home invasion robbery to steal medical marijuana. They held a knife to a 65-year-old man's throat, and though he fought back, managed to get away with large amounts of marijuana. They were soon caught, and one of the men received a sentence of six years in state prison. 34 And, on August 19, 2005, 18-year-old Demarco Lowrey was "shot in the stomach" and "bled to death" during a gunfight with the business owner when he and his friends attempted a takeover robbery of a storefront marijuana business in the City of San Leandro, California. The owner fought back with the hooded home invaders, and a gun battle ensued. Demarco Lowery was hit by gunfire and "dumped outside the emergency entrance of Children's Hospital Oakland" after the shootout.35 He did not survive.36 Near Hayward, California, on September 2, 2005, upon leaving a marijuana dispensary, a patron of the CCA Cannabis Club had a gun put to his head as he was relieved of over $250 worth of pot. Three weeks later, another break-in occurred at the Garden of Eden Cannabis Club in September of 2005.37 Another known marijuana-dispensary-related murder occurred on November 19, 2005. Approximately six gun- and bat-wielding burglars broke into Les Crane's home in Laytonville, California while yelling, "This is a raid." Les Crane, who owned two storefront marijuana businesses, was at home and shot to death. He received gunshot wounds to his head, arm, and abdomen. 38 Another man present at the time was beaten with a baseball bat. The murderers left the home after taking an unknown sum of U.S. currency and a stash of processed marijuana.39 Then, on January 9, 2007, marijuana plant cultivator Rex Farrance was shot once in the chest and killed in his own home after four masked intruders broke in and demanded money. When the homeowner ran to fetch a firearm, he was shot dead. The robbers escaped with a small amount of © 2009 California Police Chiefs Assn. 8 All Rights Reserved 65A-69 cash and handguns. Investigating officers counted 109 marijuana plants in various phases of cultivation inside the house, along with two digital scales and just under 4 pounds of cultivated marijuana. 40 More recently in Colorado, Ken Gorman, a former gubernatorial candidate and dispenser of marijuana who had been previously robbed over twelve times at his home in Denver, was found murdered by gunshot inside his home. He was a prominent proponent of medical marijuana and the legalization of marijuana. 41 B. BURGLARIES In June of 2007, after two burglarizing youths in Bellflower, California were caught by the homeowner trying to steal the fruits of his indoor marijuana grow, he shot one who was running away, and killed him. 42 And, again in January of 2007, Claremont Councilman Corey Calaycay went on record calling marijuana dispensaries "crime magnets" after a burglary occurred in one in 43 Claremont, California. On July 17, 2006, the El Cerrito City Council voted to ban all such marijuana facilities. It did so after reviewing a nineteen-page report that detailed a rise in crime near these storefront dispensaries in other cities. The crimes included robberies, assaults, burglaries, murders, and attempted murders. 44 Even though marijuana storefront businesses do not currently exist in the City of Monterey Park, California, it issued a moratorium on them after studying the issue in August of 2006.45 After allowing these establishments to operate within its borders, the City of West Hollywood, California passed a similar moratorium. The moratorium was "prompted by incidents of armed burglary at some of the city's eight existing pot stores and complaints from neighbors about increased pedestrian and vehicle traffic and noise ....„46 C. TRAFFIC, NOISE, AND DRUG DEALING Increased noise and pedestrian traffic, including nonresidents in pursuit of marijuana, and out of area criminals in search of prey, are commonly encountered just outside marijuana dispensaries,47 as well as drug-related offenses in the vicinity-like resales of products just obtained inside-since these marijuana centers regularly attract marijuana growers, drug users, and drug traffickers.ag Sharing just purchased marijuana outside dispensaries also regularly takes place.49 Rather than the "seriously ill," for whom medical marijuana was expressly intended '50 "'perfectly healthy' young people frequenting dispensaries" are a much more common sight.5 Patient records seized by law enforcement officers from dispensaries during raids in San Diego County, California in December of 2005 "showed that 72 percent of patients were between 17 and 40 years old ...."52 Said one admitted marijuana trafficker, "The people I deal with are the same faces I was dealing with 12 years ago but now, because of Senate Bill 420, they are supposedly legit. I can totally see why cops are bummed. ,53 Reportedly, a security guard sold half a pound of marijuana to an undercover officer just outside a dispensary in Morro Bay, California. 54 And, the mere presence of marijuana dispensaries encourages illegal growers to plant, cultivate, and transport ever more marijuana, in order to supply and sell their crops to these storefront operators in the thriving medical marijuana dispensary market, so that the national domestic marijuana yield has been estimated to be 35.8 billion dollars, of which a 13.8 billion dollar share is California grown. 55 It is a big business. And, although the operators of some dispensaries will claim that they only accept monetary contributions for the products they © 2009 California Police Chiefs Assn. 9 All Rights Reserved 65A-70 dispense, and do not sell marijuana, a patron will not receive any marijuana until an amount of money acceptable to the dispensary has changed hands. D. ORGANIZED CRIME, MONEY LAUNDERING, AND FIREARMS VIOLATIONS Increasingly, reports have been surfacing about organized crime involvement in the ownership and operation of marijuana dispensaries, including Asian and other criminal street gangs and at least one member of the Armenian Mafia. 56 The dispensaries or "pot clubs" are often used as a front by organized crime gangs to traffic in drugs and launder money. One such gang whose territory included San Francisco and Oakland, California reportedly ran a multi-million dollar business operating ten warehouses in which vast amounts of marijuana plants were grown. 57 Besides seizing over 9,000 marijuana plants during surprise raids on this criminal enterprise's storage facilities, federal officers also confiscated three firearms, 58 which seem to go hand in hand with medical marijuana cultivation and dispensaries. 59 Marijuana storefront businesses have allowed criminals to flourish in California. In the summer of 2007, the City of San Diego cooperated with federal authorities and served search warrants on several marijuana dispensary locations. In addition to marijuana, many weapons were recovered, including a stolen handgun and an M-16 assault rifle. 60 The National Drug Intelligence Center reports that marijuana growers are employing armed guards, using explosive booby traps, and murdering people to shield their crops. Street gangs of all national origins are involved in transporting and distributing marijuana to meet the ever increasing demand for the drug.61 Active Asian gangs have included members of Vietnamese organized crime syndicates who have migrated from Canada to buy homes throughout the United States to use as grow houses. 62 Some or all of the processed harvest of marijuana plants nurtured in these homes then wind up at storefront marijuana dispensaries owned and operated by these gangs. Storefront marijuana businesses are very dangerous enterprises that thrive on ancillary grow operations. Besides fueling marijuana dispensaries, some monetary proceeds from the sale of harvested marijuana derived from plants grown inside houses are being used by organized crime syndicates to fund other legitimate businesses for profit and the laundering of money, and to conduct illegal business operations like prostitution, extortion, and drug trafficking. 63 Money from residential grow operations is also sometimes traded by criminal gang members for firearms, and used to buy drugs, personal vehicles, and additional houses for more grow operations, 64 and along with the illegal income derived from large-scale organized crime-related marijuana production operations comes widespread income tax evasion. 65 E. POISONINGS Another social problem somewhat unique to marijuana dispensaries is poisonings, both intentional and unintentional. On August 16, 2006, the Los Angeles Police Department received two such reports. One involved a security guard who ate a piece of cake extended to him from an operator of a marijuana clinic as a "gift," and soon afterward felt dizzy and disoriented.66 The second incident concerned a UPS driver who experienced similar symptoms after accepting and eating a cookie given to him by an operator of a different marijuana clinic.6 © 2009 California Police Chiefs Assn. 10 All Rights Reserved 65A-71 OTHER ADVERSE SECONDARY IMPACTS IN THE IMMEDIATE VICINITY OF DISPENSARIES Other adverse secondary impacts from the operation of marijuana dispensaries include street dealers lurking about dispensaries to offer a lower price for marijuana to arriving patrons; marijuana smoking in public and in front of children in the vicinity of dispensaries; loitering and nuisances; acquiring marijuana and/or money by means of robbery of patrons going to or leaving dispensaries; an increase in burglaries at or near dispensaries; a loss of trade for other commercial businesses located near dispensaries; the sale at dispensaries of other illegal drugs besides marijuana; an increase in traffic accidents and driving under the influence arrests in which marijuana is implicated; and the failure of marijuana dispensary operators to report robberies to police. 68 SECONDARY ADVERSE IMPACTS IN THE COMMUNITY AT LARGE A. UNJUSTIFIED AND FICTITIOUS PHYSICIAN RECOMMENDATIONS California's legal requirement under California Health and Safety Code section 11362.5 that a physician's recommendation is required for a patient or caregiver to possess medical marijuana has resulted in other undesirable outcomes: wholesale issuance of recommendations by unscrupulous physicians seeking a quick buck, and the proliferation of forged or fictitious physician recommendations. Some doctors link up with a marijuana dispensary and take up temporary residence in a local hotel room where they advertise their appearance in advance, and pass out medical marijuana use recommendations to a line of "patients" at "about $150 a pop."69 Other individuals just make up their own phony doctor recommendations,70 which are seldom, if ever, scrutinized by dispensary employees for authenticity. Undercover DEA agents sportin fake medical marijuana recommendations were readily able to purchase marijuana from a clinic. 1 Far too often, California's medical marijuana law is used as a smokescreen for healthy pot users to get their desired drug, and for proprietors of marijuana dispensaries to make money off them, without suffering any legal repercussions. 72 On March 11, 2009, the Osteopathic Medical Board of California adopted the proposed decision revoking Dr. Alfonso Jimenez's Osteopathic Physician's and Surgeon's Certificate and ordering him to pay $74,323.39 in cost recovery. Dr. Jimenez operated multiple marijuana clinics and advertised his services extensively on the Internet. Based on information obtained from raids on marijuana dispensaries in San Diego, in May of 2006, the San Diego Police Department ran two undercover operations on Dr. Jimenez's clinic in San Diego. In January of 2007, a second undercover operation was conducted by the Laguna Beach Police Department at Dr. Jimenez's clinic in Orange County. Based on the results of the undercover operations, the Osteopathic Medical Board charged Dr. Jimenez with gross negligence and repeated negligent acts in the treatment of undercover operatives posing as patients. After a six-day hearing, the Administrative Law Judge (ALJ) issued her decision finding that Dr. Jimenez violated the standard of care by committing gross negligence and repeated negligence in care, treatment, and management of patients when he, among other things, issued medical marijuana recommendations to the undercover agents without conducting adequate medical examinations, failed to gain proper informed consent, and failed to consult with any primary care and/or treating physicians or obtain and review prior medical records before issuing medical marijuana recommendations. The ALJ also found Dr. Jimenez engaged in dishonest behavior by preparing false and/or misleading medical records and disseminating false and misleading advertising to the public, including representing himself as a "Cannabis Specialist" and "Qualified Medical Marijuana Examiner" when no such formal specialty or qualification existed. Absent any © 2009 California Police Chiefs Assn. 11 All Rights Reserved 65A-72 requested administrative agency reconsideration or petition for court review, the decision was to become effective April 24, 2009. B. PROLIFERATION OF GROW HOUSES IN RESIDENTIAL AREAS In recent years the proliferation of grow houses in residential neighborhoods has exploded. This phenomenon is country wide, and ranges from the purchase for purpose of marijuana grow operations of small dwellings to "high priced McMansions ....i73 Mushrooming residential marijuana grow operations have been detected in California, Connecticut, Florida, Georgia, New Hampshire, North Carolina, Ohio, South Carolina, and Texas. 74 In 2007 alone, such illegal operations were detected and shut down by federal and state law enforcement officials in 41 houses in California, 50 homes in Florida, and 11 homes in New Hampshire. 75 Since then, the number of residences discovered to be so impacted has increased exponentially. Part of this recent influx of illicit residential grow operations is because the "THC-rich `B.C. bud' strain" of marijuana originally produced in British Columbia "can be grown only in controlled indoor environments," and the Canadian market is now reportedly saturated with the product of "competin? Canadian gangs," often Asian in composition or outlaw motorcycle gangs like the Hells Angels. 6 Typically, a gutted house can hold about 1,000 plants that will each yield almost half a pound of smokable marijuana; this collectively nets about 500 pounds of usable marijuana per harvest, with an average of three to four harvests per year.77 With a street value of $3,000 to $5,000 per pound" for high-potency marijuana, and such multiple harvests, "a successful grow house can bring in between $4.5 million and $10 million a year ...."78 The high potency of hydroponically grown marijuana can command a price as much as six times higher than commercial grade marijuana. 