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FULL PACKET_2014-03-18
MINUTES OF THE SPECIAL MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA FEBRUARY 22, 2014 CALLED TO ORDER SOUTHWEST SENIOR CENTER 2201 W. McFADDEN AVENUE SANTA ANA, CALIFORNIA 10:15 A.M. ATTENDANCE COUNCILMEMBERS Present: SAL TINAJERO, Mayor Pro Tern P. DAVID BENAVIDES MICHELE MARTINEZ ROMAN A. REYNA VINCENT F. SARMIENTO COUNCILMEMBERS Absent: MIGUEL A. PULIDO, Mayor ANGELICAAMEZCUA STAFF Present: DAVID CAVAZOS, City Manager JOSE SANDOVAL, Chief Assistant City Attorney MARIA D. HUIZAR, Clerk of the Council WORK STUDY SESSION 1 CITY COUNCIL REVIEW AND DISCUSS THE DRAFT 5 -YEAR STRATEGIC PLAN City Manager David Cavazos presented draft Strategic Plan. The Mission Statement and Status Worksheet were provided to City Council and participants. Presentation Special thanks to: • Mayor and City Council • Council Ad Hoc Committee • Santa Ana Community • KidWorks • Latino Health Access • O.C.C.C.O CITY COUNCIL MINUTES 1 FEBRUARY 22, 2014 1 0A -1 • O.C. Labor Federation • SACReD • Executive Management Team & City Staff Agenda for Today's Meeting • Importance of a Strategic Plan • How we got to this point • Next on our schedule • Recap Community Engagement /Involvement • Guiding Principles • Overview of the plan - Objectives • Input from City Council How We Got To This Point: Task / Event Timeline City Council adopted Sunshine Ordinance October 15, 2012 Convened Strategic Plan Council Ad Hoc Committee April /May 2013 Interviewed new Councilmembers regarding vision, goals May 2013 and priorities Amendment of Sunshine Ordinance regarding Strategic June 17, 2013 Plan adoption timeframe Ad Hoc Committee meeting to finalize community and July 8, 2013 employee engagement Conducted Community Forum & community /employee August 2013 focus groups (175 attendees) Completed Environmental Scan document Sept. 2013 Ad Hoc Committee meeting to approve community and Sept. 10, 2013 employee surveys Conducted community /employee online survey (1,000+ Oct. 2 —Nov. 3 responses) Ad Hoc Committee meeting Nov. 5, 2013 Conducted Two Community Workshops (175 -200 Nov. 23, 2013 attendees at each) EMT Strategic Plan workshop Dec. 17, 2013 EMT review of Draft Strategic Plan Jan. 15, 2014 Ad Hoc Committee reviewed the draft Strategic Plan Jan. 16, 2014 Released Draft Strategic Plan to the Community for Jan. 24, 2014 review /comment Conducted a community meeting to receive comments on Feb. 8, 2014 the draft Strategic Plan (175 -200 attendees) City Council Workshop - Review draft Strategic Plan Feb. 22, 2014 CITY COUNCIL MINUTES 2 FEBRUARY 22, 2014 1 0A -2 Revisions to Strategic Plan based on City Council and Feb. 23rd — Mar. 11rn Community feedback City Council review and adoption of Strategic Plan March 18, 2014 Approval of funding for Strategic Plan April 2014 Implementation of the Strategic Plan FY 14/15 -18/19 Next On Our Schedule Task / Event Timeline City Council Workshop - Review draft Strategic Plan Feb. 22, 2014 Revisions to Strategic Plan based on City Council and Feb. 23rd — Mar. Community feedback 11th City Council review and adoption of Strategic Plan March 18, 2014 Approval of funding for Strategic Plan April 2014 Implementation of the Strategic Plan FY 14/15 — FY 18/19 Community Engagement and Involvement Community Meetings: • Community Forum (Southwest Senior Center) • Two Community Workshops (Local 652 & Plumbers Steamfitters Union Hall) • Community Overview (Local 652) Focused Outreach: • Employee / community online survey • Employee / Stakeholder Focus groups • City Council Interviews • One -on -one meetings with stakeholder groups Methods for providing feedback: • Mobile survey van • Strategic Plan website • Comment cards Translation: • Presentations, documents and surveys provided in 3- languages • Translation services provided at all community outreach events Notification Methods: • Advertising in local publications • Flyers distributed • Nixle e- blasts • Direct e -mail to Santa Ana Resource Network CITY COUNCIL MINUTES 3 FEBRUARY 22, 2014 1 0A -3 • Direct contact with stakeholder groups • Partnered with Santa Ana Unified School District (rob call) Guiding Principles • COLLABORATION — We actively engage and include all community stakeholders • EFFICIENCY - We are a results and performance driven organization that continuously seeks to streamline operations and focuses on the productive use of resources • EQUITY — We strive to provide equal and fair opportunity in the access and allocation of community resources • EXCELLENCE — We attract, develop, and retain dedicated public servants that are committed to quality customer service • FISCAL RESPONSIBILITY — We utilize financial assets and resources in a prudent manner to ensure economic stability and growth • INNOVATION — We promote a culture that encourages creativity and entrepreneurship in delivering valuable public services • TRANSPARENCY — We provide information openly and hold ourselves accountable to the public regarding our actions and decisions Funding Snapshot • Total of 140 strategies with majority funded in the adopted budget • Total City Budget: $428M (FYI 3-14) • Total General Fund: $205.7M (FY- 13 -14) • $4.2M in unfunded strategies identified thus far • $2M identified in the revised 5yr forecast to allocate towards Strategic Plan strategies • Approval of funding scheduled for April • City Manager will recommend allocation of funding for City Council review and final approval Strategies and Funding • 102 Funded Strategies • 38 Unfunded Strategies Strategic Plan Goal Community Safety Youth, Education, Recreation Economic Development City Financial Stability Community Health, Livability, Engagement & Sustainability Community Facilities & Infrastructure Team Santa Ana CITY COUNCIL MINUTES Unfunded Strategies Estimated Costs $640,000 $745,000 $1,205,000 $29,500 $895,000 $600,000 $142,000 4 1 0A -4 FEBRUARY 22, 2014 TOTAL $4,257,000 Goal #1 - Community Safety Objectives 1. Modernize the Community Policing philosophy to improve customer service, crime prevention and traffic /pedestrian /bicycle safety. 2. Broaden communications, information sharing and community awareness of public safety activities. 3. Promote fiscal accountability to ensure financial responsibility at all levels of the organization. 4. Provide high quality Police and Fire /Emergency Medical Services response within the City of Santa Ana. 5. Enhance Public Safety integration, communications and community outreach. 6. Ensure a sound fiscal model for jail operations through coordinated efforts with personnel from the City Manager's Office, Police Department, City Attorney's Office, Finance, and Personnel. Goal #2 — Youth, Education, & Recreation Objectives 1. Ensure coordination among organizations serving Santa Ana's youth to optimize programs. 2. Expand youth programming. 3. Expand use of technology as a tool for communication and education in the community. 4. Partner with groups and organizations to promote education, job training and development for all Santa Ana residents. Goal #3 — Economic Development Objectives 1. Implement a comprehensive Economic Development strategy to ensure that Santa Ana is a City with a vibrant business climate that is accessible, user - friendly and welcoming to all residents and visitors. 2. Create new opportunities for business /job growth and encourage private development through new General Plan and Zoning Ordinance policies. 3. Promote a solutions -based customer focus in all efforts to facilitate development and investment in the community. 4. Continue to pursue objectives that shape downtown Santa Ana into a thriving, culturally diverse, shopping, dining, and entertainment destination. 5. Leverage private investment that results in tax base expansion and job creation citywide. Goal #4 — City Financial Stability Objectives 1. Maintain a stable, efficient and transparent financial environment. 2. Provide a reliable five -year financial forecast that ensures financial stability in accordance with the strategic plan. 3. Maintain a structurally balanced budget with appropriate reserve levels. CITY COUNCIL MINUTES 5 FEBRUARY 22, 2014 1 0A -5 Goal #5 — Community Health, Livability, Engagement & Sustainability Objectives 1. Establish a comprehensive community engagement initiative to expand access to information and create opportunities for stakeholders to play an active role in discussing public policy and setting priorities. 2. Expand opportunities for conservation and environmental sustainability. 3. Facilitate diverse housing opportunities and support efforts to preserve and improve the livability of Santa Ana neighborhoods. 4. Support neighborhood vitality and livability. 5. Promote a strong arts and culture infrastructure. 6. Focus projects and programs on improving the health and wellness of all residents. Goal #6 — Community Facilities & Infrastructure Objectives 1. Establish and maintain a Community Investment Plan for all City assets. 2. Address deferred maintenance on City buildings and equipment. Goal #7 — Team Santa Ana Objectives 1. Establish a culture of customer service and community engagement as the organization's primary focus. 2. Establish communication plans to engage and inform employees and the community about City activities. 3. Improve communication between all levels of the organization. 4. Establish employee compensation that attracts and retains a highly qualified workforce. 5. Create a culture of innovation and efficiency within the organization. 6. Provide a positive workplace environment that supports the health of its employees and celebrates its success. 7. Develop a culture of motivated and innovative leaders in the organization. Accountability / Measuring Success • Regular status reports to City Council on actions taken to implement the Strategic Plan • Updates provided at applicable City Council Committee meetings • Review Strategic Plan funding during the budget process Next Steps • Draft Strategic Plan will be revised based on Community and City Council input • Revised Strategic Plan scheduled for adoption March 18th • Funding recommendations in two categories — Consensus — General consensus • City Council to review and approve funding allocation in April CITY COUNCIL MINUTES 6 FEBRUARY 22, 2014 1 0A -6 COUNCIL COMMENTS Councilmember Benavides: • Reflected on efforts to develop and bring forth a Strategic Plan; • Thanked the community for active participation; • Support development of measurable goals, objectives and timeline - provide accountability; • Thanked staff for adding new objective - re -entry program as part of community safety; walk - ability and bike - ability component; consider adding bike racks; • Commented on housing conditions and absentee landlords; dignified housing priority, apply code enforcement tools and strategies, offered PREP program as example; • Community involvement has improved; draft Plan is culmination of such efforts; encouraged community to remain engaged; proposed having a standing commission monitor progress; • Noted that City Manager monthly reports will include progress on Strategic Plan; • Appreciate inclusion of modernization of Community Policing philosophy; • Proposed customer service surveys for police services; model after Orange County Fire Authority with opportunity for residents to provide feedback; • Proposed establishment of a community task force or advisory committee to provide input into different areas of the City; and • Economic development goal focus on attracting new businesses, promoting business expansions and streamline permitting process. Councilmember Reyna: • Urged residents to be active in the process; • Proposed that licenses and permits available on the City's website; • Wi -Fi to be offered throughout the City; focus on technology • Important to be able to track data as it relates to police services; • Focus resources on senior citizens; • Economic development to focus on manufacturing opportunities; retain jobs — blue collar workers backbone of our community; • Employee training vital; and • Investment in youth - job training and internship opportunities to be considered. Councilmember Amezcua: (provided comments for the record through Councilmember Martinez due to her absence) • Allocate appropriate funds for youth and gang prevention programs; • City to explore internship opportunities with the private sector and the school district, • Strengthen gang intervention programs, and • City to continue fostering arts & culture opportunities. Councilmember Martinez: Thanked staff and community for bringing Strategic Plan forward; will provide for accountability; Inquired as to City's plan to address the unfunded liability as it pertains to pensions; Establish measureable and effective programs; City to assess existing programs before adding new programs; CITY COUNCIL MINUTES 7 FEBRUARY 22, 2014 1 0A -7 • Encourage routine review of unfunded programs, one -time programs may be easier to fund; City Manager to develop working plan to set priorities for funding; • General Plan to include healthy communities component; California Endowment willing to assist with technical assistance; • Incorporate safety into transportation plan and circulation element - Active Transportation Safety Plan; • Supports Restorative Justice program; include health impact assessment to identify "hot spots "; • Provide facilities for bikes in Circulation Element and Complete Streets; Pacific Electric Right of Way may provide for additional bike trail as a Class 2 Lane; identify cost and areas to add bicycle lockers; • Requested clarification on need for $250,000 for police technology o City Manager Cavazos indicated that electronic ticketing was one component that was included in cost. • Thanked staff for making downtown safety a priority, do not detract from other areas of the City; • Include Wellness Corridor in the Downtown area; • Referenced the Draft Status Worksheet: • Youth and Education component develop comprehensive plan to address all youth programs and maximize funds; Civic program should be available for entire community; commitment to sports; • Economic Development component; priority on manufacturing, support hotel hospitality efforts; job opportunities tied to economic development; City branding; business advisory ad hoc committee to be considered by the Finance and Economic Development Council Committee to undertake the Economic and Business Development Strategy with City staff; include Wellness Corridor partnership with Latino Health Access to address their design and lighting needs; partner with businesses on use of technology; promotions with Metrolink to bring people into our City; partner with the City of Garden Grove on economic development initiatives as it relates to Willowick Golf Course; • Requested additional information on Community Volunteer Program in the amount of $180,000; • What is status of Climate Action Plan; • Request additional information on need for Jerome and Madison Park Access Points; • Top priority to renovate public facilities - senior centers and parks; • Asked City Manager to identify funding source of all proposed projects; • City to consider joining the Associated Cities of Orange County to establish regional relationships. Councilmember Sarmiento • Thanked community and staff for efforts in drafting Strategic Plan; multi -year commitment that will and may be modified as needed; • Guiding principles to be used as a roadmap and assist in setting funding priorities; • Noted that Plan vetted by community before City Council; community driven; • City Council entrusted with providing large vision; CITY COUNCIL MINUTES 1 0A -8 FEBRUARY 22, 2014 • Develop youth programs and internships; • Creative solutions such as providing indoor soccer fields; • Focus on large revenue generators such as Auto Mall and Main Place Mall and revitalization of South Main Street corridor; • Library services continue to be a priority, community centers to offer mobile libraries; • Address homeless issue; • Fixed Guide -Way Project will be transformative project; and • City Council to consider all goals and balance interests. Mayor Pro Tern Tinajero • City making strides in area of open and transparent government; • Agreed with colleagues on need for dignified housing; and technology improvements; and educational opportunities; • Important to