79 C. LIFE SAFETY HAZARDS CREATED BY GROW HOUSES In Humboldt County, California, structure fires caused by unsafe indoor marijuana grow operations have become commonplace. The city of Arcata, which sports four marijuana dispensaries, was the site of a house fire in which a fan had fallen over and ignited a fire; it had been turned into a grow house by its tenant. Per Arcata Police Chief Randy Mendosa, altered and makeshift "no code" electrical service connections and overloaded wires used to operate high-powered grow lights and fans are common causes of the fires. Large indoor marijuana growing operations can create such excessive draws of electricity that PG&E power pole transformers are commonly blown. An average 1,500- square-foot tract house used for growing marijuana can generate monthly electrical bills from $1,000 to $3,000 per month. From an environmental standpoint, the carbon footprint from greenhouse gas emissions created by large indoor marijuana grow operations should be a major concern for every community in terms of complying with Air Board AB-32 regulations, as well as other greenhouse gas reduction policies. Typically, air vents are cut into roofs, water seeps into carpeting, windows are blacked out, holes are cut in floors, wiring is jury-rigged, and electrical circuits are overloaded to operate grow lights and other apparatus. When fires start, they spread quickly. The May 31, 2008 edition of the Los Angeles Times reported, "Law enforcement officials estimate that as many as 1,000 of the 7,500 homes in this Humboldt County community are being used to cultivate marijuana, slashing into the housing stock, spreading building-safety problems and sowing neighborhood discord." Not surprisingly, in this bastion of liberal pot possession rules that authorized the cultivation of up to 99 plants for medicinal purpose, most structural fires in the community of Arcata have been of late associated with marijuana cultivation.80 Chief of Police Mendosa clarified that the actual number of marijuana grow houses in Arcata has been an ongoing subject of public debate. Mendosa added, "We know there are numerous grow houses in almost every neighborhood in and around the city, which has been the source of constant citizen complaints." House fires caused by © 2009 California Police Chiefs Assn. 12 All Rights Reserved 65A-73 grower-installed makeshift electrical wiring or tipped electrical fans are now endemic to Humboldt County. 81 Chief Mendosa also observed that since marijuana has an illicit street value of up to $3,000 per pound, marijuana grow houses have been susceptible to violent armed home invasion robberies. Large-scale marijuana grow houses have removed significant numbers of affordable houses from the residential rental market. When property owners discover their rentals are being used as grow houses, the residences are often left with major structural damage, which includes air vents cut into roofs and floors, water damage to floors and walls, and mold. The June 9, 2008 edition of the New York Times shows an unidentified Arcata man tending his indoor grow; the man claimed he can make $25,000 every three months by selling marijuana grown in the bedroom of his rented house. 82 Claims of ostensible medical marijuana growing pursuant to California's medical marijuana laws are being advanced as a mostly false shield in an attempt to justify such illicit operations. Neither is fire an uncommon occurrence at grow houses elsewhere across the nation. Another occurred not long ago in Holiday, Florida. 83 To compound matters further, escape routes for firefighters are often obstructed by blocked windows in grow houses, electric wiring is tampered with to steal electricity, and some residences are even booby-trapped to discourage and repel unwanted intruders. 84 D. INCREASED ORGANIZED GANG ACTIVITIES Along with marijuana dispensaries and the grow operations to support them come members of organized criminal gangs to operate and profit from them. Members of an ethnic Chinese drug gang were discovered to have operated 50 indoor grow operations in the San Francisco Bay area, while Cuban-American crime organizations have been found to be operating grow houses in Florida and elsewhere in the South. A Vietnamese drug ring was caught operating 19 grow houses in Seattle and Puget Sound, Washington. 85 In July of 2008, over 55 Asian gang members were indicted for narcotics trafficking in marijuana and ecstasy, including members of the Hop Sing Gang that had been actively operating marijuana grow operations in Elk Grove and elsewhere in the vicinity of Sacramento, California. 86 E. EXPOSURE OF MINORS TO MARIJUANA Minors who are exposed to marijuana at dispensaries or residences where marijuana plants are grown may be subtly influenced to regard it as a generally legal drug, and inclined to sample it. In grow houses, children are exposed to dangerous fire and health conditions that are inherent in indoor grow operations.87 Dispensaries also sell marijuana to minors.ss F. IMPAIRED PUBLIC HEALTH Indoor marijuana grow operations emit a skunk-like odor, 89 and foster generally unhealthy conditions like allowing chemicals and fertilizers to be placed in the open, an increased carbon dioxide level within the grow house, and the accumulation of mold, 90 all of which are dangerous to any children or adults who may be living in the residence, 91 although many grow houses are uninhabited. © 2009 California Police Chiefs Assn. 13 All Rights Reserved 65A-74 G. LOSS OF BUSINESS TAX REVENUE When business suffers as a result of shoppers staying away on account of traffic, blight, crime, and the undesirability of a particular business district known to be frequented by drug users and traffickers, and organized criminal gang members, a city's tax revenues necessarily drop as a direct consequence. H. DECREASED QUALITY OF LIFE IN DETERIORATING NEIGHBORHOODS, BOTH BUSINESS AND RESIDENTIAL Marijuana dispensaries bring in the criminal element and loiterers, which in turn scare off potential business patrons of nearby legitimate businesses, causing loss of revenues and deterioration of the affected business district. Likewise, empty homes used as grow houses emit noxious odors in residential neighborhoods, project irritating sounds of whirring fans, 92 and promote the din of vehicles coming and going at all hours of the day and night. Near harvest time, rival growers and other uninvited enterprising criminals sometimes invade grow houses to beat "clip crews" to the site and rip off mature plants ready for harvesting. As a result, violence often erupts from confrontations in the affected residential neighborhood.93 ULTIMATE CONCLUSIONS REGARDING ADVERSE SECONDARY EFFECTS On balance, any utility to medical marijuana patients in care giving and convenience that marijuana dispensaries may appear to have on the surface is enormously outweighed by a much darker reality that is punctuated by the many adverse secondary effects created by their presence in communities, recounted here. These drug distribution centers have even proven to be unsafe for their own proprietors. POSSIBLE LOCAL GOVERNMENTAL RESPONSES TO MARIJUANA DISPENSARIES A. IMPOSED MORATORIA BY ELECTED LOCAL GOVERNMENTAL OFFICIALS While in the process of investigating and researching the issue of licensing marijuana dispensaries, as an interim measure city councils may enact date-specific moratoria that expressly prohibit the presence of marijuana dispensaries, whether for medical use or otherwise, and prohibiting the sale of marijuana in any form on such premises, anywhere within the incorporated boundaries of the city until a specified date. Before such a moratorium's date of expiration, the moratorium may then either be extended or a city ordinance enacted completely prohibiting or otherwise restricting the establishment and operation of marijuana dispensaries, and the sale of all marijuana products on such premises. County supervisors can do the same with respect to marijuana dispensaries sought to be established within the unincorporated areas of a county. Approximately 80 California cities, including the cities of Antioch, Brentwood, Oakley, Pinole, and Pleasant Hill, and 6 counties, including Contra Costa County, have enacted moratoria banning the existence of marijuana dispensaries. In a novel approach, the City of Arcata issued a moratorium on any new dispensaries in the downtown area, based on no agricultural activities being permitted to occur there.94 © 2009 California Police Chiefs Assn. 14 All Rights Reserved 65A-75 B. IMPOSED BANS BY ELECTED LOCAL GOVERNMENTAL OFFICIALS While the Compassionate Use Act of 1996 permits seriously ill persons to legally obtain and use marijuana for medical purposes upon a physician's recommendation, it is silent on marijuana dispensaries and does not expressly authorize the sale of marijuana to patients or primary caregivers. Neither Proposition 215 nor Senate Bill 420 specifically authorizes the dispensing of marijuana in any form from a storefront business. And, no state statute presently exists that expressly permits the licensing or operation of marijuana dispensaries. 95 Consequently, approximately 39 California cities, including the Cities of Concord and San Pablo, and 2 counties have prohibited marijuana dispensaries within their respective geographical boundaries, while approximately 24 cities, including the City of Martinez, and 7 counties have allowed such dispensaries to do business within their jurisdictions. Even the complete prohibition of marijuana dispensaries within a given locale cannot be found to run afoul of current California law with respect to permitted use of marijuana for medicinal purposes, so long as the growing or use of medical marijuana by a city or county resident in conformance with state law is not proscribed. 96 In November of 2004, the City of Brampton in Ontario, Canada passed The Grow House Abatement By-law, which authorized the city council to appoint inspectors and local police officers to inspect suspected grow houses and render safe hydro meters, unsafe wiring, booby traps, and any violation of the Fire Code or Building Code, and remove discovered controlled substances and ancillary equipment designed to grow and manufacture such substances, at the involved homeowner's cost.97 And, after state legislators became appalled at the proliferation of for-profit residential grow operations, the State of Florida passed the Marijuana Grow House Eradication act (House Bill 173) in June of 2008. The governor signed this bill into law, making owning a house for the purpose of cultivating, packaging, and distributing marijuana a third-degree felony; growing 25 or more marijuana plants a second- degree felony; and growing "25 or more marijuana plants in a home with children present" a first- degree felony. 98 It has been estimated that approximately 17,500 marijuana grow operations were active in late 2007.99 To avoid becoming a dumping ground for organized crime syndicates who decide to move their illegal grow operations to a more receptive legislative environment, California and other states might be wise to quickly follow suit with similar bills, for it may already be happening. 100 C. IMPOSED RESTRICTED ZONING AND OTHER REGULATION BY ELECTED LOCAL GOVERNMENTAL OFFICIALS If so inclined, rather than completely prohibit marijuana dispensaries, through their zoning power city and county officials have the authority to restrict owner operators to locate and operate so-called "medical marijuana dispensaries" in prescribed geographical areas of a city or designated unincorporated areas of a county, and require them to meet prescribed licensing requirements before being allowed to do so. This is a risky course of action though for would-be dispensary operators, and perhaps lawmakers too, since federal authorities do not recognize any lawful right for the sale, purchase, or use of marijuana for medical use or otherwise anywhere in the United States, including California. Other cities and counties have included as a condition of licensure for dispensaries that the operator shall "violate no federal or state law," which puts any applicant in a "Catch-22" situation since to federal authorities any possession or sale of marijuana is automatically a violation of federal law. Still other municipalities have recently enacted or revised comprehensive ordinances that address a variety of medical marijuana issues. For example, according to the City of Arcata Community © 2009 California Police Chiefs Assn. 15 All Rights Reserved 65A-76 Development Department in Arcata, California, in response to constant citizen complaints from what had become an extremely serious community problem, the Arcata City Council revised its Land Use Standards for Medical Marijuana Cultivation and Dispensing. In December of 2008, City of Arcata Ordinance #1382 was enacted. It includes the following provisions: "Categories: 1. Personal Use Cooperatives or Collectives Medical Marijuana for Personal Use: An individual qualified patient shall be allowed to cultivate medical marijuana within his/her private residence in conformance with the following standards: 1. Cultivation area shall not exceed 50 square feet and not exceed ten feet (10' in height. a. Cultivation lighting shall not exceed 1200 watts; b. Gas products (C02, butane, etc.) for medical marijuana cultivation or processing is prohibited. C. Cultivation and sale is prohibited as a Home Occupation (sale or dsnensing is prohibited). d. Qualified patient shall reside in the residence where the medical marijuana cultivation occurs; e. Qualified patient shall not participate in medical marijuana cultivation in any other residence. f. Residence kitchen, bathrooms, and primary bedrooms shall not be used primarily for medical marijuana cultivation; g. Cultivation area shall comply with the California Building Code § 1203.4 Natural Ventilation or § 402.3 Mechanical Ventilation. h. The medical marijuana cultivation area shall not adversely affect the health or safety of the nearby residents. 2. City Zoning Administrator my approve up to 100 square foot: a. Documentation showing why the 50 square foot cultivation area standard is not feasible. b. Include written permission from the property owner. C. City Building Official must inspect for California Building Code and Fire Code. d. At a minimum, the medical marijuana cultivation area shall be constructed with a 1- hour firewall assembly of green board. e. Cultivation of medical marijuana for personal use is limited to detached single family residential properties, or the medical marijuana cultivation area shall be limited to a garage or self-contained outside accessory building that is secured, locked, and fully enclosed. Medical Marijuana Cooperatives or Collectives. 1. Allowed with a Conditional Use Permit. 2. In Commercial, Industrial, and Public Facility Zoning Districts. 3. Business form must be a cooperative or collective. 4. Existing cooperative or collective shall be in full compliance within one year. 5. Total number of medical marijuana cooperatives or collectives is limited to four and ultimately two. 6. Special consideration if located within a. A 300 foot radius from any existing residential zoning district, b. Within 500 feet of any other medical marijuana cooperative or collective. © 2009 California Police Chiefs Assn. 16 All Rights Reserved 65A-77 C. Within 500 feet from any existing public park, playground, day care, or school. 7. Source of medical marijuana. a. Permitted Cooperative or Collective. On-site medical marijuana cultivation shall not exceed twenty-five (25) percent of the total floor area, but in no case greater than 1,500 square feet and not exceed ten feet (10') in height. b. Off-site Permitted Cultivation. Use Permit application and be updated annually. C. Qualified Patients. Medical marijuana acquired from an individual qualified patient shall received no monetary remittance, and the qualified patient is a member of the medical marijuana cooperative or collective. Collective or cooperative may credit its members for medical marijuana provided to the collective or cooperative, which they may allocate to other members. 8. Operations Manual at a minimum include the following information: a. Staff screening process including appropriate background checks. b. Operating hours. C. Site, floor plan of the facility. d. Security measures located on the premises, including but not limited to, lighting, alarms, and automatic law enforcement notification. e. Screening, registration and validation process for qualified patients. f. Qualified patient records acquisition and retention procedures. g. Process for tracking medical marijuana quantities and inventory controls including on-site cultivation, processing, and/or medical marijuana products received from outside sources. h. Measures taken to minimize or offset energy use from the cultivation or processing of medical marijuana. i. Chemicals stored, used and any effluent discharged into the City's wastewater and/or storm water system. 9. Operating Standards. a. No dispensing medical marijuana more than twice a day. b. Dispense to an individual qualified patient who has a valid, verified physician's recommendation. The medical marijuana cooperative or collective shall verify that the physician's recommendation is current and valid. C. Display the client rules and/or regulations at each building entrance. d. Smoking, ingesting or consuming medical marijuana on the premises or in the vicinity is prohibited. e. Persons under the age of eighteen (18) are precluded from entering the premises. f. No on-site display of marijuana plants. g. No distribution of live plants, starts and clones on through Use Permit. h. Permit the on-site display or sale of marijuana paraphernalia only through the Use Permit. i. Maintain all necessary permits, and pay all appropriate taxes. Medical marijuana cooperatives or collectives shall also provide invoices to vendors to ensure vendor's tax liability responsibility; j. Submit an "Annual Performance Review Report" which is intended to identify effectiveness of the approved Use Permit, Operations Manual, and Conditions of Approval, as well as the identification and implementation of additional procedures as deemed necessary. k. Monitoring review fees shall accompany the "Annual Performance Review Report" for costs associated with the review and approval of the report. 10. Permit Revocation or Modification. A use permit may be revoked or modified for non- compliance with one or more of the items described above." © 2009 California Police Chiefs Assn. 17 All Rights Reserved 65A-78 LIABILITY ISSUES With respect to issuing business licenses to marijuana storefront facilities a very real issue has arisen: counties and cities are arguably aiding and abetting criminal violations of federal law. Such actions clearly put the counties permitting these establishments in very precarious legal positions. Aiding and abetting a crime occurs when someone commits a crime, the person aiding that crime knew the criminal offender intended to commit the crime, and the person aiding the crime intended to assist the criminal offender in the commission of the crime. The legal definition of aiding and abetting could be applied to counties and cities allowing marijuana facilities to open. A county that has been informed about the Gonzales v. Raich decision knows that all marijuana activity is federally illegal. Furthermore, such counties know that individuals involved in the marijuana business are subject to federal prosecution. When an individual in California cultivates, possesses, transports, or uses marijuana, he or she is committing a federal crime. A county issuing a business license to a marijuana facility knows that the people there are committing federal crimes. The county also knows that those involved in providing and obtaining marijuana are intentionally violating federal law. This very problem is why some counties are re-thinking the presence of marijuana facilities in their communities. There is a valid fear of being prosecuted for aiding and abetting federal drug crimes. Presently, two counties have expressed concern that California's medical marijuana statutes have placed them in such a precarious legal position. Because of the serious criminal ramifications involved in issuing business permits and allowing storefront marijuana businesses to operate within their borders, San Diego and San Bernardino Counties filed consolidated lawsuits against the state seeking to prevent the State of California from enforcing its medical marijuana statutes which potentially subject them to criminal liability, and squarely asserting that California medical marijuana laws are preempted by federal law in this area. After California's medical marijuana laws were all upheld at the trial level, California's Fourth District Court of Appeal found that the State of California could mandate counties to adopt and enforce a voluntary medical marijuana identification card system, and the appellate court bypassed the preemption issue by finding that San Diego and San Bernardino Counties lacked standing to raise this challenge to California's medical marijuana laws. Following this state appellate court decision, independent petitions for review filed by the two counties were both denied by the California Supreme Court. Largely because of the quandary that county and city peace officers in California face in the field when confronted with alleged medical marijuana with respect to enforcement of the total federal criminal prohibition of all marijuana, and state exemption from criminal penalties for medical marijuana users and caregivers, petitions for a writ of certiorari were then separately filed by the two counties seeking review of this decision by the United States Supreme Court in the consolidated cases of County of San Diego, County of San Bernardino, and Gary Penrod, as Sheriff of the County of San Bernardino v. San Diego Norml, State of California, and Sandra Shewry, Director of the California Department of Health Services in her official capacity, Ct.App. Case No. D-5-333.) The High Court has requested the State of California and other interested parties to file responsive briefs to the two counties' and Sheriff Penrod's writ petitions before it decides whether to grant or deny review of these consolidated cases. The petitioners would then be entitled to file a reply to any filed response. It is anticipated that the U.S. Supreme Court will formally grant or deny review of these consolidated cases in late April or early May of 2009. © 2009 California Police Chiefs Assn. 18 All Rights Reserved 65A-79 In another case, City of Garden Grove v. Superior Court (2007) 157 Cal.AppAth 355, although the federal preemption issue was not squarely raised or addressed in its decision, California's Fourth District Court of Appeal found that public policy considerations allowed a city standing to challenge a state trial court's order directing the return by a city police department of seized medical marijuana to a person determined to be a patient. After the court-ordered return of this federally banned substance was upheld at the intermediate appellate level, and not accepted for review by the California Supreme Court, a petition for a writ of certiorari was filed by the City of Garden Grove to the U.S. Supreme Court to consider and reverse the state appellate court decision. But, that petition was also denied. However, the case of People v. Kelly (2008) 163 Cal.AppAth 124-in which a successful challenge was made to California's Medical Marijuana Program's maximum amounts of marijuana and marijuana plants permitted to be possessed by medical marijuana patients (Cal. H&S Code sec. 11362.77 et seq.), which limits were found at the court of appeal level to be without legal authority for the state to impose-has been accepted for review by the California Supreme Court on the issue of whether this law was an improper amendment to Proposition 215's Compassionate Use Act of 1996. A SAMPLING OF EXPERIENCES WITH MARIJUANA DISPENSARIES MARIJUANA DISPENSARIES-THE SAN DIEGO STORY After the passage of Proposition 215 in 1996, law enforcement agency representatives in San Diego, California met many times to formulate a comprehensive strategy of how to deal with cases that may arise out of the new law. In the end it was decided to handle the matters on a case-by-case basis. In addition, questionnaires were developed for patient, caregiver, and physician interviews. At times patients without sales indicia but large grows were interviewed and their medical records reviewed in making issuing decisions. In other cases where sales indicia and amounts supported a finding of sales the cases were pursued. At most, two cases a month were brought for felony prosecution. In 2003, San Diego County's newly elected District Attorney publicly supported Prop. 215 and wanted her newly created Narcotics Division to design procedures to ensure patients were not caught up in case prosecutions. As many already know, law enforcement officers rarely arrest or seek prosecution of a patient who merely possesses personal use amounts. Rather, it is those who have sales amounts in product or cultivation who are prosecuted. For the next two years the District Attorney's Office proceeded as it had before. But, on the cases where the patient had too many plants or product but not much else to show sales-the DDAs assigned to review the case would interview and listen to input to respect the patient's and the DA's position. Some cases were rejected and others issued but the case disposition was often generous and reflected a "sin no more" view. All of this changed after the passage of SB 420. The activists and pro-marijuana folks started to push the envelope. Dispensaries began to open for business and physicians started to advertise their availability to issue recommendations for the purchase of medical marijuana. By spring of 2005 the first couple of dispensaries opened up-but they were discrete. This would soon change. By that summer, 7 to 10 dispensaries were open for business, and they were selling marijuana openly. In fact, the local police department was doing a small buy/walk project and one of its target dealers said he was out of pot but would go get some from the dispensary to sell to the undercover officer (UC); he did. It was the proliferation of dispensaries and ancillary crimes that prompted the San Diego Police Chief (the Chief was a Prop. 215 supporter who sparred with the Fresno DEA in his prior job over this issue) to authorize his officers to assist DEA. © 2009 California Police Chiefs Assn. 19 All Rights Reserved 65A-80 The Investigation San Diego DEA and its local task force (NTF) sought assistance from the DA's Office as well as the U.S. Attorney's Office. Though empathetic about being willing to assist, the DA's Office was not sure how prosecutions would fare under the provisions of SB 420. The U.S. Attorney had the easier road but was noncommittal. After several meetings it was decided that law enforcement would work on using undercover operatives (UCs) to buy, so law enforcement could see exactly what was happening in the dispensaries. The investigation was initiated in December of 2005, after NTF received numerous citizen complaints regarding the crime and traffic associated with "medical marijuana dispensaries." The City of San Diego also saw an increase in crime related to the marijuana dispensaries. By then approximately 20 marijuana dispensaries had opened and were operating in San Diego County, and investigations on 15 of these dispensaries were initiated. During the investigation, NTF learned that all of the business owners were involved in the transportation and distribution of large quantities of marijuana, marijuana derivatives, and marijuana food products. In addition, several owners were involved in the cultivation of high grade marijuana. The business owners were making significant profits from the sale of these products and not properly reporting this income. Undercover Task Force Officers (TFO's) and SDPD Detectives were utilized to purchase marijuana and marijuana food products from these businesses. In December of 2005, thirteen state search warrants were executed at businesses and residences of several owners. Two additional follow-up search warrants and a consent search were executed the same day. Approximately 977 marijuana plants from seven indoor marijuana grows, 564.88 kilograms of marijuana and marijuana food products, one gun, and over $58,000 U.S. currency were seized. There were six arrests made during the execution of these search warrants for various violations, including outstanding warrants, possession of marijuana for sale, possession of psilocybin mushrooms, obstructing a police officer, and weapons violations. However, the owners and clerks were not arrested or prosecuted at this time just those who showed up with weapons or product to sell. Given the fact most owners could claim mistake of law as to selling (though not a legitimate defense, it could be a jury nullification defense) the DA's Office decided not to file cases at that time. It was hoped that the dispensaries would feel San Diego was hostile ground and they would do business elsewhere. Unfortunately this was not the case. Over the next few months seven of the previously targeted dispensaries opened, as well as a slew of others. Clearly prosecutions would be necessary. To gear up for the re-opened and new dispensaries prosecutors reviewed the evidence and sought a second round of UC buys wherein the UC would be buying for themselves and they would have a second UC present at the time acting as UC 1's caregiver who also would