consider all areas and needs of the community; and • Long -term planning essential, street repair program to be considered. PUBLIC COMMENTS • Carlos Melendez, member of SACReD, urged City Council to provide housing opportunities for the very low income wage earners; substandard housing and blight to be addressed. • Apolonio Cortes, opined that economic development should be Citywide effort; contractors to hire city residents; suggest extra tax on sugared drinks and tobacco; balance needs of day and night -life businesses. • Bud Warrick, concerned that 4 -page suggestions provided at previous meeting condensed to a couple of sentences; staff asked to review proposal. • Alfredo Amezcua, thanked the City Council for efforts in bringing forth a Strategic Plan; suggest measurable goals and timeframe; community offered opportunity to review progress; also proposed strategic review committee; safety and community policing continue to be top priorities. • Sharon Barlow, representing South Main Street Merchants Association, request South Main Street business needs and area be included in Plan; investment in corridor will expand youth and education programs and allow for overall economic growth. • Octavio Pina, member of South Main Street Merchants Association, noted that South Main Street area covers 40,000 community members; economic development plan should include corridor along with other areas. • Jose Rea, Madison Park Neighborhood Association, thanked Councilmembers Martinez and Sarmiento for their health and education initiatives; also thanked Executive Director of Parks, Recreation and Community Services Gerardo Mouet for the GREEN (Getting Residents Engaged in Exercise and Nutrition) Project, at Madison Park which aims to reduce overweight and obesity rates; investment in youth through parks programs important. • Zuleyma Valera, member of SACReD, spoke of restorative justice philosophy as a means of conflict resolution. • Miriam Lopez, member of SACReD, thanked the City Council for including youth as a goal in the Strategic Plan; need to continue providing youth programs. CITY COUNCIL MINUTES 9 FEBRUARY 22, 2014 1 0A -9 • Sandibel Ramirez, member of SACReD, proposed City develop internship programs — school credit and transportation provided for by the City; presented over 400 petitions signed by residents supporting efforts. • Zabdi Alvarez, member of SACReD, presented petitions from over 400 residents expressing support for various goals to be included in Strategic Plan. • Neyexi Trejo, member of SACReD, spoke on substandard living conditions; proposed landlords be held accountable and rents withheld until units repaired. • Sam Romero, member of SACReD and Santa Ana Business Council, proposed City initiative a resident training program and provide very low income housing opportunities. • Victor Payan, member of United Artist of Santa Ana, thanked the City Council for including arts movement in Strategic Plan; spoke of displacement of artists in Downtown; create plan to building community and address empty store fronts. • Steve McGuigan, spoke of need to maintain West -End C.O.P. sub - station; include in Harbor Specific Plan; opined that senior citizens are fastest growing group — provide programs, facilities and dignified housing. ADJOURNED - 12:17 p.m. Maria D. Huizar, Clerk of the Council CITY COUNCIL MINUTES 10 FEBRUARY 22, 2014 1 0A -10 MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA MARCH 4, 2014 CLOSED SESSION MEETING CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 5:07 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL A. PULIDO, Mayor SAL TINAJERO, Mayor Pro Tem (5:40 P.M.) ANGELICA AMEZCUA P. DAVID BENAVIDES (5:15 P.M.) MICHELE MARTINEZ ROMAN A. REYNA (5:35 P.M.) VINCENT F. SARMIENTO COUNCILMEMBERS Absent: None STAFF Present: DAVID CAVAZOS, City Manager SONIA R. CARVALHO, City Attorney MARIA D. HUIZAR, Clerk of the Council PUBLIC COMMENTS — None COUNCIL RECESSED to Room 147 for Closed Session discussion at 5:07 p.m. CLOSED SESSION ITEMS - The Brown Act permits legislative bodies to discuss certain matters without members of the public present. The City Council finds, based on advice from the City Attorney, that discussion in open session of the following matters will prejudice the position of the City in existing and anticipated litigation: 1. CONFERENCE WITH LEGAL COUNSEL -- EXISTING LITIGATION pursuant to Paragraph (1) of subdivision (d) of Section 54956.9 of the Government Code: CITY COUNCIL MINUTES 1 MARCH 4, 2014 1OB -1 2. • Gary Fratus v. City of Santa Ana; Workers' Compensation Appeals Board case #ADJ unassigned; ADJ8268137 • Irene Gomez & City of Santa Ana v. Internal Revenue Service; James B. Hansen, Case No.: SACV 12 -02234 JVS (JPRx); Workers' Compensation Appeals Board Case #ADJADJ7729227 • JOINT ITEM — City of Santa Ana, Successor Agency and Housing Authority: Feebler vs. State of California Superior Court Case No. 34- 2012 - 80001172; Court of Appeal Case No. C073698 • JOINT ITEM — City of Santa Ana, Successor Agency and Housing Authority: Cuenca vs. State • JOINT ITEM — City of Santa Ana, Successor Agency and Housing Authority: City of Santa Ana vs. Ana Matosantos (DOF) Case No. 34- 2013 - 80001477 CONFERENCE WITH LABOR NEGOTIATOR pursuant to Government Code Section 54957.6(a): Agency Negotiators: Personnel Services Executive Director, Ed Raya Employee Organizations: Santa Ana Police Management Association (PMA) Service Employees' International Union (SEIU) Part -time Civil Service Employees Santa Ana Management Association (SAMA) Agency Negotiator: Employee Organizations: City Manager, David Cavazos Executive Management (EM) CLOSED SESSION REPORT — See Item 19A. for reportable actions. ADJOURNED THE CLOSED SESSION MEETING AT 5:55 P.M. AND CONVENED TO THE REGULAR OPEN MEETING CITY COUNCIL MINUTES 2 MARCH 4, 2014 10 B -2 CALLED TO ORDER REGULAR OPEN SESSION COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 5:57 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL A. PULIDO, Mayor SAL TINAJERO, Mayor Pro Tern ANGELICA AMEZCUA P. DAVID BENAVIDES MICHELE MARTINEZ ROMAN A. REYNA VINCENT F. SARMIENTO PLEDGE OF ALLEGIANCE INVOCATION PRESENTATIONS COUNCILMEMBERS Absent: None STAFF Present: DAVID CAVAZOS, City Manager SONIA R. CARVALHO, City Attorney MARIA D. HUIZAR, Clerk of the Council VANESSA BADILLO AND JASON BARAJAS, JACKSON ELEMENTARY JACK ABEELEN, POLICE CHAPLAIN EMPLOYEE SERVICE AWARDS presented by MAYOR PULIDO to: 25 YEARS OF SERVICE Kent M. Yamaguchi, Zoo Manager - Parks, Recreation and Community Services PROCLAMATION presented by MAYOR PULIDO to Parker Kennedy, CEO, First American Title Corporation, for his exemplary citizen participation and services to the community. PROCLAMATION presented by MAYOR PRO TEM TINAJERO recognizing DMV /Donate Life California Month. CITY COUNCIL MINUTES 3 MARCH 4, 2014 10 B -3 PROCLAMATION presented by COUNCILMEMBERS MARTINEZ and AMEZCUA recognizing the accomplishments of Santa Ana City Attorney, Sonia Carvalho and in celebration of Women's History Month. CERTIFICATES OF RECOGNITION presented by COUNCILMEMBER REYNA to Santa Ana Panthers Soccer Team for winning the Area 11 -K League Championship. Head Coach: Richard Niedermayer Jr. Assistant Coach: Richard Niedermayer Sr. Team: Daniel Acosta, Andres Clemente, Pablo Crespo, Jonathan Espinosa, Robert Herrera, Jonathon Magana, Benjamin Montoya, Andrew Ortega, Luis Quiroz, Isaac Rubalcava, Jose Ruiz, Oscar Salas and Deryck Walker. CERTIFICATE OF RECOGNITION presented by COUNCILMEMBERS SARMIENTO and MARTINEZ to America on Track for donating $45,000 to build an outside exercise gym at Memorial Park. CLOSED SESSION REPORT - City Attorney Carvalho reported that by a 6 -0 vote the City Council approved the matters listed on the Consent Calendar under Agenda Item 19A. PUBLIC COMMENT • Armando Felix, spoke in support of providing worldwide ministry services and social services for the homeless at the former YMCA facility. • Alex Vega, congratulated City Manager Cavazos on his first 100 days in Santa Ana and for his commitment to move the City forward in the right direction. • Jack Stevens, provided letter to the City Council and for the record, concerned with number of medical marijuana dispensaries and asked for assistance in addressing issue at 1800 -1820 E. Gary Ave. o Councilmember Martinez willing to work with constituent. • Carol Stevens, opposed to considerable number of medical marijuana dispensaries on Gary Avenue; opined that individuals that require medical marijuana should be obtaining at medical facilities. • Steve Ray, concerned with the public hearing process at the Planning Commission; the applicant is last presenter when in other jurisdictions they are first and allowed to provide closing remarks; unfair process for the public since they don't have opportunity to listen to presentation by applicant before their comments. • Christina Rush, spoke in support of the Bristol Street Business Coalition; urged the City Council to preserve as many businesses as possible. • Dr. Robert Gonzales, spoke in opposition to displacement of businesses along Bristol Street for the widening project; • Jeronimo Chavez, urged the City Council to allow businesses along Bristol Street to remain; accommodate bike lanes, pedestrian walkway and traffic lanes; modify City's proposed plan to allow for 120 feet; City not considering their proposal and alternatives. CITY COUNCIL MINUTES 4 MARCH 4, 2014 10 B -4 • Veronica Rosales, supports businesses along Bristol Street. • Young Lee, member of the Bristol Street Business Coalition; supports businesses on Bristol. • John Palacios, noted that staff needs direction to proceed on Agenda Item 5513; urged City Council to direct staff to work with businesses to remain at current location and eliminate full take and pursue only partial takes. • Peter Katz, spoke in support of AB1453 - build a Southern California State Veterans Cemetery; seek support from residents. o Mayor Pro Tern Tinajero expressed support for cause and asked that matter be agendized for consideration at next meeting. • Abel Ruiz, spoke on the Strategic Plan; include establishment of internship program, Restorative Justice programs in collaboration with the school; district; end contract with Immigration and Customs Enforcement (ICE) as soon as economically feasible; creation of good jobs with businesses that receive incentives from the City. • Nayetzy Trejo, spoke of need for dignified housing for very low income residents; existing quality is poor; new programs to assist this sector of the community needed; supports the Rent Escrow Account Program. • Carolyn Torres, supports additional strategies in the Strategic Plan such as collaboration /partnerships with school district; Restorative Justice program; affordable youth programs; economic development programs; protection from police abuse; and job training programs. • Theresa Dang, supports efforts by SACReD as they relate to safety and crime prevention; end contract with ICE - contradictory to values of the City; request jail accountability report to be released. • Ramon Hernandez, representing the Lowell Neighborhood Association; supports strategies as proposed by SACReD. • Marco Antonio Zeferino, asked that best decisions for the benefit of all of the residents be made by the City Council • Carlos Perea, supports all strategies proposed by SACReD specifically as they relate to safety; terminate contract with ICE. • Alan Conetzatitlan, member of Resistencia, Autonomia, Igualdad, Liderazgo (RAIZ), opposed to contract with ICE and suspected police profiling • Marilenn Montano, concerned with police profiling. • Giovani Garcia, spoke in opposition to the contract with ICE. • Madeline Spencer, mentioned the new and growing number of members that have joined the efforts led by SACReD. • Zeke Hernandez, referenced email that was transmitted to the City in February regarding parks and accessibility to urban cities; spoke in support of AB1453 regarding Southern California State Veterans Cemetery. • Maria Rosa Lopez, spoke in support of resolution to halt to deportation of illegal immigrant; and immigration reform. • Taina Lopez, representing Hermandad Mexicana, expressed support of resolution to halt deportation; City Councils throughout the Country to submit support to President Obama; agendize at next meeting and end contract with ICE. • Sergio Trujillo, representative of Hermandad Mexicana requests Council support to stop deportations. CITY COUNCIL MINUTES 5 MARCH 4, 2014 1 OB -5 • Mayor Pro Tern Tinajero, expressed support for matter; bring resolution forward for Council consideration; agendize at next meeting. City Council efforts include priority to offer dignified housing, translations services at public meetings, extensive community outreach efforts, halt impound of vehicles by unlicensed drivers; stop deportation resolution will be forthcoming. • Councilmember Sarmiento, spoke of deportation resolution that will be forthcoming; working with City Attorney on intent of resolution; opinion of residents important and considered in actions taken by elected officials — outreach efforts of Strategic Plan is example; noted that City cannot change federal policy on immigration because of limited authority. • Councilmember Martinez, applauds efforts by SACReD; supportive of open and transparent government; recounted efforts by City in past 6 years. CONSENT CALENDAR MOTION: Approve Consent Calendar Items 10A through 29A as recommended by staff with the following modifications: • Councilmember Martinez pulled Agenda Items 25C and 25E for separate discussion; • Councilmember Sarmiento pulled Agenda Item 29A for separate discussion; and • Councilmember Reyna pulled Agenda Item 25D for separate discussion. MOTION: Sarmiento VOTE: AYES: NOES: ABSTAIN: ABSENT: MINUTES SECOND: Martinez Amezcua, Benavides, Sarmiento, Tinajero (7) None (0) None (0) None (0) ADMINISTRATIVE MATTERS Martinez, Pulido, Reyna, 10A. MINUTES FROM THE REGULAR MEETING OF FEBRUARY 18, 2014 - Clerk of the Council Office MOTION: Approve Minutes. CITY COUNCIL MINUTES 6 MARCH 4, 2014 BOARDS / COMMISSIONS / COMMITTEES 13A. NOMINATE THOMAS P. MORRISSEY TO THE ENVIRONMENTAL AND TRANSPORTATION ADVISORY COMMISSION (ETAC) BY MAYOR M. PULIDO AS THE CITY -WIDE REPRESENTATIVE FOR A PARTIAL TERM EXPIRING DECEMBER 9, 2014 — Clerk of the Council Office MOTION: Appoint Thomas P. Morrissey, Ward 3 Resident, to the Environmental and Transportation Advisory Commission (ETAC). (Replaces D. Cribb). 13B. COUNCIL COMMITTEE REPORTS - Police Department MOTION: Receive and file Public Safety and Neighborhood Improvement Minutes of November 26, 2013. MISCELLANEOUS ADMINISTRATION 19A. CONFIRMATION OF CLOSED SESSION ACTION(S) — City Attorney's Office MOTION: Approve settlement agreements as follow: CONFERENCE WITH LEGAL COUNSEL -- EXISTING LITIGATION pursuant to Paragraph (1) of subdivision (d) of Section 54956.9 of the Government Code: • Gary Fratus v. City of Santa Ana; Workers' Compensation Appeals Board case #ADJ unassigned; ADJ8268137; Settlement Agreement in the amount of $59,029.30 • Irene Gomez & City of Santa Ana v. Internal Revenue Service; James B. Hansen, Case No.: SACV 12 -02234 JVS (JPRx); Workers' Compensation Appeals Board Case #ADJADJ7729227; Accepted Segregation Settlement in the amount of $70,000. 19B. EXCUSED ABSENCES — None 19C. DESTRUCTION OF OBSOLETE CITY RECORDS — Personnel Agency and Police Department MOTION: Approve the requests for the destruction of obsolete records from various City departments in accordance with the retention schedule outlined in City Council Resolution 2013 -014. The Citywide Records Retention Schedule has specific retention periods for many City documents. The Schedule is modeled after the California Secretary of CITY COUNCIL MINUTES 7 MARCH 4, 2014 10 B -7 State's sample for local government and incorporates other statutory periods applicable to Santa Ana. These are minimum retention periods. Each department makes discretionary decisions on whether to retain records past the minimum requirements. 19D. QUARTERLY REPORT FOR HOUSING DIVISION PROJECTS AND ACTIVITIES (OCTOBER — DECEMBER 2013) — Community Development Agency MOTION: Receive and file. BUDGETARY MATTERS APPROPRIATION ADJUSTMENTS 20A. AGREEMENT WITH AMERICA ON TRACK AND APPROPRIATION ADJUSTMENT ACCEPTING DONATION FOR EXERCISE EQUIPMENT AND SHADE STRUCTURE — Parks, Recreation & Community Services Agency MOTION: 1. AGMT NO. 2014 -059 - Authorize the City Manager and Clerk of the Council to execute an agreement with America On Track, subject to non - substantive changes approved by the City Manager and City Attorney; 2. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2014 -069 - Recognizing donation revenue in the amount of $45,000 in the PRCSA Fees and Donations revenue account and appropriating funds to the PRCSA Fees and Donations expenditure account for the Memorial Park Exercise Zone. AGREEMENTS 25A. AGMT NO. 2014 -060 - CINCO DE MAYO & FIESTAS PATRIAS - Parks, Recreation & Community Services Agency MOTION: 1. Authorize the City Manager and Clerk of the Council to execute an agreement with Christiansen Amusement, Inc., subject to non - substantive changes approved by the City Manager and City Attorney. CITY COUNCIL MINUTES 8 MARCH 4, 2014 ' woo lam-' 25D. 2. Revenues in the amount of $84,000 will be deposited into the Parks, Recreation and Community Services Agency revenue account for the 2014 Cinco de Mayo and Fiestas Patrias carnivals. AGMT NO. 2014 -061 - READY OC AND "IF YOU SEE SOMETHING, SAY SOMETHING TM" CAMPAIGNS (GRANT FUNDED) - Police Department MOTION: Authorize the City Manager and Clerk of Council to execute an amendment with Westbound Communications, Inc. in an amount of $385,000, subject to non - substantive changes approved by the City Manager and City Attorney. MOTION: Approve and authorize the City Manager and Clerk of the Council to execute amendments increasing compensation by $1,700,000 and extending the term for a six -month term or until the funds are expended, with an option for an additional six -month term under the same terms and conditions including compensation, exercisable by the City Manager, with the following vendors: AGMT NO. 2014 -062 - Concorde Consulting, Inc. AGMT NO. 2014 -063 - SoftMaster, Inc. AGMT NO. 2014 -064 - The Comdyn Group, Inc. AGMT NO. 2014 -065 - Telfords MOTION: Martinez SECOND: Sarmiento VOTE: AYES: Amezcua, Benavides, Martinez, Pulido, Reyna, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) MOTION: Authorize the City Manager and the Clerk of the Council to execute a second amendment with MDG Associates, Inc, to add an additional $25,000 for a total aggregate amount not to exceed $50,000, CITY COUNCIL MINUTES 9 MARCH 4, 2014 10 B -9 subject to non - substantive changes approved by the City Manager and City Attorney. MOTION: Reyna SECOND: Amezcua VOTE: AYES: Amezcua, Benavides, Martinez, Pulido, Reyna, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) MOTION: Authorize the City Manager and Clerk of the Council to execute an amendment to with Keyser Marston Associates to increase the compensation by an additional amount of $25,000, for a total aggregate amount not to exceed $95,000, subject to non - substantive changes approved by the Executive Director and City Attorney. MOTION: Sarmiento SECOND: Martinez VOTE: AYES: Amezcua, Benavides, Martinez, Pulido, Reyna, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) MISCELLANEOUS - BUDGET MOTION: Approve acquisition of real property at 202 -218 Grand Avenue and authorize City Attorney to implement Stipulated Judgment to transfer title and effectuate settlement of all acquisition issues. CITY COUNCIL MINUTES 10 MARCH 4, 2014 1OB -10 MOTION: Sarmiento VOTE: AYES: NOES: ABSTAIN ABSENT: RESOLUTIONS SECOND: Martinez Amezcua, Benavides, Martinez, Reyna, Sarmiento, Tinajero (7) None (0) None (0) None (0) * *END OF CONSENT CALENDAR ** BUSINESS CALENDAR Pulido, 55A. RESOLUTION CALLING FOR WATER SUPPLY ALERT - Public Works Agency MOTION: Adopt a resolution. RESOLUTION NO. 2014 -008 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA CALLING FOR WATER SUPPLY ALERT MOTION: Martinez SECOND: Sarmiento VOTE: AYES: Amezcua, Benavides, Martinez, Pulido, Reyna, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) *Councilmember Sarmiento abstained on Agenda Item 55B due to a conflict of interest and left the dais during deliberation of the matter. 556. RESOLUTION ADOPTING AN ADDENDUM TO THE FINAL ENVIRONMENTAL IMPACT STATEMENT /ENVIRONMENTAL IMPACT REPORT FOR THE BRISTOL STREET WIDENING PROJECT - Public Works Agency CITY COUNCIL MINUTES 11 MARCH 4, 2014 1OB -11 Item continued from the February 4, 2014 City Council meeting per staff request by a vote of 7 -0. Staff recommends further continuance to allow City Council to provide direction after the Bristol Street Widening Project Work Study Session takes place on March 18, 2014. City Council discussion ensued. Mayor Pro Tern Tinajero requested copy of proposal submitted by Business Coalition. Mayor Pulido requested options for consideration when matter discussed. Councilmember Reyna proposed alternative motion. Councilmember Martinez made friendly amendment to direct City Attorney to analysis on full and partial takes. SUBSTITUTE MOTION; Direct staff to work with businesses; City Attorney to provide analysis of full and partial takes; and bring options and impacts for consideration to the City Council within 30 days, April 1, 2014. MOTION: Reyna SECOND: Amezcua VOTE: AYES: Amezcua, Benavides, Reyna, Tinajero (6) NOES: None (0) ABSTAIN: Sarmiento(1) ABSENT: None (0) * Councilmember Sarmiento returned to the dais. PUBLIC HEARINGS Martinez, Pulido, 75A. PUBLIC HEARING — FINAL ENVIRONMENTAL IMPACT REPORT NO. 2011- 01, VARIANCE NO. 2012 -04 AND VESTING TENTATIVE TRACT MAP NO. 2012 -02 TO ALLOW A 23 -UNIT SINGLE FAMILY DEVELOPMENT AT 1584 EAST SANTA CLARA AVENUE (SEXLINGER FARMHOUSE AND ORCHARD) — CONCORDIA UNIVERSITY AND LUTHERAN HIGH SCHOOL OF ORANGE COUNTY, APPLICANTS - Planning and Building Agency Planning Commission approved recommended action on February 10, 2014 by a vote of 6 -1 (Yrarrazaval opposed). Legal Notice published in the Orange County Reporter and notices mailed on February 21, 2014. CITY COUNCIL MINUTES 12 MARCH 4, 2014 1OB -12 Staff report presentation by Acting Executive Director of Planning and Building Agency, Karen Haluza Presentation • Project Site: 1584 E. Santa Clara Ave. Farmhouse and Orchard • Farmhouse Constructed In 1914 • 5 -Acre Site • Approximately 250 Valencia Orange Trees • Sexlinger Property Background • Property served as the primary residence and orange orchard for the Sexlinger family from 1914 until 2006. • Property was annexed into the City in 1979 and zoned for residential development. • Upon her passing, Martha Sexlinger, left the property to Orange Lutheran High School and Concordia University as joint owners. • The owners have pursued the sale and development of the property in order to fund ongoing efforts at their schools. Entitlement Process Background • City received first development application in 2007, which was withdrawn. • Current development proposal received in 2010. • Environmental and public review process resulted in identification of the site as a historic resource. • City Council placed property on SA Register of Historic Places in June 2012. • Entitlement process placed on 240 -day hold to seek ways to preserve the property. • Although there was great public interest in preserving the property, the alternatives offered would have required funding for which no source was readily available. • City continued to work with property owners and preservation advocates. • A "historic preservation alternative" was added to and analyzed in the EIR. • Historic Preservation Alternative • Preserves farmhouse and garage in place on a 10,000 sq. ft. lot. • Preserves .23 acres for orange trees. • House and garage to be restored to Secretary of the Interior Standards. • Mitigates impacts to a level of less than significant. • Sold as part of the private development. • Entitlement Process Background • In all the EIR was revised /recirculated three times since July 2011 in order to respond to public comments and analyze additional alternatives. CITY COUNCIL MINUTES 13 MARCH 4, 2014 1OB -13 The applicant revised their plan to meet the "historic preservation alternative." The Planning Commission recommended approval of the revised project, which preserves the farmhouse and trees on a 10,000 sq. ft. lot, on February 10, 2014. • Proposed Project — 23 Houses • Illustrative Elevations The property owners do not currently have an agreement with a merchant builder to construct the houses. • The elevations are for illustrative purposes only. • Project Conclusions • Project is consistent with the General Plan and Zoning designations allowing for low density, single - family residences. • Project impacts have been mitigated to a level that is less than significant. Project Conclusions • If approved, the project would: ✓ Allow for the construction of 22 new single - family houses. ✓ Preserve and rehabilitate the original farmhouse and .23 -acre orchard. ✓ Allow for a reduction in setback to allow the farmhouse to remain in place. ✓ Allow for a reduction in frontage on one lot. ✓ Create a vesting tentative tract map to allow for the sale of the houses. • Recommended City Council Actions • Certify Environmental Impact Report No. 2011 -01 • Approve Variance No. 2012 -04 (a, b) • Approve Vesting Tentative Tract Map No. 2012 -02 CITY COUNCIL MINUTES 14 MARCH 4, 2014 1OB -14 Mayor Pulido opened the public hearing. The following speakers addressed the City Council on the matter: • Jeff Melching, Attorney representing the applicant, noted that CEQA overriding considerations and independent cultural analysis of historic impact have been addressed; property not eligible to be included in State and /or National Historic Home Registry; • Michael Gibbons, representing applicants Concordia and Orange Lutheran High School; supports staff's recommendation; mitigation is costly but balance provided for in recommendation is acceptable; project will create family friendly neighborhood, new homes, preserve orchard as well as farmhouse as an economically feasible dwelling unit. • Kathy Lapworth, supports revival of Sexlinger property area and staff's recommendations — preservation of old and development of new. • John Lapworth, supports recommendation; opined that wishes of Sexlinger family should be upheld. • Virginia Mayne, spoke on proposed extension of Lyon Street; opposed to opening of street to Santa Clara; concerned with traffic impacts; opined that neighborhood will be significantly impacted by project and oppose development; undue burden to surrounding area. • Debbie Merced, spoke in support of the proposed project; opined that currently a fire hazard and dirt lot; Planning Commission has included additional conditions that addresses concerns. • Angelika Kotike, objects to the opening of Lyon and Avalon streets; traffic impacts will be significant; cul -de -sac to remain and build block wall. • Long Nguyen, spoke in support of proposed development; opined that win - win because it will preserve farmhouse and attract new families to the City. • Michael Haymond, spoke in support of development and positive growth of the City. • Stephanie Heard, Santa Clara Ave. and Grand Ave. are thoroughfares and entrance; farmhouse is boarded -up; supports improvements of area; project will bring additional revenue and taxes to the City. • Michael Grant, supports project that will bring new energy and overall improve area. • Vicki Woodard Bright, supports project as enhancement to the City. • Alan Lawson, spoke on behalf of the Santa Ana Historical Preservation Society, supported City's designation of adding farmhouse to the Historic Registry; proposed recommendation will rehabilitate home, preserve small portion of orchard and is good compromise. • Brian Steffensen, opined that lot has potential to be restored and used as open space; preserve working class and agricultural roots. • Bea Tiritilli, spoke in opposition to proposed development; supports open space; thanked applicants for proposal to preserve some open space; education opportunity will be lost as well as history; preserve more of the orchard; can revitalize trees. • Nick Spain, represents the Old Orchard Conservancy, spoke in opposition to recommendation; have provided strong testimony in the past from CITY COUNCIL MINUTES 15 MARCH 4, 2014 1OB -15 preservation experts; meaning of historic property is about community; positive impact by maintaining land; commented on Madison Park Community Garden ribbon cutting and need to develop similar projects; have proposed preservation alternative that would retain 50 %. • Jeannie Gillett, opposed to proposed development; preserve historic site; EIR does not respect actions approved by the City Council in June, 2012 and does not preserve historic resource; proposal will destroy 95% of orchard; urged City Council to approve preservation alternative. • Moises Munoz Plascencia, spoke in support of open space, reduce carbon emissions; urged City Council to request additional alternatives. • Deborah Rosenthal, attorney representing the Old Orchard Conservancy; opined that CEQA is inadequate, proposal will only preserve farmhouse and 16 trees; it has been designated as an Orchard, but demolishing 95% of trees will no longer be an orchard — unique element of area; understands that property rights important to this City Council; request City Council consider alternatives. • Patrick Mitchell, spoke in opposition to proposed project; provide preservation alternative to historic area. • Steve Ray, opined that housing project not necessary; property rights noted in agenda report; historic preservation alternative should be combined as farmhouse and orchard; cultivated crops is being proposed to be significantly reduced; urged City Council to keep historic site. • Molly Goun, opined that Orange Lutheran and Concordia not vested in area; retain site as community garden, farmer's markets and educational center. Mayor Pulido closed the Hearing. Council discussion ensued. Mayor Pro Tern Tinajero, reflected on actions and opportunities given by the City Council in past two years to allow groups to work on alternatives; urged Conservancy to work with developers; proposed actions will preserve farmhouse and part of orchard. Councilmember Martinez, understands position of both sides and applauds their efforts; asked for clarification on traffic and effects. Acting City Engineer Taig commented on streets connectivity (Circulation Element) and encourages walk ability. Councilmember noted that all needs considered. Councilmember Amezcua spoke in support of development; no funding to develop or maintain the area available. Mayor Pulido asked why two exits and entrances needed for relatively small area. City Engineer Taig noted that two recommended for connectivity purposes and safety access; also block wall would not allow for sewer and water connectivity; fire department recommends 600 ft. on cul de sac. CITY COUNCIL MINUTES 16 MARCH 4, 2014 1OB -16 Councilmember Benavides requested brief update on initial EIR and mitigation measures proposed. Acting Planning and Building Executive Director Karen Haluza indicated that alternative findings considered during review. Independent consultant, Jeremy Hollins of URS Corporation, noted that property met requirements to be included in local historic registry; reviewed all alternatives. Councilmember noted that efforts had been made by City Council to allow Conservancy time to find resources needed; streets connectivity important; community garden efforts to continue in other areas of the City. City Attorney Carvalho outlined process taken by staff; reviewed different alternatives. Mayor Pulido asked about finding as designation of key recourse — farmhouse and orchard considered together. Consultant indicated that whole property considered — topography, land use, natural environments and clusters; analysis found that all elements come into play in final determination. Councilmember Sarmiento thanked all parties involved; CEQA analysis included historic preservation specialist; reasonable alternatives considered; findings by Planning Commission thoroughly vetted; finds are adequate; property rights need to be respected; appreciate comments by neighborhood. Mayor Pulido read note provided by Jeannie Gillett into the record. Suggest developer plant more orange trees around development. MOTION: Adopt a resolution. RESOLUTION NO. 2014 -009 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA CERTIFYING FINAL ENVIRONMENTAL IMPACT REPORT NO. 