buy. This was designed to show the dispensary was not the caregiver. There is no authority in the law for organizations to act as primary caregivers. Caregivers must be individuals who care for a marijuana patient. A primary caregiver is defined by Proposition 215, as codified in H&S Code section 11362.5(e), as, "For the purposes of this section, 'primary caregiver' means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person." The goal was to show that the stores were only selling marijuana, and not providing care for the hundreds who bought from them. © 2009 California Police Chiefs Assn. 20 All Rights Reserved 65A-81 In addition to the caregiver-controlled buys, another aim was to put the whole matter in perspective for the media and the public by going over the data that was found in the raided dispensary records, as well as the crime statistics. An analysis of the December 2005 dispensary records showed a breakdown of the purported illness and youthful nature of the patients. The charts and other PR aspects played out after the second take down in July of 2006. The final attack was to reveal the doctors (the gatekeepers for medical marijuana) for the fraud they were committing. UCs from the local PD went in and taped the encounters to show that the pot docs did not examine the patients and did not render care at all; rather they merely sold a medical MJ recommendation whose duration depended upon the amount of money paid. In April of 2006, two state and two federal search warrants were executed at a residence and storage warehouse utilized to cultivate marijuana. Approximately 347 marijuana plants, over 21 kilograms of marijuana, and $2,855 U.S. currency were seized. Due to the pressure from the public, the United States Attorney's Office agreed to prosecute the owners of the businesses with large indoor marijuana grows and believed to be involved in money laundering activities. The District Attorney's Office agreed to prosecute the owners in the other investigations. In June of 2006, a Federal Grand Jury indicted six owners for violations of Title 21 USC, sections 846 and 841(a)(1), Conspiracy to Distribute Marijuana; sections 846 and 841(a), Conspiracy to Manufacture Marijuana; and Title 18 USC, Section 2, Aiding and Abetting. In July of 2006, 11 state and 11 federal search warrants were executed at businesses and residences associated with members of these businesses. The execution of these search warrants resulted in the arrest of 19 people, seizure of over $190,000 in U.S. currency and other assets, four handguns, one rifle, 405 marijuana plants from seven grows, and over 329 kilograms of marijuana and marijuana food products. Following the search warrants, two businesses reopened. An additional search warrant and consent search were executed at these respective locations. Approximately 20 kilograms of marijuana and 32 marijuana plants were seized. As a result, all but two of the individuals arrested on state charges have pled guilty. Several have already been sentenced and a few are still awaiting sentencing. All of the individuals indicted federally have also pled guilty and are awaiting sentencing. After the July 2006 search warrants a joint press conference was held with the U.S. Attorney and District Attorney, during which copies of a complaint to the medical board, photos of the food products which were marketed to children, and the charts shown below were provided to the media. Directly after these several combined actions, there were no marijuana distribution businesses operating in San Diego County. Law enforcement agencies in the San Diego region have been able to successfully dismantle these businesses and prosecute the owners. As a result, medical marijuana advocates have staged a number of protests demanding DEA allow the distribution of marijuana. The closure of these businesses has reduced crime in the surrounding areas. © 2009 California Police Chiefs Assn. 21 All Rights Reserved 65A-82 The execution of search warrants at these businesses sent a powerful message to other individuals operating marijuana distribution businesses that they are in violation of both federal law and California law. Press Materials: Reported Crime at Marijuana Dispensaries From January 1, 2005 through June 23, 2006 18 16 14 12 10 8 6 4 2 0 Information showing the dispensaries attracted crime: The marijuana dispensaries were targets of violent crimes because of the amount of marijuana, currency, and other contraband stored inside the businesses. From January 1, 2005 through June 23, 2006, 24 violent crimes were reported at marijuana dispensaries. An analysis of financial records seized from the marijuana dispensaries showed several dispensaries were grossing over $300,000 per month from selling marijuana and marijuana food products. The majority of customers purchased marijuana with cash. Crime statistics inadequately reflect the actual number of crimes committed at the marijuana dispensaries. These businesses were often victims of robberies and burglaries, but did not report the crimes to law enforcement on account of fear of being arrested for possession of marijuana in excess of Prop. 215 guidelines. NTF and the San Diego Police Department (SDPD) received numerous citizen complaints regarding every dispensary operating in San Diego County. Because the complaints were received by various individuals, the exact number of complaints was not recorded. The following were typical complaints received: • high levels of traffic going to and from the dispensaries • people loitering in the parking lot of the dispensaries • people smoking marijuana in the parking lot of the dispensaries © 2009 California Police Chiefs Assn. 22 All Rights Reserved 65A-83 Burglary Attempted Criminal Attempted Armed Battery Burglary Threat Robbery Robbery • vandalism near dispensaries • threats made by dispensary employees to employees of other businesses • citizens worried they may become a victim of crime because of their proximity to dispensaries In addition, the following observations (from citizen activists assisting in data gathering) were made about the marijuana dispensaries: • Identification was not requested for individuals who looked under age 18 • Entrance to business was not refused because of lack of identification • Individuals were observed loitering in the parking lots • Child-oriented businesses and recreational areas were situated nearby • Some businesses made no attempt to verify a submitted physician's recommendation Dispensary Patients By Age -Ages 71-75, 4, 0% Ages 66-70, 19, 1 -Ages 76-80, 0, 0% Ages 61-65, 47, 2% _Ages 81-85, 0, 0% Ages 56-60, 89, 30/ Ages 51-55, 173, 60/ Ages 46-50, 210, 7% 0 Ages 41-45, 175, 6°/ Ages 36-40, 270, 90 Ages 31-35, 302, 100 No Age listed, 118, 4% Ages 21-25, 719, 23% An analysis of patient records seized during search warrants at several dispensaries show that 52% of the customers purchasing marijuana were between the ages of 17 to 30. 63% of primary caregivers purchasing marijuana were between the ages of 18 through 30. Only 2.05% of customers submitted a physician's recommendation for AIDS, glaucoma, or cancer. Why these businesses were deemed to be criminal--not compassionate: The medical marijuana businesses were deemed to be criminal enterprises for the following reasons: • Many of the business owners had histories of drug and violence-related arrests. • The business owners were street-level marijuana dealers who took advantage of Prop. 215 in an attempt to legitimize marijuana sales for profit. • Records, or lack of records, seized during the search warrants showed that all the owners were not properly reporting income generated from the sales of marijuana. Many owners were involved in money laundering and tax evasion. • The businesses were selling to individuals without serious medical conditions. • There are no guidelines on the amount of marijuana which can be sold to an individual. For © 2009 California Police Chiefs Assn. 23 All Rights Reserved Ages 17-20, 364, 12% 65A-84 Ages 26-30, 504, 17% example, an individual with a physician's recommendation can go to as many marijuana distribution businesses and purchase as much marijuana as he/she wants. California law allows an individual to possess 6 mature or 12 immature plants per qualified person. However, the San Diego Municipal Code states a "caregiver" can only provide care to 4 people, including themselves; this translates to 24 mature or 48 immature plants total. Many of these dispensaries are operating large marijuana grows with far more plants than allowed under law. Several of the dispensaries had indoor marijuana grows inside the businesses, with mature and/or immature marijuana plants over the limits. State law allows a qualified patient or primary caregiver to possess no more than eight ounces of dried marijuana per qualified patient. However, the San Diego Municipal Code allows primary caregivers to possess no more than two pounds of processed marijuana. Under either law, almost every marijuana dispensary had over two pounds of processed marijuana during the execution of the search warrants. Some marijuana dispensaries force customers to sign forms designating the business as their primary caregiver, in an attempt to circumvent the law. 2. EXPERIENCES WITH MARIJUANA DISPENSARIES IN RIVERSIDE COUNTY There were some marijuana dispensaries operating in the County of Riverside until the District Attorney's Office took a very aggressive stance in closing them. In Riverside, anyone that is not a "qualified patient" or "primary caregiver" under the Medical Marijuana Program Act who possesses, sells, or transports marijuana is being prosecuted. Several dispensary closures illustrate the impact this position has had on marijuana dispensaries. For instance, the Palm Springs Caregivers dispensary (also known as Palm Springs Safe Access Collective) was searched after a warrant was issued. All materials inside were seized, and it was closed down and remains closed. The California Caregivers Association was located in downtown Riverside. Very shortly after it opened, it was also searched pursuant to a warrant and shut down. The CannaHelp dispensary was located in Palm Desert. It was searched and closed down early in 2007. The owner and two managers were then prosecuted for marijuana sales and possession of marijuana for the purpose of sale. However, a judge granted their motion to quash the search warrant and dismissed the charges. The District Attorney's Office then appealed to the Fourth District Court of Appeal. Presently, the Office is waiting for oral arguments to be scheduled. Dispensaries in the county have also been closed by court order. The Healing Nations Collective was located in Corona. The owner lied about the nature of the business in his application for a license. The city pursued and obtained an injunction that required the business to close. The owner appealed to the Fourth District Court of Appeal, which ruled against him. (City of Corona v. Ronald Naulls et al., Case No. E042772.) 3. MEDICAL MARIJUANA DISPENSARY ISSUES IN CONTRA COSTA COUNTY CITIES AND IN OTHER BAY AREA COUNTIES Several cities in Contra Costa County, California have addressed this issue by either banning dispensaries, enacting moratoria against them, regulating them, or taking a position that they are simply not a permitted land use because they violate federal law. Richmond, El Cerrito, San Pablo, Hercules, and Concord have adopted permanent ordinances banning the establishment of marijuana dispensaries. Antioch, Brentwood, Oakley, Pinole, and Pleasant Hill have imposed moratoria against dispensaries. Clayton, San Ramon, and Walnut Creek have not taken any formal action regarding the establishment of marijuana dispensaries but have indicated that marijuana dispensaries © 2009 California Police Chiefs Assn. 24 All Rights Reserved 65A-85 are not a permitted use in any of their zoning districts as a violation of federal law. Martinez has adopted a permanent ordinance regulating the establishment of marijuana dispensaries. The Counties of Alameda, Santa Clara, and San Francisco have enacted permanent ordinances regulating the establishment of marijuana dispensaries. The Counties of Solano, Napa, and Marin have enacted neither regulations nor bans. A brief overview of the regulations enacted in neighboring counties follows. A. Alameda County Alameda County has a nineteen-page regulatory scheme which allows the operation of three permitted dispensaries in unincorporated portions of the county. Dispensaries can only be located in commercial or industrial zones, or their equivalent, and may not be located within 1,000 feet of other dispensaries, schools, parks, playgrounds, drug recovery facilities, or recreation centers. Permit issuance is controlled by the Sheriff, who is required to work with the Community Development Agency and the Health Care Services agency to establish operating conditions for each applicant prior to final selection. Adverse decisions can be appealed to the Sheriff and are ruled upon by the same panel responsible for setting operating conditions. That panel's decision may be appealed to the Board of Supervisors, whose decision is final (subject to writ review in the Superior Court per CCP sec. 1094.5). Persons violating provisions of the ordinance are guilty of a misdemeanor. B. Santa Clara County In November of 1998, Santa Clara County passed an ordinance permitting dispensaries to exist in unincorporated portions of the county with permits first sought and obtained from the Department of Public Health. In spite of this regulation, neither the County Counsel nor the District Attorney's Drug Unit Supervisor believes that Santa Clara County has had any marijuana dispensaries in operation at least through 2006. The only permitted activities are the on-site cultivation of medical marijuana and the distribution of medical marijuana/medical marijuana food stuffs. No retail sales of any products are permitted at the dispensary. Smoking, ingestion or consumption is also prohibited on site. All doctor recommendations for medical marijuana must be verified by the County's Public Health Department. C. San Francisco County In December of 2001, the Board of Supervisors passed Resolution No. 012006, declaring San Francisco to be a "Sanctuary for Medical Cannabis." City voters passed Proposition S in 2002, directing the city to explore the possibility of establishing a medical marijuana cultivation and distribution program run by the city itself. San Francisco dispensaries must apply for and receive a permit from the Department of Public Health. They may only operate as a collective or cooperative, as defined by California Health and Safety Code section 11362.7 (see discussion in section 4, under "California Law" above), and may only sell or distribute marijuana to members. Cultivation, smoking, and making and selling