2011 -01 AND APPROVING THE MITIGATION MONITORING PROGRAM; APPROVING VARIANCE NOS. 2012 -04(A) AND 2012 -04(B) AS CONDITIONED; AND, APPROVING VESTING TENTATIVE TRACT MAP NO. 2012 -02 (COUNTY MAP NO. 17231) AS CONDITIONED FOR THE PROPERTY LOCATED AT 1584 EAST SANTA CLARA AVENUE MOTION: Tinajero SECOND: Amezcua VOTE: AYES: Amezcua, Benavides, Martinez, Pulido, Reyna, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) RECESSED THE CITY COUNCIL MEETING AT 10:24 P.M. AND CONVENE THE HOUSING AUTHORITY AND SUCCESSOR AGENCY MEETINGS; THE CITY COUNCIL MEETING RECONVENED AT 10:25 P.M. WITH SAME MEMBERS PRESENT. CITY COUNCIL MINUTES 17 MARCH 4, 2014 1OB -17 COMMENTS 90A. CITY MANAGER'S COMMENTS Welcomed and introduced Orange County Fire Authority Battalion Chief Anthony Espinoza who will be representing Santa Ana, 90B. CITY COUNCILMEMBER COMMENTS Councilmember Martinez: Requested clarification on Strategic Plan approval timeframe; o City Manager Cavazos noted that Strategic Plan will be approved at the next Council Meeting with funding approval at the April 1, 2014 City Council meeting. Request that all documents on draft Strategic Plan be made available to the public, including draft funding plan Requested that Strategic Plan be complete and be presented to City Council and community. Mayor Pro Tern Tinajero Congratulated the City on award winning water. Councilmember Amezcua: • Thanked all for presentations at tonight's meeting. Councilmember Reyna: • Urged all to conserve water; • Directed staff to prepare resolution in support of AB1453; and • Asked that all shop in Santa Ana. ADJOURNED - 10:45 p.m. - The next meeting of the City Council is scheduled for Tuesday, March 18, 2014 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 Locally Preferred Alignment • Harbor Blvd. Mixed -Use Plan • Public Hearing on Sexlinger Property • Adoption of Strategic Plan • General Plan Housing Element Annual Progress Report Solar Permit Fee Waiver Dangerous and Abandoned Buildings Proactive Rental Enforcement Program Renewal CITY COUNCIL MINUTES 18 MARCH 4, 2014 1OB -18 CITY COUNCIL COMMITTEE ON DEVELOPMENT AND TRANSPORTATION Special Meeting Minutes December 5, 2018 CALL TO ORDER The meeting was called to order at 5;06 p.m, in Room 1600 of the City Hall Ross Annex. ATTENDANCE The following Committee Members were present: Vincent Sarmiento, Michele Martinez, David Benavides Staff present were: David Cavazos, City Manager; Jay Trevino, Planning & Building Agency Executive Director; Karen Haluza, Planning Manager; William Galvez, Interim Exec. Director /Public Works Agency; Taig Higgins, Acting City Engineer; Melanie McCann, Associate Planner; Mark Hoffman, Consultant; and Rosa Barela, PBA Executive Secretary. PUBLIC COMMENTS Sandra Pena noted support for affordable housing for artists and requested special consideration be given to local artists and emphasized the need to work together to apply for grants to fund study programs such as the I.D.E.A. (Innovation, Design, Education and Art) District. Chris Taylor noted he would like to see the continuing discussion of the former Saddleback Inn site in terms of feature, recommending the committee be proactive to see something big and bold at the location. AGENDA ITEMS HOUSING ELEMENT Ms. McCann provided background information on the Housing Element basics which is one of the required elements in the General Plan, discussed the Santa Ana Housing Vision adding "healthy" was added to enhance the importance of health in the policy; discussed the major planning efforts and what was accomplished since the last update; discussed the affordable housing production projects, housing rehabilitation projects and special needs projects; and introduced consultant, Mark Hoffman. Mr. Hoffman provided information on some of the proposals in the draft element adding a huge amount of progress on the number of affordable housing projects; noted staff wanted to confirm they could accommodate changes against state legislation, to integrate the concept of health in all policies, and with the future update of the General Plan zoning ordinance to what extent the land use policies will be for certain areas and wanted to make sure the Housing Element reflects that direction; Discussed Goal 1: Housing & Neighborhoods the new policies of Complete Neighborhoods, Healthy Neighborhoods and Proactive Code Enforcement; the new /revised programs Building Healthy Communities, Building Community Efforts and Property Maintenance Standards (healthy housing); Goal 2: Housing Supply and Diversity the continued and new policies of District Centers and Diverse Housing Types; and the new /revised programs of the Harbor Corridor Specific 13C -1 Plan and the General Plan & Zoning Ordinance Update; the new policies of Housing Design, Affordable Component; the new /revised programs of Building Design, Housing Opportunity Ordinance and Adaptive Reuse; Goal 4: Special Housing Needs new policies of Healthy Homes and Housing Preference; new/ revised programs for Multigenerational Housing and Reducing Second Hand Smoke in Multifamily Housing. Vice Chair Martinez noted the importance of health in all policies as the California Endowment understands there is a buy -in that the city is committed as well adding she hopes the council will continue to work with them, noted with Housing Element the city is making a commitment to the residents and non - profits that have been doing the groundwork for the past four years. Chairman Sarmiento suggested district centers be reviewed every five years and noted he would like to see South Main identified as a new district center. Mr. Trevino noted the 55 corridor is a top candidate as a district center and agreed looking at centers and possibly adding, removing and altering them when updating the General Plan. Mark Hoffman noted the final two new programs to recognize undertaking the General Plan Update. Victor Payan of the United Artists of Santa Ana noted the interest in the special classification of artists for affordable housing adding artists fall within the definition of other classifications and provided information on grants to partner and pursue with the city. Vice Chair Martinez noted there has not been enough special needs housing adding it is Imperative to focus on that group and for veterans; and thanked staff for listening to the council and community. Committee member Benavides noted support for affordable housing for artists and families. Chairman Sarmiento noted on Item HE 4.8 Housing Preference that the term "Preference" be changed to possibly "Priority" Speaker representing America On Track provided information on smoke -free multifamily housing adding they have worked with Advanced Management Company and C &C Development who have voluntarily adopted smoke -free policies for their complexes in Santa Ana and noted support to adopt a smoke -free policy. Committee member Benavides noted he would like to see different options on how to promote and encourage smoke -free multifamily housing adding his concern on an ordinance making it unlawful to smoke on private property. Vice Chair Martinez noted her support of smoke -free multifamily housing policy adding developers and property managers today are supportive of this policy; noted science will speak for itself in what second hand smoke causes and thanked America On Track for their attendance. Ms. Haluza noted the program in the Housing Element does not establish definitively how It will be implemented or that it would, but will be explored further. Development & Transp. Council Committee Minutes 2 December 5, 2013 13C -2 2. Chairman Sarmiento noted these are guiding principles to set up framework and create priorities in the elements; encouraged committee members and council to comment to staff on any policy or principal they would like to see prior to it proceeding to Council, and noted the importance of the adaptive reuse opportunities. CIRCULATION ELEMENT Ms. McCann provided information on the Circulation Element noting it is a blueprint for transportation within the city with key components that include the evolution of the Master Plan of Streets and Highways, update the Bikeways Plan and create a Pedestrian Plan; discussed the Complete Street, Potential Pedestrian Opportunities with pedestrian opportunity zones and multi -use paths, and the Existing and Potential Bikeway Master Plan, provided bikeway examples, options and alternatives that the Council will make determination on. Mr. Higgins provided information on the existing, modifications to and proposed Master Plan of Streets and Highways; and provided examples of potential changes on a major arterial, Chairman Sarmiento noted that South Main Street between First Street and Warner Avenue is an important corridor for historic and commerce purposes and the need to slow down and downgrade this arterial. Vice Chair Martinez noted the possibility of using medians as bike lanes and use as multimodal, and requested staff look at the models of San Francisco and Portland who have implemented this program; noted as part of Complete Street and calming down traffic to possibly create diagonal parking so people can stop and shop at Harbor Boulevard, Fifth Street and South Main Street; requested the number of miles in the Bike Paths Class I and Bike Lanes Class II; and noted OCTA is doing bikeway plans in various districts and to work with neighboring cities for connectivity. Ms. McCann provided information on the next steps with draft Circulation Element out in early 2014 then to OCTA for their approval on some of the reclassifications, the preparation of the CEQA documentation and back to the Council in the summer for adoption. COMMITTEE MEMBER COMMENTS — None Jay Trevino noted a special meeting will be scheduled to discuss the YMCA and Third & Broadway parking structure, and parking issues in the downtown and city -wide. ADJOURNMENT — 6;49 P.M. Jay M. Trevino Executive Director Planning & Building Agency dcowmll CnOIMOVel & Tmnsp 9C\ 2,MW Pavel & Tramp CC mimtes.5"Col Development & Tramp. Council Committee Minutes 1 k-3 December 5, 2013 13C -4 CITY COUNCIL COMMITTEE ON DEVELOPMENT AND TRANSPORTATION Special Meeting Minutes December 12, 2013 CALL TO ORDER The meeting was called to order at 5:04 p.m. in Room 1600 of the City Hall Ross Annex by Vice Chair Martinez, ATTENDANCE The following Committee Members were present: Vincent Sarmiento (5:12 p.m.), Michele Martinez, David Benavides Staff present were: David Cavazos, City Manager; Jay Trevino, Planning & Building Agency Executive Director; Lisa Stork, Assistant City Attorney; Shelly Landry - Bayle, Housing Manager; Muriel Ullman, CDA Consultant; Karen Haluza, Planning Manager; Matt Foulkes, Senior Management Analyst; Gabriela Lomeli, Redevelopment Project Manager; and Rosa Barela, PBA Executive Secretary. PUBLIC COMMENTS Peter Katz spoke in support of opening Sycamore Street for future development at the 3`d & Broadway parking structure site and suggested the placement of retail on the ground floor, office space on the second floor and residential space on the third floor, and sell to a buyer who will have complete ownership and attach a homeowners association fee. Chairman Sarmiento arrived at 5:12 p.m. AGENDA ITEMS 1. DEVELOPMENT OPPORTUNITIES FOR THE CITY PROPERTY DOWNTOWN (Taken out of Agenda Order) B. PARKING GARAGE AT 3R° STREET AND BROADWAY — FOLLOW -UP ON URBAN LAND INSTITUTE (ULI) TECHNICAL ASSISTANCE PANEL AND DISCUSSION REGARDING CITY PARKING POLICIES AND STANDARDS Mr. Trevino provided background information on the ULI Mini - Technical Assistance Panel (Mini -TAP) held in late October to discuss development opportunities for the city's parking structure at 3r° Street & Broadway and the discussion on the replacement of the 440 parking spaces. The panelists suggested the city look at shared parking and parking management approaches in the downtown. Mr. Trevino noted staff requested that Dr. Rick Willson, professor at Cal Poly Pomona and author of "Parking Reform Made Easy ", speak to the Committee about parking reform and the approaches to it. Dr. Willson agreed to be an advisor on the parking issues in the downtown and the larger parking strategy city -wide. 13C -5 Vice Chair Martinez noted she had the opportunity to hear Dr, Willson's testimony to the State Legislature Transportation Committee noting he understands parking reform and noted he will be able to assist the city with this project, Dr. Willson discussed parking requirements including the goal, method and technique; the stakeholder and motivation; discussed 12 -step reform method, requirement options and developer response; noted bells and whistles of "taming" parking and supply regulations; discussed the approach and strategy for parking management, and politics and community participation. Chris Taylor, developer, noted he parked in an empty parking structure and inquired how it would be utilized to support the downtown. Dr. Willson noted he encourages cities to try and use their parking before they build and the discussed the opportunity for shared parking programs. Vice Chair Martinez noted the need for a parking management program, to evaluate and study parking in the downtown and assess if the parking from the 3`6 and Broadway parking structure needs to be replaced, noted her belief of moving forward with developer and at the same time look at parking management studies and identify the parking ratio. Commission discussion ensued on performing parking analysis, reissuing the Request for Qualifications (RFQ), and the replacement of parking. Mr. Trevino noted the next steps are for the city to work with Dr. Willson and begin initial parking reform approach of the downtown and then expand citywide, and develop a schedule. Mr. Cavazos recommended there be no added requirement for additional parking for the development project adding it is market driven. Committee member Benavides inquired if a parking analysis can be done on this property only in order to proceed with the project; noted the parking structure is full most weekends and during events; and inquired where the 440 parking spaces would be found. Motion by Vice Chair Martinez to proceed with parking management strategy with parallel paths in order to look at the different functions of shared parking and the other parking structures in the downtown and move forward with re- issuing the Third and Broadway RFQ. Seconded by Chairman Sarmiento to proceed with parking management analysis and assess if there will be a shortage of spaces, adding to implement changes recommended by the ULI panel of bifurcating the lot and having Sycamore Street run through, remove the condition on replacement of the 440 parking spaces, and remove the residential pictures in the RFQ. Vice Chair Martinez approved amended motion and approved unanimously by a vote of 3:0. Development & Transp. Council Committee Minutes December 12, 2013 136-6 Mr. Trevino noted staff will move forward on parking management and reissue the RFQ for the 3rd and Broadway site. A. YMCA PROPERTY— DISCUSSION OF RFQ SUBMITTALS AND NEXT STEPS Muriel Ullman, Consultant, provided background information on the YMCA RFQ process and presented the Committee with a RFQ Short List that listed the type of proposal, brief description /highlights, experience of developer and financial capacity. Ms. Ullman noted from the seven proposals received, staff reviewed and evaluated each one based on criteria and came up with the three developments in each category. The first proposal for Housing Development #1 proposes two development scenarios: affordable housing for low income households and Single Room Occupancy Program units for chronically homeless and high risk population adding the developer has extensive historic renovation experience and housing throughout Southern California and has experience in developing financials. The second proposal for Commercial Development #2 proposes a medical facility called a multi - purpose health, wellness and learning center, employee health, partnering with local non-profit for vocational training noting it would be a single user tenant/owner operator. The third proposal for Hotel Development #3 proposes a boutique hotel, multi- purpose event center, historic arts display and archive collection adding the developer has developed many buildings in the area and is financially secure. Ms. Ullman noted the three organizations are qualified adding staff does not feel the need to send out a Request for Proposals, noted the last step with the Committee's approval is requesting a financial pro forma which will then be analyzed by the financial consultant and interviews conducted and come back to the Council with a recommendation. Mr. Trevino noted the process was to narrow the list based on the criteria, interview the teams and make a recommendation that the Council enter into an exclusive right to negotiate with the team either the second meeting in February or first meeting in March. Vice Chair Martinez stated the Committee has not seen any of the proposals adding the process has been driven by staff and the only information they were provided with is what was based on the short list, noted support of requesting financial pro forma, and asked for a timeline of the process. Committee member Benavides noted the previous discussion by the Committee after receiving the RFQ's to invite ULI to conduct Mini -TAPS for both the 3rd and Broadway structure and YMCA building, adding the Mini -TAP was conducted for the 3rd and Broadway structure but the YMCA was tabled, noted the benefits and value of conducting a Mini -TAP for the YMCA building. Mr. Trevino noted if the Committee is interested in conducting a Mini -TAP for the YMCA staff will be supportive and schedule. Vice Chair Martinez commented on the difference between both properties and noted she would not support conducting a second Mini -TAP for the YMCA building. Development & Transp. Council Committee Minutes 13d-7 December 12, 2013 Chairman Sarmiento noted his confidence of finding a team from the RFQ short list, noted the financial pro forma is necessary adding the team needs to be financially stable, suggested moving forward on the YMCA process, requested that staff note on the Request for Council Action a ranking of the three teams and how the panel came to its decision. Committee member Benavides noted his preference to move forward and conduct a Mini -TAP for the YMCA building. Chairman Sarmiento noted if for some reason the process goes sideways, it can be revisited and a Mini -TAP conducted for the property. Motion by Vice Chair Martinez to move forward on the YMCA RFQ process, seconded by Chairman Sarmiento and approved by a vote of 2:1 (Benavides opposed). COMMITTEE MEMBER COMMENTS Committee member Benavides thanked presenters on both agenda items noted it is Informative and helpful to bring projects going forward noting appreciation of public interest. Vice Chair Martinez requested that staff provide the Committee with a year -end report of the accomplishments in 2013 and goals moving forward for 2014. Chair Sarmiento thanked Jay Trevino on behalf of the Committee for his excellent work he's done and for his service to the city and wished him well. ADJOURNMENT — 6 :46 P.M Jay M. Trevino Executive Director Planning & Building Agency JMT:rb ,UIC@4n41144mm1¢9vo! 6 ttansp FA \12�1Y13 a @v @I0 TfBn9p ¢C Mlnulea-9p4o1@I Development & Transp. Council Committee Minutes 4 December 12, 2013 13C -8 CITY COUNCIL COMMITTEE ON DEVELOPMENT AND TRANSPORTATION Meeting Minutes ,January 9, 2014 �..r.__. M ii *._i_ The meeting was called to order at 5:07 p.m. in Room 1600 of the City Hall Ross Annex. ATTENDANCE The following Committee Members were present: Vincent Sarmiento, Michele Martinez, David Benavides (arrived 5:16 p.m.) Staff Present: David Cavazos, City Manager; William Galvez, Interim Executive Director /Public Works Agency; Ryan Hodge, Assistant City Attorney; Karen Haluza, Interim Executive Director /Planning and Building Agency; Jason Gabriel, Principal Civil Engineer; and Lorrie Ortiz, PWA Executive Secretary. Consultants Present: Hal Suetsugu, Vice President/Evan Brooks Associates; Juliet Arroyo, Senior Planning Associate /Evan Brooks Associates; Cathy Higley, Vice President of Transportation /Cordoba Corporation. PUBLIC COMMENTS None AGENDA ITEMS 1. APPROVAL OF MINUTES: A. October 31, 2013 Special Meeting B. November 7, 2013 Regular Meeting Motion by Committee member Martinez and seconded by Chairman Sarmiento to approve the minutes and approved unanimously by a vote of 2:0 ( Benavides absent). Councilmembers Martinez and Sarmiento summarized for the record and future reference SB 751 which newly requires the actions and votes on public meeting motions be restated for the record, 2. WARNER INDUSTRIAL CENTER ASSESSMENT DISTRICT William Galvez introduced the item, which is a proposed self- assessment district of property owners to potentially raise funds in partnership with the city for street improvements to the Warner Industrial Center (WIC). He advised that the requesting property owners are having trouble collecting the required signatures. 13C -9 When the petitions are accepted by the city, the City Council will need to approve a study, including an engineer's report. Other council actions will need to be taken, including a full financial disclosure, before a ballot is prepared for the assessment district, due to a financial commitment that will need to be made by the city. Jason Gabriel provided background on the proposed project, stating that a group of industrial business owners, led by Ms. Gail Fosler, approached the city in 2011 concerning the concept of repairing the asphalt industrial streets in the area of WIC. There is currently no dedicated City funding for industrial streets. The affected region is 3.2 miles of local industrial streets in two areas; the streets at issue have been field- inspected by staff and found to be in need of repairs; there are approximately 26.9 miles of industrial streets in need of rehabilitation which would cost almost $63 million; this area in the WIC constitutes approximately 12% of the overall need in the city. A map of the affected area was shown. Area 1 is in the vicinity of Warner /Santa Ana River /Centennial Regional Park /OC Flood Channel. Area 2 is in the area of Segerstrom /Susan/Warner /OC Flood Control Channel. Mr. Gabriel noted that special assessment districts are governed by Proposition 218; properties that benefit would pay; require 60% of landowners to petition; a notice and public hearing are required; the process may be stopped by a majority protest. A process flow chart was provided. Total fees and costs are estimated at approximately $5 million, with the city contributing approximately 50 %. Assessment costs of approximately $13 million would be added to the property owner's portion, based on an assumed 6% interest and a 20 -year total life of the district. Chairman Sarmiento stated that the WIC assessment district is a good idea and may be a model for other industrial areas that need improvement; that it appears to be a more feasible and accelerated way of addressing inevitable improvements. Vice Chair Martinez recommended direct communication with the Finance Director and staff with regard to bonding and financing of the potential assessment district, so that payment alternatives are explored and presented to the City Council to ensure the best financial options for the city. Committee Member Benavides noted that some property owners in the vicinity of Coastal Communities Hospital are interested in making improvements to that area and inquired about the process taken by the WIC property owners. 3. STATUS OF REGIONAL SUPPORT AND STREETCAR POLICY — EVAN BROOKS ASSOCIATES AND OCTA Chairman Sarmiento stated for the record his disappointment that OCTA has not appeared at Committee meetings and Study Sessions /Council meetings. Noted that the fixed guideway project is intended to be a cooperative effort with cities Development ii, Transp. Council Committee Minutes 136-10 January 9, 2014 and the county, and OCTA should take an active role in order to jointly share information. Hal Suetsugu presented an update on the Santa Ana - Garden Grove Fixed Guideway Project. He introduced Juliet Arroyo of his staff; and Cathy Higley of Cordoba Corporation who will present the status of the Environmental Impact Report. Mr. Suetsugu noted the benefits of the project, particularly for the community to be informed of the project's importance in this densely populated region. A chronology of community outreach efforts since 2010 was provided; as well as a list of services provided to date; and forthcoming services by Evan Brooks Associates. The project's impending plans were summarized. Chairman Sarmiento commented on the TIFIA (Transportation Infrastructure Finance and Innovation Act) funding instrument, and inquired about identifying various funding sources. He advised that a federal lobbyist has been retained by the City, and they may be able to provide additional input on funding for this project. Mr. Suetsugu affirmed that he will check with OCTA to see if there are different funding strategies that may be available, including TIFIA. He stated that he will contact the City's federal lobbyist to discuss various funding tools that may be applicable; will prepare an advocacy outreach plan; and will address financial aspects of TIFIA and the Federal Transit Administration (FTA), New Starts and Small Starts. Cathy Higley provided an update on the Environmental Impact Report process. Reported that the FTA office is interested in the project. Reported that an active update and refinement has been completed to address concerns from the State Historic Preservation Office (SHPO), and will be resubmitted to FTA next week. Noted that comments have not been received concerning the EA/EIR that was submitted in October 2013. The next step will be the legal sufficiency review. Stated she will keep Council members apprised on progress and approvals, and shortly thereafter will meet with key stakeholders. Chairman Sarmiento stated that he will attend a Garden Grove City Council meeting as a representative of this Committee to help solidify support from Garden Grove. He noted the need to identify ambassadors in impact areas to help garner support for this county -wide project. Vice Chair Martinez encouraged synchronization of projects such as the Circulation Element and Complete Streets for project fusion. Development & Transp. Council Committee Minutes 13d-1 1 January 9, 2014 COMMITTEE MEMBER COMMENTS Chairman Sarmiento • Requested that the pulverization processes (cold in -place recycling or full -depth reclamation) again be utilized for the proposed WIC project, since that process has been cost - effective and environmentally - friendly. • Suggested coordination of a meeting with OCTA's Director concerning the Fixed Guideway Project. • Recommended that consultants get in touch with Holland & Knight to assist with identifying funding tools. • Requested financial information and timelines for operating and managing the Fixed Guideway project, to enable the city to respond to the community and to facilitate support for the project. Vice Chair Martinez • Recommended coordination of meetings with new OCTA Board members due to recent changes on their Board; one -on -one meetings may be helpful to the progress of the Fixed Guideway project. Committee member Benavides • Requested that staff/contractors advise Committee Members on how to facilitate and streamline the outreach for the Fixed Guideway project in order to remove roadblocks, due to the importance of the project in the region. 2M Edwin "William" Wez, P.E. Interim Executive- Director Public Works Agency MR rmR'r cc AOnnluu MA",I I Development ,& Transp. Council Committee Minutes 136-12 January 9, 2014 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: CITY OF SANTA ANA GENERAL PLAN HOUSING ELEMENT ANNUAL PROGRESS REPORT CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ►m3i1T/ ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s` Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize submittal of the General Plan Housing Element Annual Progress Report to the State of California Housing and Community Development (HCD). DISCUSSION The General Plan Housing Element is a comprehensive planning document designed to address current and future housing needs for Santa Ana and surrounding region. The housing vision is expressed in the goals, policies and implementation programs as stated in the Housing Element. The purpose of the Housing Element Annual Progress Report (Exhibit 1) is to describe the activities and accomplishments made in 2013 to implement the City's housing vision. In particular, the report includes a summary of Santa Ana's progress in meeting its share of the Regional Housing Needs Allocation (RHNA). As detailed below, of the 3,393 RHNA allocation assigned to Santa Ana for the prior planning period 2006 -2014 a total of 1,438 new housing units, or 42 percent of the overall RHNA new construction target, has been completed through December 2013. Progress Towards 2006 -2014 RHNA Goal Total Housing Total Remaining units by RHNA by Income ',fgcome ;allocation ". 2006 _2007 2008 2009 2010. 2011 2012* 2013* 2014 Income Levels Very °Lbw , ? 694. 0 0 6 0 26 123 65 0 220 474 Low . -574 0 0 0 5 0 0 3 0 8 566 "Moderate -' 665 0 0 0 0 0 4 5 12 21 644 �Abome!]V . i °1,461 67 109 506 97 34 64 309 3 1,189 272 Remaining Need for prior RNHA period Total RHNA: 3,393 67 109 512 102 60 191 382 15 1,438 ft ►► 1,956 * Based on building permits issued 19C -1 Housing Element Progress Report March 18, 2014 Page 2 Housing Element Annual Progress Reports are due to the State Department of Housing and Community Development (HCD) and the State Office of Planning and Research in April of each year if a charter city's housing element identifies the Acquisition and Rehabilitation of existing housing to meet Regional Housing Need Allocation (RHNA) for the construction of new housing. In addition, the Progress Report is required to be eligible for certain State funding programs such as the Housing Related Parks Program (HRP). Per Government Code 65400, the report is to be considered at a public meeting before the legislative body where members of the public may provide testimony and written comments. FISCAL IMPACT There is no fiscal impact associated with this item. Karen Haluza Interim Executive Director Planning and Building Agency MM:rb mm \Housing \RH NA %nnualreport\2013 \R FCMarch 18 Exhibit: 1. General Plan Housing Element Annual Progress Report 19C -2 City of Santa Ana ANNUAL GENERAL PLAN HOUSING ELEMENT PROGRESS REPORT Submitted by Planning and Building Agency April 1, 2014 *:/:11 :111511 19C -3 City of Santa Ana ANNUAL GENERAL PLAN HOUSING ELEMENT PROGRESS REPORT (2013) TABLE OF CONTENTS I. Contact Information II. Progress Report: Attachment 1 • Table A: Annual Building Activity Report- Low -, and Very Low - Income Units and Mixed - Income Multifamily Projects • Table A2: Annual Building Activity Report - Summary for Units Rehabilitated, Preserved and Acquired pursuant to GC Section 65883.1(c)(1) • Table A3: Annual Building Activity Report Summary for Moderate - and Above Moderate - Income Units • Table B: Regional Housing Needs Allocation Progress • Table C: Program Implementation Status 19C -4 MAYOR Miguel A. Pulldo MAYOR PRO TEM Sal Tinajero COUNCILMEMBERS Angelica Amezcua P. David Benavides Michele Martinez Roman Rayne Vincent F. Sarmiento CITY OF SANTA ANA PLANNING & BUILDING AGENCY 20 Civic Center Plaza P.O. Box 1988 . Santa Ana, California 92702 www.santa -arl rg/pba Department of Housing and Community Development CITY MANAGER David Cavazos CITY ATTORNEY Sonia R. Carvalho CLERK OF THE COUNCIL Marla D. Huizar ANNUAL GENERAL PLAN HOUSING ELEMENT PROGRESS REPORT CONTACT INFORMATION City or County Name: City of Santa Ana Mailing Address: 20 Civic Center Plaza, Santa Ana, CA 92701 Report Contact Person: Karen Haluza Title: Planning Manager Phone: (714) 667 -2728 FAX: (714) 973 -1461 E -mail: khaluza(a.santa- ana.orq Reporting Period by Calendar Year: from Jan. 1, 2013 to Dec. 31, 2013 SANTA ANA CITY COUNCIL Miguel A. Pulido Sal Tinalem Vincent F. Samtlento Mil Madlnez Angelloa Amezcue P. David Benl Roman Rayne Mayor Mayor Pro Tom, Ward B Ward Ward Ward Ward Ward MPulldoOleante- ana.ora STlnaleror@aenta- ene.om VSermlontormeanta- �asm AAmezwe2beanta-ana.am Daenavidim ASanta-ane om RRevnaldumteana.ora a � 0 §k $k LU2J 0 ate\ w §e LU lu G7 k� z:t 2 / )\ /k §0 k£ k| jf ` E �)) {` !! {] /k §\ )\ k 1§C- #� ƒ\ \() \ \\ 00 \ \\ \\ /) ( \ f ■ X10 \ /\ 0 )) 2 , , _ k !| _ _ ® ! 