food products may be allowed. Permit applications are referred to the Departments of Planning, Building Inspection, and Police. Criminal background checks are required but exemptions could still allow the operation of dispensaries by individuals with prior convictions for violent felonies or who have had prior permits suspended or revoked. Adverse decisions can be appealed to the Director of © 2009 California Police Chiefs Assn. 25 All Rights Reserved 65A-86 Public Health and the Board of Appeals. It is unclear how many dispensaries are operating in the city at this time. D. Crime Rates in the Vicinity of MariCare Sheriff's data have been compiled for "Calls for Service" within a half-mile radius of 127 Aspen Drive, Pacheco. However, in research conducted by the El Cerrito Police Department and relied upon by Riverside County in recently enacting its ban on dispensaries, it was recognized that not all crimes related to medical marijuana take place in or around a dispensary. Some take place at the homes of the owners, employees, or patrons. Therefore, these statistics cannot paint a complete picture of the impact a marijuana dispensary has had on crime rates. The statistics show that the overall number of calls decreased (3,746 in 2005 versus 3,260 in 2006). However, there have been increases in the numbers of crimes which appear to be related to a business which is an attraction to a criminal element. Reports of commercial burglaries increased (14 in 2005, 24 in 2006), as did reports of residential burglaries (13 in 2005, 16 in 2006) and miscellaneous burglaries (5 in 2005, 21 in 2006). Tender Holistic Care (THC marijuana dispensary formerly located on N. Buchanan Circle in Pacheco) was forcibly burglarized on June 11, 2006. $4,800 in cash was stolen, along with marijuana, hash, marijuana food products, marijuana pills, marijuana paraphernalia, and marijuana plants. The total loss was estimated to be $16,265. MariCare was also burglarized within two weeks of opening in Pacheco. On April 4, 2006, a window was smashed after 11:00 p.m. while an employee was inside the business, working late to get things organized. The female employee called "911" and locked herself in an office while the intruder ransacked the downstairs dispensary and stole more than $200 worth of marijuana. Demetrio Ramirez indicated that since they were just moving in, there wasn't much inventory. Reports of vehicle thefts increased (4 in 2005, 6 in 2006). Disturbance reports increased in nearly all categories (Fights: 5 in 2005, 7 in 2006; Harassment: 4 in 2005, 5 in 2006; Juveniles: 4 in 2005, 21 in 2006; Loitering: 11 in 2005, 19 in 2006; Verbal: 7 in 2005, 17 in 2006). Littering reports increased from 1 in 2005 to 5 in 2006. Public nuisance reports increased from 23 in 2005 to 26 in 2006. These statistics reflect the complaints and concerns raised by nearby residents. Residents have reported to the District Attorney's Office, as well as to Supervisor Piepho's office, that when calls are made to the Sheriff's Department, the offender has oftentimes left the area before law enforcement can arrive. This has led to less reporting, as it appears to local residents to be a futile act and residents have been advised that law enforcement is understaffed and cannot always timely respond to all calls for service. As a result, Pacheco developed a very active, visible Neighborhood Watch program. The program became much more active in 2006, according to Doug Stewart. Volunteers obtained radios and began frequently receiving calls directly from local businesses and residents who contacted them instead of law enforcement. It is therefore significant that there has still been an increase in many types of calls for law enforcement service, although the overall number of calls has decreased. Other complaints from residents included noise, odors, smoking/consuming marijuana in the area, littering and trash from the dispensary, loitering near a school bus stop and in the nearby church parking lot, observations that the primary patrons of MariCare appear to be individuals under age 25, © 2009 California Police Chiefs Assn. 26 All Rights Reserved 65A-87 and increased traffic. Residents observed that the busiest time for MariCare appeared to be from 4:00 p.m. to 6:00 p.m. On a typical Friday, 66 cars were observed entering MariCare's facility; 49 of these were observed to contain additional passengers. The slowest time appeared to be from 1:00 p.m. to 3:00 p.m. On a typical Saturday, 44 cars were counted during this time, and 29 of these were observed to have additional passengers. MariCare has claimed to serve 4,000 "patients." E. Impact of Proposed Ordinance on MedDelivery Dispensary, El Sobrante It is the position of Contra Costa County District Attorney Robert J. Kochly that a proposed ordinance should terminate operation of the dispensary in El Sobrante because the land use of that business would be inconsistent with both state and federal law. However, the Community Development Department apparently believes that MedDelivery can remain as a "legal, non- conforming use." F. Banning Versus Regulating Marijuana Dispensaries in Unincorporated Contra Costa County It is simply bad public policy to allow the proliferation of any type of business which is illegal and subject to being raided by federal and/or state authorities. In fact, eight locations associated with the New Remedies dispensary in San Francisco and Alameda Counties were raided in October of 2006, and eleven Southern California marijuana clinics were raided by federal agents on January 18, 2007. The Los Angeles head of the federal Drug Enforcement Administration told CBS News after the January raids that "Today's enforcement operations show that these establishments are nothing more than drug-trafficking organizations bringing criminal activities to our neighborhoods and drugs near our children and schools." A Lafayette, California resident who owned a business that produced marijuana-laced foods and drinks for marijuana clubs was sentenced in federal court to five years and 10 months behind bars as well as a $250,000 fine. Several of his employees were also convicted in that case. As discussed above, there is absolutely no exception to the federal prohibition against marijuana cultivation, possession, transportation, use, and distribution. Neither California's voters nor its Legislature authorized the existence or operation of marijuana dispensing businesses when given the opportunity to do so. These enterprises cannot fit themselves into the few, narrow exceptions that were created by the Compassionate Use Act and Medical Marijuana Program Act. Further, the presence of marijuana dispensing businesses contributes substantially to the existence of a secondary market for illegal, street-level distribution of marijuana. This fact was even recognized by the United States Supreme Court: "The exemption for cultivation by patients and caregivers can only increase the supply of marijuana in the California market. The likelihood that all such production will promptly terminate when patients recover or will precisely match the patients' medical needs during their convalescence seems remote; whereas the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious." (Gonzales v. Raich, supra, 125 S.Ct. at p. 2214.) As outlined below, clear evidence has emerged of such a secondary market in Contra Costa County. In September of 2004, police responded to reports of two men pointing a gun at cars in the parking lot at Monte Vista High School during an evening football game/dance. Two 19-year-old Danville residents were located in the parking lot (which was full of vehicles and pedestrians) and in possession of a silver Airsoft pellet pistol designed to replicate a © 2009 California Police Chiefs Assn. 27 All Rights Reserved 65A-88 real Walther semi-automatic handgun. Marijuana, hash, and hash oil with typical dispensary packaging and labeling were also located in the car, along with a gallon bottle of tequila (1/4 full), a bong with burned residue, and rolling papers. The young men admitted to having consumed an unknown amount of tequila at the park next to the school and that they both pointed the gun at passing cars "as a joke." They fired several BBs at a wooden fence in the park when there were people in the area. The owner of the vehicle admitted that the marijuana was his and that he was not a medicinal marijuana user. He was able to buy marijuana from his friend "Brandon," who used a Proposition 215 card to purchase from a cannabis club in Hayward. In February of 2006, Concord police officers responded to a report of a possible drug sale in progress. They arrested a high school senior for two outstanding warrants as he came to buy marijuana from the cannabis club located on Contra Costa Boulevard. The young man explained that he had a cannabis club card that allowed him to purchase marijuana, and admitted that he planned to re-sell some of the marijuana to friends. He also admitted to possession of nearly 7 grams of cocaine which was recovered. A 21-year-old man was also arrested on an outstanding warrant. In his car was a marijuana grinder, a baggie of marijuana, rolling papers, cigars, and a "blunt" (hollowed out cigar filled with marijuana for smoking) with one end burned. The 21-year-old admitted that he did not have a physician's recommendation for marijuana. Also in February of 2006, a 17-year-old Monte Vista High School senior was charged with felony furnishing of marijuana to a child, after giving a 4-year-old boy a marijuana- laced cookie. The furnishing occurred on campus, during a child development class. In March of 2006, police and fire responded to an explosion at a San Ramon townhouse and found three young men engaged in cultivating and manufacturing "honey oil" for local pot clubs. Marijuana was also being sold from the residence. Honey oil is a concentrated form of cannabis chemically extracted from ground up marijuana with extremely volatile butane and a special "honey oil" extractor tube. The butane extraction operation exploded with such force that it blew the garage door partially off its hinges. Sprinklers in the residence kept the fire from spreading to the other homes in the densely packed residential neighborhood. At least one of the men was employed by Ken Estes, owner of the Dragonfly Holistic Solutions pot clubs in Richmond, San Francisco, and Lake County. They were making the "honey oil" with marijuana and butane that they brought up from one of Estes' San Diego pot clubs after it was shut down by federal agents. Also in March of 2006, a 16-year-old El Cerrito High School student was arrested after selling pot cookies to fellow students on campus, many of whom became ill. At least four required hospitalization. The investigation revealed that the cookies were made with a butter obtained outside a marijuana dispensary (a secondary sale). Between March of 2004 and May of 2006, the El Cerrito Police Department conducted seven investigations at the high school and junior high school, resulting in the arrest of eight juveniles for selling or possessing with intent to sell marijuana on or around the school campuses. In June of 2006, Moraga police officers made a traffic stop for suspected driving under the influence of alcohol. The car was seen drifting over the double yellow line separating north and southbound traffic lanes and driving in the bike lane. The 20-year-old driver denied having consumed any alcohol, as he was the "designated driver." When asked about his bloodshot, watery, and droopy eyes, the college junior explained that he had © 2009 California Police Chiefs Assn. 28 All Rights Reserved 65A-89 smoked marijuana earlier (confirmed by blood tests). The young man had difficulty performing field sobriety tests, slurred his speech, and was ultimately arrested for driving under the influence. He was in possession of a falsified California Driver's License, marijuana, hash, a marijuana pipe, a scale, and $12,288. The marijuana was in packaging from the Compassionate Collective of Alameda County, a Hayward dispensary. He explained that he buys the marijuana at "Pot Clubs," sells some, and keeps the rest. He only sells to close friends. About $3,000 to $4,000 of the cash was from playing high- stakes poker, but the rest was earned selling marijuana while a freshman at Arizona State University. The 18-year-old passenger had half an ounce of marijuana in her purse and produced a doctor's recommendation to a marijuana club in Oakland, the authenticity of which could not be confirmed. Another significant concern is the proliferation of marijuana usage at community schools. In February of 2007, the Healthy Kids Survey for Alameda and Contra Costa Counties found that youthful substance abuse is more common in the East Bay's more affluent areas. These areas had higher rates of high school juniors who admitted having been high from drugs. The regional manager of the study found that the affluent areas had higher alcohol and marijuana use rates. USA Today recently reported that the percentage of 12`h Grade students who said they had used marijuana has increased since 2002 (from 33.6% to 36.2% in 2005), and that marijuana was the most-used illicit drug among that age group in 2006. KSDK News Channel 5 reported that high school students are finding easy access to medical marijuana cards and presenting them to school authorities as a legitimate excuse for getting high. School Resource Officers for Monte Vista and San Ramon Valley High Schools in Danville have reported finding marijuana in prescription bottles and other packaging from Alameda County dispensaries. Marijuana has also been linked to psychotic illnesses.101 A risk factor was found to be starting marijuana use in adolescence. For all of the above reasons, it is advocated by District Attorney Kochly that a ban on land uses which violate state or federal law is the most appropriate solution for the County of Contra Costa. 4. SANTA BARBARA COUNTY According to Santa Barbara County Deputy District Attorney Brian Cota, ten marijuana dispensaries are currently operating within Santa Barbara County. The mayor of the City of Santa Barbara, who is an outspoken medical marijuana supporter, has stated that the police must place marijuana behind every other police priority. This has made it difficult for the local District Attorney's Office. Not many marijuana cases come to it for filing. The District Attorney's Office would like more regulations placed on the dispensaries. However, the majority of Santa Barbara County political leaders and residents are very liberal and do not want anyone to be denied access to medical marijuana if they say they need it. Partly as a result, no dispensaries have been prosecuted to date. 5. SONOMA COUNTY Stephan R. Passalocqua, District Attorney for the County of Sonoma, has recently reported the following information related to distribution of medical marijuana in Sonoma County. In 1997, the Sonoma County Law Enforcement Chiefs Association enacted the following medical marijuana guidelines: a qualified patient is permitted to possess three pounds of marijuana and grow 99 plants in a 100-square-foot canopy. A qualified caregiver could possess or grow the above-mentioned amounts for each qualified patient. These guidelines were enacted after Proposition 215 was overwhelmingly passed by the voters of California, and after two separate unsuccessful prosecutions in Sonoma County. Two Sonoma County juries returned "not guilty" verdicts for three defendants © 2009 California Police Chiefs Assn. 29 All Rights Reserved 65A-90 who possessed substantially large quantities of marijuana (60 plants in one case and over 900 plants in the other) where they asserted a medical marijuana defense. These verdicts, and the attendant publicity, demonstrated that the community standards are vastly different in Sonoma County compared to other jurisdictions. On November 6, 2006, and authorized by Senate Bill 420, the Sonoma County Board of Supervisors specifically enacted regulations that allow a qualified person holding a valid identification card to possess up to three pounds of dried cannabis a year and cultivate 30 plants per qualified patient. No individual from any law enforcement agency in Sonoma County appeared at the hearing, nor did any representative publicly oppose this resolution. With respect to the People v. Sashon Jenkins case, the defendant provided verified medical recommendations for five qualified patients prior to trial. At the time of arrest, Jenkins said that he had a medical marijuana card and was a care provider for multiple people, but was unable to provide specific documentation. Mr. Jenkins had approximately 10 pounds of dried marijuana and was growing 14 plants, which number of plants is consistent with the 2006 Sonoma County Board of Supervisors' resolution. At a preliminary hearing held In January of 2007, the defense called five witnesses who were proffered as Jenkins' "patients" and who came to court with medical recommendations. Jenkins also testified that he was their caregiver. After the preliminary hearing, the assigned prosecutor conducted a thorough review of the facts and the law, and concluded that a Sonoma County jury would not return a "guilty" verdict in this case. Hence, no felony information was filed. With respect to the return of property issue, the prosecuting deputy district attorney never agreed to release the marijuana despite dismissing the case. Other trial dates are pending in cases where medical marijuana defenses are being alleged. District Attorney Passalacqua has noted that, given the overwhelming passage of proposition 215, coupled with at least one United States Supreme Court decision that has not struck it down to date, these factors present current challenges for law enforcement, but that he and other prosecutors will continue to vigorously prosecute drug dealers within the boundaries of the law. 6. ORANGE COUNTY There are 15 marijuana dispensaries in Orange County, and several delivery services. Many of the delivery services operate out of the City of Long Beach in Los Angeles County. Orange County served a search warrant on one dispensary, and closed it down. A decision is being made whether or not to file criminal charges in that case. It is possible that the United States Attorney will file on that dispensary since it is a branch of a dispensary that the federal authorities raided in San Diego County. The Orange County Board of Supervisors has ordered a study by the county's Health Care Department on how to comply with the Medical Marijuana Program Act. The District Attorney's Office's position is that any activity under the Medical Marijuana Program Act beyond the mere issuance of identification cards violates federal law. The District Attorney's Office has made it clear to County Counsel that if any medical marijuana provider does not meet a strict definition of "primary caregiver" that person will be prosecuted. © 2009 California Police Chiefs Assn. 30 All Rights Reserved 65A-91 PENDING LEGAL QUESTIONS Law enforcement agencies throughout the state, as well as their legislative bodies, have been struggling with how to reconcile the Compassionate Use Act ("CUA"), Cal. Health & Safety Code secs. 11362.5, et seq., with the federal Controlled Substances Act ("CSA"), 21 U.S.C. sec. 801, et seq., for some time. Pertinent questions follow. QUESTION 1. Is it possible for a storefront marijuana dispensary to be legally operated under the Compassionate Use Act of 1996 (Health & Saf. Code sec. 11362.5) and the Medical Marijuana Program Act (Health & Saf. Code secs. 11362.7- 11362.83? ANSWER 1. Storefront marijuana dispensaries may be legally operated under the CUA and the Medical Marijuana Program Act ("MMPA"), Cal. Health & Safety Code secs. 11362.7-11362.83, as long as they are "cooperatives" under the MMPA. ANALYSIS The question posed does not specify what services or products are available at a "storefront" marijuana dispensary. The question also does not specify the business structure of a "dispensary." A "dispensary" is often commonly used nowadays as a generic term for a facility that distributes medical marijuana. The term "dispensary" is also used specifically to refer to marijuana facilities that are operated more like a retail establishment, that are open to the public and often "sell" medical marijuana to qualified patients or caregivers. By use of the term "store front dispensary," the question may be presuming that this type of facility is being operated. For purposes of this analysis, we will assume that a "dispensary" is a generic term that does not contemplate any particular business structure.' Based on that assumption, a "dispensary" might provide "assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver, in administering medical marijuana to the qualified patient or person or acquiring the skills necessary to cultivate or administer marijuana for medical purposes to the qualified patient or person" and be within the permissible limits of the CUA and the MMPA. (Cal. Health & Safety Code sec. 11362.765 (b)(3).) ' As the term "dispensary" is commonly used and understood, marijuana dispensaries would not be permitted under the CUA or the MMPA, since they "sell" medical marijuana and are not operated as true "cooperatives." © 2009 California Police Chiefs Assn. 31 All Rights Reserved 65A-92 The CUA permits a "patient" or a "patient's primary caregiver" to possess or cultivate marijuana for personal medical purposes with the recommendation of a physician. (Cal. Health & Safety Code sec. 11362.5 (d).) Similarly, the MMPA provides that "patients" or designated "primary caregivers" who have voluntarily obtained a valid medical marijuana identification card shall not be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in specified quantities. (Cal. Health & Safety Code sec. 11362.71 (d) & (e).) A "storefront dispensary" would not fit within either of these categories. However, the MMPA also provides that "[q]ualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under section 11357 [possession], 11358 [planting, harvesting or processing], 11359 [possession for sale], 11360 [unlawful transportation, importation, sale or gift], 11366 [opening or maintaining place for trafficking in controlled substances], 11366.5 [providing place for manufacture or distribution of controlled substance; Fortifying building to suppress law enforcement entry], or 11570 [Buildings or places deemed nuisances subject to abatement]." (Cal. Health & Safety Code sec. 11362.775.) (Emphasis added).) Since medical marijuana cooperatives are permitted pursuant to the MMPA, a "storefront dispensary" that would qualify as a cooperative would be permissible under the MMPA. (Cal. Health & Safety Code sec. 11362.775. See also People v. Urziceanu (2005) 132 Cal. App. 4th 747 (finding criminal defendant was entitled to present defense relating to operation of medical marijuana cooperative).) In granting a re-trial, the appellate court in Urziceanu found that the defendant could present evidence which might entitle him to a defense under the MMPA as to the operation of a medical marijuana cooperative, including the fact that the "cooperative" verified physician recommendations and identities of individuals seeking medical marijuana and individuals obtaining medical marijuana paid membership fees, reimbursed defendant for his costs in cultivating the medical marijuana by way of donations, and volunteered at the "cooperative." (Id. at p. 785.) Whether or not "sales" are permitted under Urziceanu and the MMPA is unclear. The Urziceanu Court did note that the incorporation of section 11359, relating to marijuana "sales," in section 11362.775, allowing the operation of cooperatives, "contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana." Whether "reimbursement" may be in the form only of donations, as were the facts presented in Urziceanu, or whether "purchases" could be made for medical marijuana, it does seem clear that a medical marijuana "cooperative" may not make a "profit," but may be restricted to being reimbursed for actual costs in providing the marijuana to its members and, if there are any "profits," these may have to be reinvested in the "cooperative" or shared by its members in order for a dispensary to © 2009 California Police Chiefs Assn. 32 All Rights Reserved 65A-93 be truly considered to be operating as a "cooperative. "2 If these requirements are satisfied as to a "storefront" dispensary, then it will be permissible under the MMPA. Otherwise, it will be a violation of both the CUA and the MMPA. QUESTION If the governing body of a city, county, or city and county approves an ordinance authorizing and regulating marijuana dispensaries to implement the Compassionate Use Act of 1996 and the Medical Marijuana Program Act, can an individual board or council member be found to be acting illegally and be subject to federal criminal charges, including aiding and abetting, or state criminal charges? ANSWER 2. If a city, county, or city and county authorizes and regulates marijuana dispensaries, individual members of the legislative bodies may be held criminally liable under state or federal law.3 ANALYSIS A. Federal Law Generally, legislators of federal, state, and local legislative bodies are absolutely immune from liability for legislative acts. (U.S. Const., art. I, sec. 6 (Speech and Debate Clause, applicable to members of Congress); Fed. Rules Evid., Rule 501 (evidentiary privilege against admission of legislative acts); Tenney v. Brandhove (1951) 341 U. S. 367 (legislative immunity applicable to state legislators); Bogan v. Scott-Harris (1998) 523 U.S. 44 (legislative immunity applicable to local legislators).) However, while federal legislators are absolutely immune from both criminal and civil liability for purely legislative acts, local legislators are only immune from civil liability under federal law. (United States v. Gillock (1980) 445 U.S. 360.) Where the United States Supreme Court has held that federal regulation of marijuana by way of the CSA, including any "medical" use of marijuana, is within Congress' Commerce Clause power, federal law stands as a bar to local action in direct violation of the CSA. (Gonzales v. Raich (2005) 545 U.S. 1.) In fact, the CSA itself provides that federal regulations do not ` A "cooperative" is defined as follows: An enterprise or organization that is owned or managed jointly by those who use its facilities or services. THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, by Houghton Mifflin Company (4th Ed. 2000). ' Indeed, the same conclusion would seem to result from the adoption by state legislators of the MMPA itself, in authorizing the issuance of medical marijuana identification cards. (Cal. Health & Safety Code secs. 113 et seq.) © 2009 California Police Chiefs Assn. 33 All Rights Reserved 65A-94 exclusively occupy the field of drug regulation "unless there is a positive conflict between that provision of this title [the CSA] and that state law so that the two cannot consistently stand together." (21 U.S.C. sec. 903.) Based on the above provisions, then, legislative action by local legislators could subject the individual legislators to federal criminal liability. Most likely, the only violation of the CSA that could occur as a result of an ordinance approved by local legislators authorizing and regulating medical marijuana would be aiding and abetting a violation of the CSA. The elements of the offense of aiding and abetting a criminal offense are: (1) specific intent to facilitate commission of a crime by another; (2) guilty knowledge on the part of the accused; (3) that an offense was being committed by someone; and (4) that the accused assisted or participated in the commission of an offense. (United States v. Raper (1982) 676 F.2d 841; United States v. Staten (1978) 581 F.2d 878.) Criminal aiding and abetting liability, under 18 U.S.C. section 2, requires proof that the defendants in some way associated themselves with the illegal venture; that they participated in the venture as something that they wished to bring about; and that they sought by their actions to make the venture succeed. (Central Bank, N.A. v. First Interstate Bank, N.A. (1994) 511 U.S. 164.) Mere furnishing of company to a person engaged in a crime does not render a companion an aider or abettor. (United States v. Garguilo (2d Cir. 1962) 310 F.2d 249.) In order for a defendant to be an aider and abettor he must know that the activity condemned by law is actually occurring and must intend to help the perpetrator. (United States v. McDaniel (9th Cir. 1976) 545 F.2d 642.) To be guilty of aiding and abetting, the defendant must willfully seek, by some action of his own, to make a criminal venture succeed. (United States v. Ehrenberg (E.D. Pa. 1973) 354 F. Supp. 460 cert. denied (1974) 94 S. Ct. 1612.) The question, as posed, may presume that the local legislative body has acted in a manner that affirmatively supports marijuana dispensaries. As phrased by Senator Kuehl, the question to be answered by the Attorney General's Office assumes that a local legislative body has adopted an ordinance that "authorizes" medical marijuana facilities. What if a local public entity adopts an ordinance that explicitly indicates that it does not authorize, legalize, or permit any dispensary that is in violation of federal law regarding controlled substances? If the local public entity grants a permit, regulates, or imposes locational requirements on marijuana dispensaries with the announced understanding that it does not thereby allow any illegal activity and that dispensaries are required to comply with all applicable laws, including federal laws, then