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O v @ LL N T 3 19C -25 » } )§ ]§ ce§ °)& u CL �§\ @( k2 i « $ \ } \ \ \\\ \ \ \f �\ \\\ \ \\ \2 /} \;2\ — ) \))E C) E : Lo 19C-26 \\ \\ \ \§ \0 _ \ ( { \E/ a) }) �Ej(\ ` E!5 _ K/ 'E .. a e \\\ \ \ \f �\ \\\ \ \\ \2 /} \;2\ — ) \))E C) E : Lo 19C-26 O • MARCH 18, 2014 TITLE: REQUEST FOR PROPOSALS FOR THE MODERNIZATION OF DOWNTOWN PARKING METERS CITY MANAGER IaXdo7t17i IT, 1:1k, 167:17_���C�7TI CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1st Reading ❑ Ordinance on 2 "tl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the Community Development Agency to release a Request for Proposals to qualified firms for the purchase and installation of Smart Meters to replace regular on- street meters in Downtown Santa Ana. DISCUSSION Improving the experience of visitors to Downtown and their ability to access parking remains a priority for Santa Ana. In addition, modernizing parking meters in Downtown is necessary in order to achieve parking improvements. As the result of a 2013 trial of 50 smart meters in Downtown, including ten with ground sensors, staff observed improvements in both customer service and parking meter revenue. Both parking control officers and parking meter technicians received positive comments from users regarding the flexibility of payment option and the Police Department reported that their violation /citations were reduced. As a result of this positive experience, staff recommends soliciting proposals to purchase and install Smart Meters to replace the regular existing Downtown parking meters. The advantages of Smart Meters include the overall enhancement of the parking experience, an increase in parking space turnover, increased customer satisfaction by minimizing the frustration of coins, increase in revenue, and access to solar powered capability. Smart Meters will provide for: • Multiple payment options of coin, credit /debit, token and smart card • Pay by cell (remote payment option) • Access to real -time data • Web -based management system • Solar -power technology • Wireless communication to sensors 19D -1 RFP Smart Meters March 18, 2014 Page 2 When paired with ground sensors, which detect the absence and presence of a vehicle, Smart Meters can be reset when a vehicle leaves the space. The data management system can easily generate reports on each individual pole showing parking revenue peak times and form of payment. Alerts are able to be sent by text or email on the status of meters and sensors including battery status, full coin box and any fault such as coin or credit card jam. In addition, rate changes and hourly settings can be made by remote location, to improve parking meter program efficiency. The meters can be retrofitted into existing meter poles by replacing the meter mechanism and top cover of the meter only. This provides an economical method of upgrading without completely changing the existing meter infrastructure. Based on the trial period analysis, the expense associated with the purchase of 500 meters and 500 sensors is estimated at $400,000. Funds to purchase the smart meters will be borrowed from the General Fund and through increased parking revenues of 20% to 40 %, the City anticipates recovering the initial investment within 18 months. Should the actual results be consistent with the trial, approximately $20,000 of additional income will be generated each month from these smart meters. Revenue may vary depending upon placement of the smart meters and vehicle parking at these locations. As part of the Request for Proposals process, staff will review, rate and rank the submissions and a formal recommendation will be submitted to the City Council for consideration. FISCAL IMPACT There is no fiscal impact associated with this action. Scott Kutner District Manager Community Development Agency SK/TE /kg Exhibit: 1. Request for Proposals 19D-2 REQUEST FOR PROPOSALS RFP 14 -012 MODERNIZATION OF DOWNTOWN PARKING METERS CITY OF SANTA ANA Community Development Agency 20 Civic Center Plaza Santa Ana, CA 92701 Issue Date: Deadline to Submit Questions: Response Posted on City Website: Proposal Due Date: Presentation/ Interviews: Projected Award Date Terri Eggers Project Manager (714) 647 -5378 Office (714) 647 -6549 Fax teggers@santa-ana.org KEY RFP DATES Wednesday, Monday Friday Monday Tentative Tuesday 1 19D-3 March 19, 2014 March 31, 2014 April 4, 2014 April 21, 2014 May 6, 7 or 8 July 1, 2014 L ; *X_111Yil NOTICE INVITING PROPOSALS NOTICE IS HEREBY GIVEN that proposals will be received from qualified firms to provide credit card enabled single space parking meters. Responses to the Request for Proposals (RFP) will be accepted until Monday, April 21, 2014 at 4:00 P.M. MAILED, DELIVERED BY HAND or COURIERED proposals will be accepted as follows: City of Santa Ana Community Development Agency (6" Floor) Attention: Terri Eggers 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 Terri Eggers at teggers @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 19D-4 C CITY OF SANTA ANA COMMUNITY DEVELOPMENT AGENCY REQUEST FOR PROPOSALS FOR CREDIT CARD CAPABLE PARKING METERS, PARKING SENSORS, & DATA MANAGEMENT SYSTEM (RFP) PAGE 1 SECTION 1 - BACKGROUND 5 1. INTRODUCTION 5 2. BACKGROUND 5 3. SCHEDULE OF EVENTS 5 4. GENERAL INFORMATION 6 5. AGREEMENT TERM 6 6. COORDINATION 6 7. CONTRACTOR RESPONSIBILITIES 7 8. CITY BUSINESS LICENSE 7 9.. RULES FOR PROPOSALS 7 10. EMAIL COMMUNICATION AND INTERPRETATIONS /CLARIFICATIONS 7 11. ADDENDA 7 II SECTION II - PROPOSAL 1. RFP RESPONSE SUBMITTAL 7 2. EVALUATION CRITERIA 9 3. EVALUATION AND SCORING 9 4. PROPOSAL FORMAT AND CONTENT 10 1. Technical specifications 10 2. Total cost to City 10 3. Approaches to purchase, leasing or financing agreements 10 4. Approach and schedule for implementing meter technology 10 5. Methodology for establishing wireless communications 11 6. Approaches to innovation and uniqueness 11 7. Due diligence checks 11 5. OFFEROR RESPONSIBILITY 12 6. PUBLIC RECORD 12 7. CONFIDENTIAL INFORMATION 12 III SECTION III — SCOPE OF WORK 12 IV SECTION IV - SOLICITATION PROCESS AND PRECEDURES 15 1. EVALUATION AND SELECTION 7 1901-5 15 2. INSURANCE 16 3. HOLD HARMLESS /IMDEMNIFICATION 17 4. NOTICE 17 5. TERMINATION 18 6. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS 18 7. ASSIGNMENT 18 8. JURISDICTION - VENUE 19 9. FINES 19 EXHIBIT A- 1 PRICING PROPOSAL 20 EXHIBIT A SANTA ANA METER LOCATIONS 21 EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL 22 GENERAL LIABILITY POLICY EXHIBIT C REFERENCES AND RELEVANT WORK HISTORY 23 EXHIBIT D PROPOSAL REQUIREMENTS CHECKLIST 25 EXHIBIT E PROPOSALS CONTRACT AND AGREEMENT - PROPOSERS 26 STATEMENT EXHIBIT F PROPOSAL CONTRACT AND AGREEMENT - CERTIFICATION 27 OF NONDISCRIMINATION BY CONTRACTOR EXHIBIT G NON - COLLUSION AFFIDAVIT 29 19D-6 CITY OF SANTA ANA COMMUNITY DEVELOPMENT AGENCY REQUEST FOR PROPOSALS FOR PARKING OPERATIONS AND MANGEMENT SERVICES (RFP) SECTION I - BACKGROUND 1. INTRODUCTION The City is requesting proposals for the purchase, training; and the secure communications of approximately 500 single -space parking meters that are credit card capable. These meters will retrofit into existing parking meter housings in the core of our downtown where there is the highest parking demand. This RFP includes both the purchase price of the meters, training, establishing secure, encrypted credit card communication with the City's merchant account provider and the wireless network necessary to operate, maintain, and communicate with each credit card capable parking meter. The City also seeks the vendor to furnish, to work with City parking technicians to install, and to support an integrated network of parking sensors for designated meters (200 -500,) and related hardware, software, and mobile smart- phone applications. The sensors need to be able to upload current parking conditions to mobile applications. 2. BACKGROUND The City of Santa Ana provides about 1,300 parking meters for convenient, short -term parking, of which approximately 500 are in the Downtown. area. Existing parking meters are coin - operated digital meters and are installed, maintained and collected by the Parking Meter staff in the Finance & Management Services Agency. Parking enforcement is managed by the Police department. The current parking meter rate is $.75 - $1.00 per hour and the hours of enforcement are Monday through Saturday, 8am to 8pm. 3. SCHEDULE OF EVENTS RFP Issue Date March 19, 2014 Offerors' Written Inquiries Due March 31, 2014 RFP Responses Due April 21, 2014 Interviews /Vendor Demonstrations May 6, 7 or 8 Formal Council Approval July 1, 2014 19D-7 4. GENERAL INFORMATION A. 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 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 of 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). Subcontractor(s) shall be responsibility of the prime Contractor and the City shall assume no liability of such subcontractor(s). 5. AGREEMENT TERM The firm(s) selected for this implementation will be expected to offer adequate personnel and equipment needed to complete the terms in this RFP. The implementation could include an outright purchase of the selected equipment or a financing /lease agreement for the use of the equipment over a defined period of years, to be determined by mutual agreement of the City and the successful Offeror(s). The implementation will not include privatization or outsourcing of parking meter operations. If for any reason either party to the agreement wishes to terminate the agreement early, the terminating party must give 30 calendar days notice of termination in writing to the other party. 6. 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. 11 19D-8 7. 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. 8. 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 project manager or designee prior to commencing any work in Santa Ana. 9. 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. 10. 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 the request. All communication must be made in writing via e-mail to the Project Manager at teggers@_santa-ana.org no later than 4:00 PM on March 31, 2014. 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, 11. 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 /bids- rfas /default.aso. 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. SECTION II — PROPOSAL 1. RFP RESPONSE SUBMITTAL a. Submittals shall be submitted in a sealed envelope and received no later than 4pm April 21, 2014, at the following location: City of Santa Ana Community Development Agency, 20 Civic Center Plaza, Santa Ana CA 92701, 6th floor. 7 19D-9 b. Offeror must submit an original and eight (8) copies of the RFP response. C. Late proposals will be rejected regardless of the reason, including mail delivery problems beyond Offeror's control. Offerors mailing their responses should allow sufficient time to ensure delivery by the date and time specified. The following guidelines are provided to ensure the equitable evaluation of competitive sealed proposals. Proposals should be prepared as closely as possible in accordance with the instructions outlined in this section. Offeror is advised to read this RFP in its entirety. Failure to read and /or understand any portion of this RFP shall not be cause for waiver of any portion of the RFP or subsequent contract. 19D -10 2. EVALATION CRITERIA To be considered responsive, the Offeror must provide all materials outlined in Attachment D (within the 10 double sided or 20 single sided page maximum, excluding the cover page, letter transmittal, table of contents, management reports and marketing brochure appendices.) Offeror's proposal shall relate specifically to the following items for evaluation and selection purposes: 1. Technical specifications shall include the specific specifications and capabilities of the equipment proposed for the City of Santa Ana implementation. Particular 25 consideration will be given for meter specifications that enable the City to understand the full capabilities of the Offeror's system. 2. Total cost to City, if any, including fees initially collected for implementation and 25 collected for ongoing maintenance and operations. Offeror shall be as specific as possible and provide all known costs associated with the implementation and operation of the meters. 3. Approaches to purchase, leasing, or financing agreements for proposed equipment. Offeror shall describe the costs associated with each and the benefits and 20 disadvantages of each approach. 4. Approach and schedule for implementing the desired meter technology. Offeror shall 15 define how they intend to implement the system, from selection through ongoing maintenance and operations. Offeror, at a minimum, shall include: implementation milestones, specific installation steps, replacement parts process, back -end software and remote meter programming management, equipment warranty information, training plan, method /approach for credit card processing, marketing and education plan, and ability to add features. 5. Methodology for establishing, operating, and maintaining wireless communications between the proposed equipment, back -end software, and the City of Santa Ana. Offeror shall describe their process for re- establishing wireless communications in the 10 event of a failure. Provide sample of management reports that the City of Santa Ana will be able to get from your proposed system. 6. Approach to innovation and uniqueness specific to the proposed equipment or implementation approach, which sets the Offeror's proposal apart from other 10 prospective offerings. Identify specific enhancements proposed for Santa Ana. 7. Due diligence checks on other parking meter installations by City of Santa Ana staff. Offeror shall disclose any problems associated with their meter operations in other cities or any other adverse issues affecting the Offeror's reputation within the industry. 20 Maximum points will be awarded to firms with no reported or identified adverse issues with projects in other cities. Total Points 125 3. EVALUATION AND SCORING An evaluation team composed of representatives of the City will evaluate proposals on a variety of quantitative and qualitative criteria. The selected proposal shall provide the most cost effective approach that meets the City's requirements. The City reserves the right to reject any or all proposals, or to make no award. The City also reserves the right to require modifications to initial proposals or make partial awards to multiple vendors, and to subsequently follow -up with requests for additional information, including, but not limited to, follow -up interviews. 0 19D -11 4. PROPOSAL FORMAT AND CONTENT The written proposal shall be signed by an individual authorized to bind the Offeror. The proposal shall provide the name, title, postal address, email address, and telephone number of individuals with authority to contractually bind the company and who may be contacted during the period of the contract. All fees quoted in the proposal shall be firm and fixed for the full trial period and any extension. Please refer to Attachment D. The proposal shall contain the following: a. Cover page (excluded from the 10 double -sided or 20 single -sided page limit) b. Signed Letter of Transmittal (1 single -sided page, excluded from the 10 double -sided or 20 single -sided page limit) Offeror shall provide a one -page Letter of Transmittal that is signed by an individual authorized to bind the Offeror. The Letter of Transmittal shall include the name of the Offeror, contact person, title, postal address, telephone number, facsimile number, and e-mail address of the individual with authority to contractually bind the company and who may be contacted during the period of the contract. C. Table of Contents (excluded from the 10 double -sided or 20 single -sided page limit) d. Proposal (10 double -sided pages or 20 single -sided pages) 1. Technical specifications The technical specifications section shall include the specific specifications of the equipment proposed for the City of Santa Ana. This includes, but it not limited to, the housing, battery, size of unit(s), interface, communications features, mounting hardware, solar panel capabilities, operating system, back office software, credit card processing, coin processing, alarms, status reporting, enforcement compatibility, audit capability, etc. Please be as specific as you can with meter specifications so that the City can understand the full capabilities of the Offeror's system. 