the public entity should be entitled to expect that all laws will be obeyed. It would seem that a public entity is not intentionally acting to encourage or aid acts in violation of the CSA merely because it has adopted an ordinance which regulates dispensaries; even the issuance of a "permit," if it is expressly not allowing violations of federal law, cannot necessarily support a charge or conviction of aiding and abetting violation of the CSA. A public entity should be entitled to presume that dispensaries will obey all applicable laws and that lawful business will be conducted at dispensaries. For instance, dispensaries could very well not engage in actual medical marijuana distribution, but instead engage in education and awareness activities as to the medical effects of marijuana; the sale of other, legal products that aid in the suffering of © 2009 California Police Chiefs Assn. 34 All Rights Reserved 65A-95 ailing patients; or even activities directed at effecting a change in the federal laws relating to regulation of marijuana as a Schedule I substance under the CSA. These are examples of legitimate business activities, and First Amendment protected activities at that, in which dispensaries could engage relating to medical marijuana, but not apparently in violation of the CSA. Public entities should be entitled to presume that legitimate activities can and will be engaged in by dispensaries that are permitted and/or regulated by local regulations. In fact, it seems counterintuitive that local public entities within the state should be expected to be the watchdogs of federal law; in the area of controlled substances, at least, local public entities do not have an affirmative obligation to discern whether businesses are violating federal law. The California Attorney General's Office will note that the State Board of Equalization ("BOE") has already done precisely what has been suggested in the preceding paragraph. In a special notice issued by the BOE this year, it has indicated that sellers of medical marijuana must obtain a seller's permit. (See http://www.boe.ca.gov/news/pdf/medseller2007.pdf (Special Notice: Important Information for Sellers of Medical Marijuana).) As the Special Notice explicitly indicates to medical marijuana facilities, "[h]aving a seller's permit does not mean you have authority to make unlawful sales. The permit only provides a way to remit any sales and use taxes due. The permit states, 'NOTICE TO PERMITTEE: You are required to obey all federal and state laws that regulate or control your business. This permit does not allow you to do otherwise."' The above being said, however, there is no guarantee that criminal charges would not actually be brought by the federal government or that persons so charged could not be successfully prosecuted. It does seem that arguments contrary to the above conclusions could be persuasive in convicting local legislators. By permitting and/or regulating marijuana dispensaries by local ordinance, some legitimacy and credibility may be granted by governmental issuance of permits or authorizing and allowing dispensaries to exist or locate within a jurisdiction.4 All of this discussion, then, simply demonstrates that individual board or council members can, indeed, be found criminally liable under federal law for the adoption of an ordinance authorizing and regulating marijuana dispensaries that promote the use of marijuana as medicine. The actual likelihood of prosecution, and its potential success, may depend on the particular facts of the regulation that is adopted. ' Of course, the question arises as to how far any such liability be taken. Where can the line be drawn between any permit or regulation adopted specifically with respect to marijuana dispensaries and other permits or approvals routinely, and often ministerially, granted by local public entities, such as building permits or business licenses, which are discussed infra? If local public entities are held responsible for adopting an ordinance authorizing and/or regulating marijuana dispensaries, cannot local public entities also be subject to liability for providing general public services for the illegal distribution of "medical" marijuana? Could a local public entity that knew a dispensary was distributing "medical" marijuana in compliance with state law be criminally liable if it provided electricity, water, and trash services to that dispensary? How can such actions really be distinguished from the adoption of an ordinance that authorizes and/or regulates marijuana dispensaries? © 2009 California Police Chiefs Assn. 35 All Rights Reserved 65A-96 B. State Law Similarly, under California law, aside from the person who directly commits a criminal offense, no other person is guilty as a principal unless he aids and abets. (People v. Dole (1898) 122 Cal. 486; People v. Stein (1942) 55 Cal. App. 2d 417.) A person who innocently aids in the commission of the crime cannot be found guilty. (People v. Fredoni (1910) 12 Cal. App. 685.) To authorize a conviction as an aider and abettor of crime, it must be shown not only that the person so charged aided and assisted in the commission of the offense, but also that he abetted the act- that is, that he criminally or with guilty knowledge and intent aided the actual perpetrator in the commission of the act. (People v. Terman (1935) 4 Cal. App. 2d 345.) To "abet" another in commission of a crime implies a consciousness of guilt in instigating, encouraging, promoting, or aiding the commission of the offense. (People v. Best (1941) 43 Cal. App. 2d 100.) "Abet" implies knowledge of the wrongful purpose of the perpetrator of the crime. (People v. Stein, supra.) To be guilty of an offense committed by another person, the accused must not only aid such perpetrator by assisting or supplementing his efforts, but must, with knowledge of the wrongful purpose of the perpetrator, abet by inciting or encouraging him. (People v. Le Grant (1946) 76 Cal. App. 2d 148, 172; People v. Carlson (1960) 177 Cal. App. 2d 201.) The conclusion under state law aiding and abetting would be similar to the analysis above under federal law. Similar to federal law immunities available to local legislators, discussed above, state law immunities provide some protection for local legislators. Local legislators are certainly immune from civil liability relating to legislative acts; it is unclear, however, whether they would also be immune from criminal liability. (Steiner v. Superior Court, 50 Cal.AppAth 1771 (assuming, but finding no California authority relating to a "criminal" exception to absolute immunity for legislators under state law) .)5 Given the apparent state of the law, local legislators could only be certain that they would be immune from civil liability and could not be certain that ' Although the Steiner Court notes that "well-established federal law supports the exception," when federal case authority is applied in a state law context, there may be a different outcome. Federal authorities note that one purpose supporting criminal immunity as to federal legislators from federal prosecution is the separation of powers doctrine, which does not apply in the context of federal criminal prosecution of local legislators. However, if a state or county prosecutor brought criminal charges against a local legislator, the separation of powers doctrine may bar such prosecution. (Cal. Const., art. III, sec. 3.) As federal authorities note, bribery, or other criminal charges that do not depend upon evidence of, and cannot be said to further, any legislative acts, can still be prosecuted against legislators. (See Bruce v. Riddle (4th Cir. 1980) 631 F.2d 272, 279 ["Illegal acts such as bribery are obviously not in aid of legislative activity and legislators can claim no immunity for illegal acts."]; United States v. Brewster, 408 U.S. 501 [indictment for bribery not dependent upon how legislator debated, voted, or did anything in chamber or committee; prosecution need only show acceptance of money for promise to vote, not carrying through of vote by legislator]; United States v. Swindall (11th Cir. 1992) 971 F.2d © 2009 California Police Chiefs Assn. 36 All Rights Reserved 65A-97 they would be at all immune from criminal liability under state law. However, there would not be any criminal violation if an ordinance adopted by a local public entity were in compliance with the CUA and the MMPA. An ordinance authorizing and regulating medical marijuana would not, by virtue solely of its subject matter, be a violation of state law; only if the ordinance itself permitted some activity inconsistent with state law relating to medical marijuana would there be a violation of state law that could subject local legislators to criminal liability under state law. QUESTION If the governing body of a city, city and county, or county approves an ordinance authorizing and regulating marijuana dispensaries to implement the Compassionate Use Act of 1996 and the Medical Marijuana Program Act, and subsequently a particular dispensary is found to be violating state law regarding sales and trafficking of marijuana, could an elected official on the governing body be guilty of state criminal charges? ANSWER After adoption of an ordinance authorizing or regulating marijuana dispensaries, elected officials could not be found criminally liable under state law for the subsequent violation of state law by a particular dispensary. ANALYSIS Based on the state law provisions referenced above relating to aiding and abetting, it does not seem that a local public entity would be liable for any actions of a marijuana dispensary in violation of state law. Since an ordinance authorizing and/or regulating marijuana dispensaries would necessarily only be authorizing and/or regulating to the extent already permitted by state law, local elected officials could not be found to be aiding and abetting a violation of state law. In fact, the MMPA clearly contemplates local regulation of dispensaries. (Cal. Health & Safety Code sec. 11362.83 ("Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article.").) Moreover, as discussed above, there may be legislative immunity applicable to the legislative acts of individual elected officials in adopting an ordinance, especially where it is consistent with state law regarding marijuana dispensaries that dispense crude marijuana as medicine. 1531, 1549 [evidence of legislative acts was essential element of proof and thus immunity applies].) Therefore, a criminal prosecution that relates solely to legislative acts cannot be maintained under the separation of powers rationale for legislative immunity. © 2009 California Police Chiefs Assn. 37 All Rights Reserved 65A-98 QUESTION 4. Does approval of such an ordinance open the jurisdictions themselves to civil or criminal liability? ANSWER 4. Approving an ordinance authorizing or regulating marijuana dispensaries may subject the jurisdictions to civil or criminal liability. ANALYSIS Under federal law, criminal liability is created solely by statute. (Dowling v. United States (1985) 473 U.S. 207, 213.) Although becoming more rare, municipalities have been, and still may be, criminally prosecuted for violations of federal law, where the federal law provides not just a penalty for imprisonment, but a penalty for monetary sanctions. (See Green, Stuart P., The Criminal Prosecution of Local Governments, 72 N.C. L. Rev. 1197 (1994) (discussion of history of municipal criminal prosecution).) The CSA prohibits persons from engaging in certain acts, including the distribution and possession of Schedule I substances, of which marijuana is one. (21 U.S.C. sec. 841.) A person, for purposes of the CSA, includes "any individual, corporation, government or governmental subdivision or agency, business trust, partnership, association, or other legal entity." (21 C.F.R. sec. 1300.01 (34). See also 21 C.F.R. sec. 1301.02 ("Any term used in this part shall have the definition set forth in section 102 of the Act (21 U.S.C. 802) or part 1300 of this chapter.").) By its very terms, then, the CSA may be violated by a local public entity. If the actions of a local public entity otherwise satisfy the requirements of aiding and abetting a violation of the CSA, as discussed above, then local public entities may, indeed, be subject to criminal prosecution for a violation of federal law. Under either federal or state law, local public entities would not be subject to civil liability for the mere adoption of an ordinance, a legislative act. As discussed above, local legislators are absolutely immune from civil liability for legislative acts under both federal and state law. In addition, there is specific immunity under state law relating to any issuance or denial of permits. QUESTION Does the issuance of a business license to a marijuana dispensary involve any additional civil or criminal liability for a city or county and its elected governing body? ANSWER 5. Local public entities will likely not be liable for the issuance of business licenses to marijuana dispensaries that plan to dispense crude marijuana as medicine. © 2009 California Police Chiefs Assn. 38 All Rights Reserved 65A-99 ANALYSIS Business licenses are imposed by cities within the State of California oftentimes solely for revenue purposes, but are permitted by state law to be imposed for revenue, regulatory, or for both revenue and regulatory purposes. (Cal. Gov. Code sec. 37101.) Assuming a business license ordinance is for revenue purposes only, it seems that a local public entity would not have any liability for the mere collection of a tax, whether on legal or illegal activities. However, any liability that would attach would be analyzed the same as discussed above. In the end, a local public entity could hardly be said to have aided and abetted the distribution or possession of marijuana in violation of the CSA by its mere collection of a generally applicable tax on all business conducted within the entity's jurisdiction. OVERALL FINDINGS All of the above further exemplifies the catch-22 in which local public entities are caught, in trying to reconcile the CUA and MMPA, on the one hand, and the CSA on the other. In light of the existence of the CUA and the MMPA, and the resulting fact that medical marijuana is being used by individuals in California, local public entities have a need and desire to replate the location and operation of medical marijuana facilities within their jurisdiction.6 10 However, because of the divergent views of the CSA and California law regarding whether there is any accepted "medical" use of marijuana, state and local legislators, as well as local public entities themselves, could be subject to criminal liability for the adoption of statutes or ordinances furthering the possession, cultivation, distribution, transportation (and other act prohibited under the CSA) as to marijuana. Whether federal prosecutors would pursue federal criminal charges against state and/or local legislators or local public entities remains to be seen. But, based on past practices of locally based U.S. Attorneys who have required seizures of large amounts of marijuana before federal filings have been initiated, this can probably be considered unlikely. ° Several compilations of research regarding the impacts of marijuana dispensaries have been prepared by the California Police Chiefs Association and highlight some of the practical issues facing local public entities in regulating these facilities. Links provided are as follows: "Riverside County Office of the District Attorney," [White Paper, Medical Marijuana: History and Current Complications, September 2006];"Recent Information Regarding Marijuana and Dispensaries [El Cerrito Police Department Memorandum, dated January 12, 2007, from Commander M. Regan, to Scott C. Kirkland, Chief of Police]; "Marijuana Memorandum" [El Cerrito Police Department Memorandum, dated April 18, 2007, from Commander M. Regan, to Scott C. Kirkland, Chief of Police]; "Law Enforcement Concerns to Medical Marijuana Dispensaries" [Impacts of Medical Marijuana Dispensaries on communities between 75,000 and 100,000 population: Survey and council agenda report, City of Livermore]. © 2009 California Police Chiefs Assn. 39 All Rights Reserved 65A-100 CONCLUSIONS In light of the United States Supreme Court's decision and reasoning in Gonzales v. Raich, the United States Supremacy Clause renders California's Compassionate Use Act of 1996 and Medical Marijuana Program Act of 2004 suspect. No state has the power to grant its citizens the right to violate federal law. People have been, and continue to be, federally prosecuted for marijuana crimes. The authors of this White Paper conclude that medical marijuana is not legal under federal law, despite the current California scheme, and wait for the United States Supreme Court to ultimately rule on this issue. Furthermore, storefront marijuana businesses are prey for criminals and create easily identifiable victims. The people growing marijuana are employing illegal means to protect their valuable cash crops. Many distributing marijuana are hardened criminals. 103 Several are members of stepped criminal street gangs and recognized organized crime syndicates, while others distributing marijuana to the businesses are perfect targets for thieves and robbers. They are being assaulted, robbed, and murdered. Those buying and using medical marijuana are also being victimized. Additionally, illegal so-called "medical marijuana dispensaries" have the potential for creating liability issues for counties and cities. All marijuana dispensaries should generally be considered illegal and should not be permitted to exist and engage in business within a county's or city's borders. Their presence poses a clear violation of federal and state law; they invite more crime; and they compromise the health and welfare of law-abiding citizens. © 2009 California Police Chiefs Assn. 40 All Rights Reserved 65A-101 ENDNOTES 1 U.S. Const.. art. VI, cl. 2. 2 U.S. Const., art. I, sec. 8, cl. 3. 3 Gonzales v. Raich (2005) 125 S.Ct. 2195 at p. 2204. 4 Gonzales v. Raich. See also United States v. Oakland Cannabis Buyers' Cooperative (2001) 121 S.Ct. 1711, 1718. 5 Gonzales v. Raich (2005) 125 S.Ct. 2195; see also United States v. Oakland Cannabis Buyers' Cooperative 121 S.Ct. 1711. 6 Josh Meyer & Scott Glover, "U.S. won't prosecute medical pot sales," Los Angeles Times, 19 March 2009, available at http: !www.latimes.cominews,1ocalila-me-medpotI9-2009mar19.0.498757 Lstory 'See People v. Mower (2002) 28 CalAth 457, 463. 8 Health and Safety Code section 11362.5(b) (1) (A). All references hereafter to the Health and Safety Code are by section number only. 9 H&S Code sec. 11362.5(a). 10 H&S Code sec. 11362.7 et. seq. 11 H&S Code sec. 11362.7. 12 H&S Code secs. 11362.71-11362.76. 13 H&S Code sec. 11362.77. 14 H&S Code secs. 11362.765 and 11362.775; People v. Urziceanu (2005) 132 Cal.App.4`h 747 at p. 786. 15 H&S Code sec. 11362.77; whether or not this section violates the California Constitution is currently under review by the California Supreme Court. See People v. Kelly (2008) 82 Cal.Rptr.3d 167 and People v. Phomphakdy (2008) 85 Cal.Rptr. 3d 693. 16 H&S Code secs. 11357, 11358, 11359, 11360, 11366, 11366.5, and 11570. 17 H&S Code sec. 11362.7(h) gives a more comprehensive list -AIDS, anorexia, arthritis, cachexia, cancer, chronic pain, glaucoma, migraine, persistent muscle spasms, seizures, severe nausea, and any other chronic or persistent medical symptom that either substantially limits the ability of a person to conduct one or more life activities (as defined in the ADA) or may cause serious harm to the patient's safety or physical or mental health if not alleviated. 18 People v. Mower (2002) 28 CalAth 457 at p. 476. 19 Id. Emphasis added. 20 Packel, Organization and Operation of Cooperatives, 5th ed. (Philadelphia: American Law Institute, 1970),4-5. 2t Sam Stanton, "Pot Clubs, Seized Plants, New President-Marijuana's Future Is Hazy," Sacramento Bee, 7 December 2008, 19A. 22 For a statewide list, see http://canorml.org/prop/cbclist.html. 23 Laura McClure, "Fuming Over the Pot Clubs," California Lawyer Magazine, June 2006. 24 H&S Code sec. 11362.765(c); see, e.g., People v. Urziceanu, 132 Cal.App.4th 747 at p. 764. 25 Gonzales v. Raich, supra, 125 S.Ct. at page 2195. 26 People v. Urziceanu (2005) 132 Cal.AppAth 747; see also H&S Code sec. 11362.765. n Israel Packel, 4-5. Italics added. 28 H&S Code sec. 11362.7(d)(1). 29 See, e.g., McClure, "Fuming Over Pot Clubs," California Lawyer Magazine, June 2006. 30 H&S Code secs. I I362.5(e) and I I362.7(d)(1), (2),(3), and (e); see also People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1395. 31 People v. Mower, 28 Cal.4th at 476. Emphasis added. 32 Glenda Anderson, "Laytonville Marijuana Guru Shot to Death: 2 Others Beaten in Home; No Suspects but Officials Believe Killing Related to Pot Growing," Santa Rosa Press Democrat, 19 November 2005, available at http:;!wwwl pressdemocrat comiapps?pbcs.dlliarticle7A1D=i20051119iNEWS/5 11190303/1033/ 33 "Medical Marijuana Shop Robbed," Santa Barbara Independent, 10 August 2006, available at Imp: independent.con3/news%2006%au?-1'10/medical-marijuana-shop-robbed' 34 Mark Scaramella, "No Good Deed Goes Unpunished," Anderson Valley Advertiser, 16 June 2004, available at http:w w.thewva.cotn/04!0616-cerelli.html © 2009 California Police Chiefs Assn. 41 All Rights Reserved 65A-102 35 Ricci Graham, "Police Arrest Suspect in Deadly San Leandro Pot Club Robbery," Oakland Tribune, 8 August 2006, available at http:I/findarticles.com/p/articlesimi gn4176/is 20060808/ai n t665925 7 36 Ricci Graham, "Man Faces Murder Charge in Pot Robbery," Oakland Tribune, 24 August 2005, available at hap:' www.highbeam.com/doci 1 P2-7021933.html 37 Ricci Graham, "Another Medical Marijuana Clinic Robbed," Oakland Tribune, 10 September 2005, available at http:','findarticles.com/p'ar-ticles/mi gn4176/is 20050910/ai n 15809189;print 38Laura Clark, "Pot Dispensary Owner Slain at Home." Ukiah Daily Journal, 19 November 2007, available at http: %www.marijuana com'drnr«-war-headline-news'24910-ca-pot-dispensarv-owner-slrin-home html 39 Laura Clark, "Breaking News: Medical Marijuana Supplier Les Crane Killed," Ukiah Daily Journal, 19 November 2005; Laura Clark, "Les Crane Murder Investigation Continues," Ukiah Daily Journal, 27 November 2005; Glenda Anderson, "Laytonville Marijuana Guru Shot to Death," Santa Rosa Press Democrat, 19 November 2005; Glenda Anderson, "Pot Activist Likely Knew Killers: Police Believe Gunmen Who Robbed Laytonville Man Familiar With Home," Santa Rosa Press Democrat, 20 November 2005, available at http:www.edualriehts4all.us/content/view/ 192/50/ 40 Mark Scaramella, "The Mendo Pot Chronicles," Anderson Valley Advertiser, 3 October 2007, available at http:wvvvv.theava.com/04%0616-cerelli.hUnl 41 Kirk Johnson, "Killing Highlights Risk of Selling Marijuana, Even Legally," New York Times, 13 March 2007, available at http:, ?www.nvtimes.comi2007,03!02ius/02 can nabis.html?ex=118 1 880000&en=c609936094adda50&ei=5070 42 Tami Abdollah & Richard Winton, "Pot Theft Claimed in Boy's Shooting Death," Los Angeles Times, 23 January 2007, available at http: 'vvvvw.californiapolicechiefs.orL!%nav files marijuana tiles bellflower shooting death pdf 43 Will Bigham, "Claremont Marijuana Dispensary Burglarized," Inland Valley Daily Bulletin, 27 January 2007, available at http: 'www.dailybulletin.con3/ci 5104514 44 Planning Commission Agenda, available at http:i/www.el-cerrito.oru; see also Alan Lopez, "El Cerrito Moves to Ban Dispensaries," Contra Costa Times, 24 June 2006, available at hap: wvvvv,.thc-ministrv.net'fonnr>,'archive/el-cerrito-moves-to-ban-cannabis-clubs-6974 htm 4' Fred Ortega, "City Bans Outlets for Medical Marijuana," San Gabriel Valley Tribune, 17 August 2006, available at http: 'vvww lca-uk or;%lcafonrm/viewtopic phr)"f-6&t=2436&start=0&sid=I?b6dal 15a0da43 facb I 7644195cbb 46 Ortega. 47 Greg Beato, "Pot Clubs in Peril: Are San Francisco Zoning Boards a Bigger Threat to Medical Marijuana Than the DEAT' Reason Magazine, February 2007, available at http:' wvvvv.reason. com; nevvs;'show! l 183 14 html; Craig T. Steckler, City of Fremont Police Department Memorandum re Medical Marijuana Dispensaries - Potential Secondary Impacts, 20 June 2006; Tim Miller, City of Anaheim Police Department: Special Operations Division Memorandum re Medical Mar?uana Dispensary (MMD) Ban Ordinance, 13 June 2007. 48 Jeff McDonald, "15 Held in Raids on Pot Stores," San Diego Union-Tribune, 7 July 2006, available at http:' vvvvw.si,-nonsand ieuo.corn'uniontrib-20060y07inews 7m7 of html 49 McDonald; Beato. 50 Cal. H&S Code sec. 11362.5. 51 Ethan Stewart, "The Medical Marijuana Movement Grows in Santa Barbara: Emerald Dreams and Smoky Realities," Santa Barbara Independent, 3 May 2007, available at Imp: independent.com/news/2007'mav/03;medical-marijuana-movement-grows-Santa-barbara'; see also Adam Ashton, "DEA Busts Pot Store Day After Council Talk," Modesto Bee, 28 September 2006. 52 McDonald. 53 Stewart. 54 Stewart. 55 Stewart. 56 National Drug Intelligence Center, Domestic Cannabis Cultivation Assessment 2007, February 2007; available at http:/'www.usd0i.u0wndicipubs2l'22486/• Jaxon Van Derbeken, Charlie Goodyear, & Rachel Gordon, "3 S.F. Pot Clubs Raided in Probe of Organized Crime," San Francisco Chronicle, 23 June 2005, available at http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2005/06/23/MNGRODDG321.DTL; LAPD report information, 2007. © 2009 California Police Chiefs Assn. 42 All Rights Reserved 65A-103 57 Van Derbeken, et al. 58 Kate Heneroty, "Medical marijuana indictment unsealed," Jurist, 24 June 2005, available at http:"Jurist.law. pitt.edu,'paperchase/2005.,06/medical-marijLiana- indictment-Unsealed. ph p; Stacy Finz, "19 Named in Medicinal Pot Indictment: More Than 9,300 Marijuana Plants Were Seized in Raids," San Francisco Chronicle, 24 June 2005, available at hap:i'sfeate.com/cgi-bin/article.c?4i?tile is/x;2005/06%24'BAGV9DEC4CI.DTL s9 Organized Crime Behind `Medical'Marijuana Dispensary in California," Pushingback. 29 September 2006, available at http:!/pushingback.com/blots/pusliing back/archivei2006/09/29/791 aspx; "Ashton. 61 City of San Diego, Crime Statistics, 2007, available at http://www. sand iego.gov 61 National Drug Intelligence Center, Maryuana, January 2001, available at http:/,/www.tisdoL,,ov 62 George Anastasia, "Viet Gangs on the Rise Again-The Emerging American Underworld-Gangs' Plant-filled Houses a Growing Part of Drug Trade," Chronicle of Boredom, 18 April 2007. 63 Will Bigham, "Houses Linked to Asian Gangs," Inland Valley Daily Bulletin, 23 September 2007, available at http:!iw,AAv.dailvbulletin.com/newsci 6980682 64 Bigham, 23 September 2007. 65 Feds Came and Went-Now What? Humboldt County News, 30 June 2008, available at http:"news.humcountv.conii'archivesi2008/6 66 LAPD Report Number DR#060625000, 16 August 2006. 67 LAPD Report Number DR#060625001, 16 August 2006. 68 Tim Miller, City of Anaheim Police Department: Special Operations Division Memorandum re Marijuana Dispensary (MMD) Ban Ordinance, 25 October 2006; Johnson; Craig T. Steckler, City of Fremont Police Department; Memorandum re Medical Marijuana Dispensaries - Potential Secondary Impacts, 20 June 2006. 69 Stewart. 70 Johnson. 71 Ashton. 72 "What has the U.S. DEA said about medical marijuana? " Medical Marijuana ProCon.org, 2005; "What has federal law enforcement said about medical marijuana?" 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San Francisco Chronicle, 23 June 2005. Retrieved January 9, 2009, from http://www.s,f?,,ate.com/chi-bin/article chi'?file=/c/a/2005/06/23/MNGRODDG321 DTL "What has federal law enforcement said about medical marijuana?" Medical Marijuana ProCon.org, 2009. Retrieved February 24, 2009, from http:iimedicalmariiuana.procon.org/viewanswers asp'?questionID=000630 "What has the U.S. DEA said about medical marijuana?" Medical Marijuana ProCon.org, 2005. © 2009 California Police Chiefs Assn. 49 All Rights Reserved 65A-110 EXHIBIT 4 Medical Marijuana Dispensaries: 2% Gross Receipts Cannabis Business License Tax / 1 % Sales Tax / $500 Dispensary Registration Fee Calculation of Estimated Revenue 65A-111 t 4+ ? fD O O1 m O d m m Dmo n m I-LI n c' O a 2- x m" •" A ? d m m 3ry 0 3 0 2 WO 0 cm am' 3 -' C O 6n-1 Q' S r O ID a n G1 L" N m p O OQ 3 m ?• _ I w '^ °7 m w 0 0 3 0 ,w.' .* m N 'W S '?, d O O ^ m ?, In m 7 O? M OJ O_ ?' d Q ID a m d S O v?+ m i ,? r d n Q. C G7 v? X O d 7 Q d M ID a m 3 n nOi a ID hr? 3 a m' ?a 7a rcD p a ID I d O ?; y 7 3 00 X 7 y m C 7 d DJ C D d d y W 7"< m m O Gl ID 0 in 0- O d N n d a N O vC+ UC 0 rt N 7 0 a 7 O O ID O 0 7 x W O_ M 7 N n O v C o m v c m rt * ( V W CD O V m m 7 N m 7 00 d rt vmi < y O N n Dl (D A W •'. a 7 'O A : 7 (OD ( m D N 6Sl . _ \ S O d o ( 7 rt` N CL II F-? DO O c a '1 7 Z F? 3 7 N Q V y- m m C V S C p a m Ol Q N ,? 9Nl O m 7 W ? a Q3 m CL m N ^+ ° m " o m d o m rt x S rt -p O y 7 D1 v+ N fD, d S N 7 OJ - (? j x m 0 O m d 7 D 3 0- 0 7 a m o n o ° °? n m 3 7 a) 3 0 3 m n a° 7 m_ - ro' a, 2L o D (D ?• v < d n y N FT S m m 3 m N z d ?• m N w an d x ?a "16ty m O' D71 DO x m c 0 rt n d T M O d CD _ 3 o (D ro c 3 a 3 " n < a m -0, w m n CL 7 vi a 3 m OzDw d ID _ M 0 _ , 3 n :I o 2 !" : Do a 7 ? C 7 s t' M D 7 '^ w iF f M N • 0 m 3 O OV d O S. r m m ff c 7 O N O N O N IZ O rtD r a, r- 0 d v M M 3 d 0 3 a M a z C 3 a m O v N M M 3 w N V) C a O d v m v rp lu vl? O v 9 M of° 00 d O T M M 'a M v M M d Q) C.7 O H 0 n O) D) a W N m r M M 4A x x of m + II x II + + 11 x A N V 01 W .. • {} ii• • r ? G r? lu d M O C 0 C d 3 d n 3 Q c m OJ ? 1 nr # N _ 3 N ? ? n == 3 1 Z ' `c 3 o, a 7 m _v O, v ? N JU w M - CA v o' N N N m N m f 65A-112