2. Total cost to City, if any, including fees initially collected for implementation and collected for ongoing maintenance and operations by the Offeror. Describe the costs associated with implementation, ongoing operations and maintenance, credit card processing fees, service call fees, replacement parts, add -on features, etc. Also provide variance of costs based on the proposed financing options (purchase, lease, lease purchase). The Pricing Proposal as Attachment A -1 should be used as a guideline to complete your cost estimations (Pricing Proposal worksheets are excluded from the 10 double -sided or 20 single -sided page limit). 3. Approaches to purchase, leasing, or financing agreements Please describe alternative approaches to purchase or finance of the proposed equipment, including but not limited to, outright purchase, lease, or lease purchase. Please describe the costs associated with each and the benefits and disadvantages of each approach. Again, this information should be provided as part of the Pricing Proposal guideline in Attachment A -1. 4. Approach and schedule for implementing the desired meter technology 10 19D -12 The approach and schedule should define how the Offeror intends to implement the system, from selection through ongoing maintenance and operations. The approach should include, at a minimum: a. Implementation schedule — milestones from contract signing through delivery, installation, initial operability, and ongoing maintenance. b. Installation steps — responsible parties and specific installation steps for proposed equipment c. Operations and Maintenance — ongoing maintenance, life expectancy, process for receiving replacement parts, location of replacement facility, typical parts delivery schedule. d. Software and Management — backend software, reporting capabilities, ongoing management functionality, ability to remotely manage, access, and modify meter programming, etc. e. Warranty options and information — provide warranty information for year one, and the options for extended warranties through year five. Please provide warranty language. f. Training plan — plans for providing training for operation, programming, maintenance, testing, parts replacement, management and back end software, wireless communication. g. Credit card processing — methods and approach to handle the credit card processing component of the ongoing meter operations. h. Marketing and education — plan for assisting the City of Santa Ana with initial marketing, education, and rollout of the new equipment. L Modularity— describe the ability to add features to the proposed equipment, including (but not limited to) pay -by -cell; smart phone applications, and vehicular sensors. 5. Methodology for establishing wireless communications Please describe the Offeror's approach for establishing, operating, and maintaining wireless communications between the proposed equipment, back end software, and the City of Santa Ana. Please describe the process for re- establishing wireless communications in the event of a failure, including alternate plans and reimbursement for revenue lost. Also provide a sample of the management reports that your proposed system will provide to the City of Santa Ana (sample management reports are excluded from the 10 double -sided or 20 single -sided page limit and should be placed in a separate appendix). 6. Approaches to innovation and uniqueness Please provide a description of innovative or unique features, specific to the proposed equipment or implementation approach, which set the Offeror's proposal apart from other prospective offerings. This could include, but is not limited to, add -on features, unique interface components, advertising or marketing ability, or local, small and /or disadvantaged business participation, etc. 7. Due diligence checks on other parking meter installations Please provide an honest and brief statement on your firm's reputation within the industry as it pertains to customer service, product reliability or any other issues associated with your delivery of services 11 19D -13 within another jurisdiction. If there are no adverse issues, state this in your response. Your response should include legal and non -legal investigations or actions. 5. OFFEROR RESPONSIBILITY It is the responsibility of each Offeror before submitting a proposal to: Examine thoroughly the Proposal document and other data identified in the Proposal document. Consider applicable laws that may affect cost, progress, performance, or furnishing of the work. • Study and carefully correlate Offeror's knowledge and observations with the Proposal document and other related data. • Promptly notify the City of all conflicts, errors, ambiguities, or discrepancies which an Offeror has discovered in or between the Proposal document and such other related documents. 6. PUBLIC RECORD 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.: Terri Eggers, 20 Civic Center Plaza M -25, Santa Ana, CA 92701. 7. CONFIDENTIAL INFORMATION The City of Santa Ana is obligated to abide by all public information laws. If an Offeror believes that a specific section of its proposal is confidential, the Offeror shall isolate the pages marked "confidential" in a specific and clearly labeled section of its proposal. The Offeror shall include a written basis for considering the marked pages confidential including the specific harm or prejudice if disclosed and the City will review the material and make a determination. SECTION III - SCOPE OF WORK The City desires to engage one or more qualified Offerors to provide the installation of approximately 500 new smart parking meters, 200 -500 ground sensors and web -based technology in the downtown area of the City of Santa Ana. Offerors shall have a significant and successful history in the implementation of parking technology; Payment Card Industry (PC[) certification and completed similar projects. The City may elect to purchase more or less, depending on funding availability, available technology, and decisions on new meter locations. Sensors may be phased in over time with approximately 200 sensors purchased at the same time as the meters with additional sensors to follow. The purchase price for the second installment of sensors must match the purchase price of the first installment if purchased within 12 months of the initial installation date. 12 19D -14 City staff will determine where meter mechanisms and sensors will be deployed. The contractor will deliver complete meter mechanisms, work with staff to install the meter mechanisms into existing meter housings, provide and maintain the meter management system, assist with setting up the single /double space parking meter ( SDSPM), conduct training, and troubleshoot problems as they arise. The City's intent is for the single parking meter mechanism and meter dome to be retrofitted into the city's current single -space meter housings, without any changes to the key /lock systems, coin vault, or cash collection operations, and for a wireless system to be connected to the meters to provide information and to manage the operation, maintenance, collections, and reports. The City's current parking meters are Duncan Industries Model Eagle CK. The SDSPM are to operate in an independent network environment, meaning that each meter is wirelessly enabled to communicate with the provider's parking meter management system without the installation of any additional networking equipment. Should the network environment temporarily fail, the single -space meter shall be capable of operating in a stand -alone mode until the network environment is restored. In addition, the meters shall: • Accept credit and debit card payments. • Accept coin payment. • Fit into the existing Duncan parking meter housing of the City of Santa Ana. • Include a standard solar panel for charging and maintaining battery power. • Provide real -time maintenance status updates. • Allow for variable rate structures and the ability to conveniently and remotely change rates by the City. • Allow for variable time - limits and time enforcement structures, including the ability for the City to conveniently and remotely set special event time structures. • Ability to communicate changing rate structures at the single -space meter. • Be compatible with pay -by -cell phone payment technology. • Be future compatible with smart phone applications that provide general information about the city's parking system and /or real -time parking availability. • Compatible with license plate reader technology (preferred, not necessary.) • The meter must have real -time alarms and status reports for maintenance needs, reporting by text messages, or a -mails to staff resources designated by the City as well as the wireless based management system. • Utilize wireless technology for 2 -way communications with the parking meters to monitor payments, status and usage; and provide remote diagnostics and the ability to change settings remotely (e.g., pricing or out -of- service notifications), etc. 13 19D -15 • Have extended battery life capabilities (minimum 12 months before replacement). • Must retain at least one full year's data during a power failure or battery removal. • Must use LCD or LED technology on display panels. Must also have sufficient backlight so meter can be clearly seen at night. • The display needs to alert parkers if the machine is out of order or coin or credit card only. • Meter must adjust the amount of time purchased with a credit card and show the equivalent of time purchased. • The customer should always be able to cancel the transaction without penalty prior to accepting the transaction. • In the event of a malfunction to the coin acceptor, the meter must be able to operate independently using a credit card. • The software and the application must be compliant with the Payment Card Industry (PCI) Data Security Standard. • The software shall provide a variety of reports including, but not limited to, financial activity, usage, maintenance, and user trends. • The wireless based management system should enable the control of the mechanisms from the central office; to enable quick and effective changing of data related mechanism, the replaced unit, and the replacement unit. • The management system should have the capability to track audit amounts by mechanism, route, and any other selected meter configuration thereof. • Login and secure access to the wireless based management system via the internet. • The management system must be able to notify service technicians and key personnel of fault and status issues via text or e-mail. Management system needs to present a full set of reports. These need to include revenues for all transactions, by meter, by route, or by zone. Please list and provide examples of reports included. The successful Offeror shall: a. Provide training necessary for staff to use any parking meter and parking meter management software used in the implementation and subsequent defined use period (based on outright purchase or financing /leasing of meters). b. Provide training necessary for staff to maintain and operate parking meter technology after implementation (based on outright purchase or financing /leasing of meters). 14 19D -16 C. Provide training necessary for staff to utilize the wireless communication system to communicate with the parking meters used in the implementation. Maintain or assist in the maintenance of the meters during the first 120 days of the implementation to ensure that all meters are in good working order and can accept coin and credit/debit payments used throughout the initial period. e. Coordinate with the City of Santa Ana Finance Department to update the City's credit card merchant account to include parking meters as needed. f. Provide alternative financing or leasing options for the City to evaluate in the purchase or use of the proposed smart parking meter implementation, including but not limited to 1) lease purchase and /or 2) delayed payment through offset leasing agreement. g. Provide two (2) alternative solutions including (a) a complete outsource where all card processing activities are performed by the Offeror and (b) a solution where the card validation is performed using the contracted company hired to process credit card payments by the City. h. Must be able to work with the City and the contracted company hired to process credit card payments by the City to process payments. i. The Offeror must be certified according to the Payment Card Industry (PCI) Data Security Standard. j. Provide warranty information for parking equipment, equal to or exceeding one year from installation. k. Provide assistance with initial marketing and education of new equipment, including materials, business outreach, and initial implementation outreach for users. SECTION IV - SOLICITATION PROCESS AND PROCEDURES EVALUATION AND SELECTION a. RFP responses should be concise, well- organized according to the requested information, clearly written and limited to no more than ten (10) double -sided or twenty (20) single -sided pages, (excluding cover page, table of contents, letter of transmittal, and product brochure appendix). The review process emphasizes the responsiveness of the RFP Response to the requirements outlined herein. RFP Responses that are not written specifically in response to this request may not receive serious consideration. b. After evaluating all submissions, the Offerors will be invited to conduct on -site interviews tentatively scheduled for May 6, 7 or 8, 2014. For on -site presentations, it is expected that the Offeror will provide demonstrations of actual equipment and software, as well as a presentation of implementation approach and schedule, financing options, cost estimates, financing options, and the training and outreach process. C. The firms under consideration for this RFP will be evaluated by an evaluation committee. The City reserves the right to request supplemental information that the Evaluation Committee deems necessary to make a selection. The Committee may be supplemented by outside professionals or professionals from other City departments who can provide additional expertise. 15 1901-17 2. 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 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. 2. 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. 4. The following requirements apply to the insurance 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 of self- insurance programs maintained by the City; and (c) contain standard separation of insured(s) provisions. A sample additional insured endorsement is attach hereto as Exhibit C. Contractors 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 of changed in any other material aspect without thirty (30) days prior written notice to the City. 5. If Contractor fails or refuses to produce or maintain the insurance required by this section of 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 16 19D -18 time and materials expended prior to notification of terminations. 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. 3. 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, attorneys' 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 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 principles, 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 limitations upon the amount of indemnification to be provided by the Contractor. 4. 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: Terri Eggers City of Santa Ana Community Development Agency 20 Civic Center Plaza (M -25) Santa Ana, CA 92701 Fax 714.647.6549 17 19D -19 The City reserves the right to terminate the contract, without penalty, for cause immediately or without cause. 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 in 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 Contractors 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. 2. This agreement may be terminated without cause by the 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 Project Manager or designee, the 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 required by this Agreement. 6. 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. 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. 7. 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 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. F" 19D -20 8. JURISDICTION — VENUE 9. FINES 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. The Contractor shall be liable for all violation fines levied against the City by State or Federal Agencies and Courts such as, but not limited to, oil or fluid leaks. Pte] 19D -21 TO BE INCLUDED IN PROPOSAL EXHIBIT A -1 PRICING PROPOSAL VENDOR NAME DATE I. PARKING SENSOR PURCHASE AND INSTALLATION PRICING Parking sensor and installation pricing should assume and include all associated network hardware and software. Item Description Quantit Unit Price Extended Price Meters /Installation per space 450 -500 $ $ Sensor /Installation per space 200 -500 $ $ Other $ $ 2.ON -GOING COMMUNICATION AND MANAGEMENT FEES List all applicable recurring monthly fees associated with the system, including communication fees, management fees, connection and transaction fees, etc. Narrative to be attached describing each item in detail. Item Description Interval Unit Unit Price Quantit Extended Price Example: Communication Fee Months Sjaace 15.00 500 1? 15-00 3.REPLACEMENT PARTS PRICING Item Description Unit Price 20 19D -22 EXHIBIT A CITY OF SANTA ANA COMMUNITY DEVELOPMENT AGENCY REQUEST FOR PROPOSALS FOR THE MODERNIZATION OF DOWNTOWN PARKING METERS THIS DOCUMENT IS FOR INFORMATION PURPOSES ONLY TO ILLUSTRATE EXISTING CITY OF SANTA ANA PARKING METER City of Santa Ana Downtown Parking District PARKING METERS ... Meter Boundaries 11111 Downtown - 464 Spaces Mott to civic cmffmonino r m Smoot) Midtown - 399 Spaces (civic ccmcr to 6onoloTrcnch to amalwvy) IIIII Willard - 355 Spaces (Civic crnt" to wa h,ngmrvD¢mdwvy to rlov. ) e Fiesta Meter Park - 59 Spaces © Fifth & Main Garage (Meters Only) - 22 Spaces © Old Courthouse (County Lot) - 22 Spaces PARKING GARAGES © Fifth & Main - 344 Spaces e Third & Broadway - 440 Spaces © Fifth & French - 685 Spaces A Third & Birch - 400 Spaces LJ U,1 �. .. LOCATIONS -• _ _,.....—;.—...,.....,-..« «.... 21 19D -23 EXHIBIT B 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; 1. The City of Santa Ana, 20 Civic Center Plaza M -25, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are names as additional insured(s) ( "additional insured(s)" 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 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 additional insured(s). 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 of 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(s), 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 9.2701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Issued to this endorsement form as part of Name Insured Countersigned by: 22 19D -24 Authorized Representative EXHIBIT C CITY OF SANTA ANA COMMUNITY DEVELOPMENT AGENCY REQUEST FOR PROPOSALS FOR THE MODERNIZATION OF DOWNTOWN PARKING METERS 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: Contract Individual: Address: Phone Number: Facsimile Number: Contract Amount: Year: Description of supplies, equipment, or services provided: Reference No. 3 Customer Name: Contract Individual: 23 19D -25 Address: Contract Amount: Phone Number: Facsimile Number: Year: Description of supplies, equipment, or services provided: 24 19D -26 ATTACHMENT D PROPOSAL REQUIREMENTS CHECKLIST (For Offeror's Use Only) Cover page (excluded from the 10 double -sided or 20 single -sided page limit) Signed Letter of Transmittal (Limited to 1 single -sided page, excluded from the 10 double -sided or 20 single -sided page limit) Table of Contents (excluded from the 10 double -sided or 20 single -sided page limit) Proposal (10 double -sided pages or 20 single -sided pages), including: • Technical specifications • City incurred costs — including price worksheet • Approaches to purchase, leasing, or financing agreements • Approach and schedule for implementing the desired meter technology, including, but not limited to: Implementation schedule, Installation steps, Operations and Maintenance Plan, Software and Management Components, Warranty options and Information, Training Plan, Credit card processing, Marketing and Education and Modularity • Methodology for establishing wireless communications • Approaches to innovation and uniqueness Pricing Proposal Worksheets (excluded from the 10 double -sided pages or 20 single -sided page limitation) Sample Management Reports (included as an appendix, excluded from the 10 double -sided pages or 20 single -sided page limitation) Product Brochures (Optional - included as an appendix, excluded from previous page limitations) Exhibit's A -1, B, C, E, F and G Submitted Material: One original + eight copies = total of nice (9) If any of the required items are missing or exceed the page limitations specified, the Proposal will be deemed non - responsive. 25 19D -27 TO BE INCLUDED IN PROPOSAL EXHIBIT E CITY OF SANTA AND COMMUNITY DEVELOPMENT AGENCY REQUEST FOR PROPOSALS FOR THE MODERNIZATION OF DOWNTOWN PARKING METERS 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 for this document, and its execution, and when it or an exact copy of it and be 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 drafts, 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 damagers due to the delay and other causes suffered by City because of failure to enter into an Agreement and /or furnish 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 26 19D -28 DATE TO BE INCLUDED IN PROPOSAL EXHIBIT F CITY OF SANTA ANA COMMUNITY DEVELOPMENT AGENCY REQUEST FOR PROPOSALS FOR THE MODERNIZATION OF DOWNTOWN PARKING METERS PROPOSAL AND CONTRACT AGREEMENT CERTIFICATION OF NONDISCRIMINATION BY CONTRACTOR The undersigned Contractor or corporate officer, during the performance of this contract, certifies as follows: 1. 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 limited to, the following: employment, upgrading, demotions, or transfer; 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 tabor union or representative of workers with which he has a collective bargaining agreements or other contract or understanding, a notice to be provided advising the said labor union or workers' representative 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 complies 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 order 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 the Contractor's non - compliance with the non - discrimination 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 Orders 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. 27 19D -29 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 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 Contractor may request that the United States enter such litigation to protect the interests of the United States. 8. 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 28 19D -30 DATE TO BE INCLUDED IN PROPOSAL EXHIBIT G CITY OF SANTA ANA COMMUNITY DEVELOPMENT REQUEST FOR PROPOSALS FOR MODERNIZATION TO DOWNTOWN PARKING METERS 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 State Code Section 112 and Public Contract Code 7106 the PROPOSER declares that this 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 contents thereof, or divulged information or data relative thereof, or paid, and will not pay, any fee to any corporation, partnership, company associations, 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 day of , 20 , by , proved to me on the basis of satisfactory evidence to the person(s) who appeared before me. Notary Public Signature Notary Public Seal 29 19D -31 19D -32 L61611111111 MMIAT"I CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: CONTRACT AWARD TO GALLS, LLC FOR TACTICAL BODY ARMOR VESTS (SPEC. NO. 14 -008) CITY MANAGER • 1 ki I i • CLERK OF COUNCIL USE ONLY: :--:• ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For IK07\191I ill d91111 FILE NUMBER Award a contract to Galls, LLC for the purchase of tactical body armor vests in the amount of $100,600, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION Police Officers assigned to the Special Weapons and Tactics Team (SWAT), Gang Suppression Unit and K -9 officers are tasked with the responsibility of handling incidents involving armed, barricaded suspects, hostage situations and high risk warrant services. These types of operations require an additional level of ballistic protection over and above what is issued to patrol officers. In order to adequately protect them, a specialized tactical body armor vest with additional ballistic coverage which incorporates neck protection, upper arm protection, groin protection and throat protection is required. The manufacture's recommended replacement schedule is every five years. The award of the contract will replace 49 vests purchased in 2008. The notice inviting bids was advertised on February 6, 2014 on the City's online bid management and publication system. A summary of the bid invitations and bids received is as follows: 252 Vendors were notified 4 Vendors downloaded the bid packet 0 Received from Santa Ana vendors 1 Bid received The bid was received and opened on February 18, 2014 and evaluated. The bid received from Galls, LLC is responsive to the specifications and meets the City's requirements. 22A -1 Contract Award for Tactical Body Armor Vests March 18, 2014 Page 2 FISCAL IMPACT Funds are available in the Criminal Activities Department of Justice account (no. 02614450- 63001) in the amount of $82,100, Crimes Against Persons account (no. 0111440 - 63001) in the amount of $12,315 and Police Field Operations account (no. 01114420 - 63001) in the amount of $6,185. APPROVED AS TO FUNDS AND ACCOUNTS: Carlos Rojas Francisco Gutierrez Acting Chief of Police Executive Director Police Department Finance & Management Services Agency Ir EG 22A -2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: CONTRACT AMENDMENT WITH CIVIC CENTER LOCK & SAFE FOR LOCKS, KEYS AND LOCKSMITH SERVICES (SPEC. NO. 14 -011) CITY MANAGER S CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on1"Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Amend the contract with Civic Center Lock & Safe to increase the aggregate limit by $15,000 for locks, keys and locksmith services in an annual amount not to exceed $40,000, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION As part of the City's efforts to enhance safety, a number of security measures have been implemented this fiscal year including the installation of access keypads in City Hall doors. Civic Center Lock & Safe, a Santa Ana vendor, is the City's selected locksmith and has developed a master key system for various City facilities including City Hall. This system offers the most dependable, efficient and cost - effective key replacement and locksmith services to the City. The vendor continues to provide excellent service and competitive prices. As additional security measures are implemented, the City will look to further utilize Civic Center Lock and Safe. As such, staff recommends approval to increase the blanket order contract aggregate limit to ensure uninterrupted service through the end of the fiscal year. FISCAL IMPACT Funds are available in the various departmental Miscellaneous Operating Expenses account (no. 63001). APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance and Management Services Agency sp 2213-1 22B -2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: CONTRACT AMENDMENT WITH GALE SUPPLY COMPANY FOR PAPER GOODS (SPEC. NO. 14 -015) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Amend the contract with Gale Supply Company to increase the aggregate limit by $3,100 for paper goods in an annual amount not to exceed $28,100, subject to non - substantive changes approved by the City Manager and City Attorney. As part of the Finance and Management Services Agency efforts to reduce costs and provide efficient and effective services, the Finance Central Stores Division entered into an agreement with Shamrock Supply to establish and manage an inventory supplies consignment program. In preparation for the consignment program, Police Department Jail staff ordered higher than normal quantities of paper goods from Gale Supply Company to ensure the products would be available during the transition period. As part of the payment reconciliation process to transition into the consignment program, staff identified that an additional $3,100 payment to Gale Supply Company is necessary to process the final invoice and close out the contract. As such, staff recommends approval to increase the aggregate limit of the blanket order contract to issue the final payment. FISCAL IMPACT Funds are available in the Police Department Jail Operations account (no. 01114475 - 63001). G Carlos Rojas Acting Chief of Police Police Department sp APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance and Management Services Agency k 22C -1 22C -2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: March 18, 2014 TITLE: AGREEMENT AMENDMENT FOR BELL BUILDING MAINTENANCE COMPANY FOR CUSTODIAL SERVICES AT SANTA ANA PARK RESTROOMS IN DISTRICTS THREE AND FOUR CITY MANAGflR RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 18` Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement amendment, with Bell Building Maintenance Company to increase the agreement amount by $12,000 for a total amount not to exceed $88,389 and extend the agreement to May 31, 2014, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION In May, 2012 the, City entered into an agreement with Bell Building Maintenance for custodial services of Santa- Ana park restrooms in districts three and four of the city. The agreement included a 10% contingency for unforeseen circumstances. The City has expended the contingency funds and is requesting an agreement amount increase to service two additional restrooms that came into existence during the term of the agreement, continue services through the extended term and to replace restroom fixtures damaged by vandalism. Additionally, the agreement's term concludes on May 21, 2014. An agreement extension to May 31, 2014 is being requested to have the agreement end -date coincide with the month -end. The City has issued a request for proposals for a new term, which is expected to be awarded on May 20, 2014 and commence on June 1, 2014. FISCAL IMPACT Funds are available in the Park Services M &R Buildings and Grounds account (no. 01113250 62320). Gerardo Mouet, Executive Director Parks, Recreation and Community Services Agency APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez, Executive Director Finance and Management Services Agency /i Exhibit 1: Agreement Amendment 25A-1 25A -2 THIRD AMENDMENT TO AGREEMENT THIS THIRD AMENDMENT TO AGREEMENT is entered into this 21" day of May, 2014, between Bell Building Maintenance Company, a California corporation (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: A. The parties entered into Agreement A -2008 -093 dated May 23, 2008, hereinafter referred to as "said Agreement" by which Contractor provides park rest room maintenance services for Santa Ana park districts 3 and 4. B. By Amendments dated May 22, 2010 and May 21, 2012 the City exercised its option to extend the term of the Agreement for additional two -year periods. The current extension expires May 22, 2014. C. During the term of the agreement two (2) additional park rest rooms came into existence for which the Contractor has been providing maintenance services. This additional work and restroom fixture replacement caused by vandalism has subsequently caused the expiration of the allotted funds prior to the end of the Agreement and requiring the need for an additional $12,000. Additionally, the parties desire to extend the term of the Agreement through the end of the final month of the Agreement. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this Third Amendment to Agreement, the parties agree as follows: 1. Section 3, COMPENSATION, shall be amended by $12,000 to reflect the City's costs related to the need for servicing of the extra restrooms and fixture replacement, to an annual amount not to exceed $88,389. 2. Section 4, TERM, shall be amended to reflect the parties' desire to extend the Agreement through the end of its final month, i.e., through May 31, 2014. 3. Except as herein amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council 25A -3 CITY OF SANTA. ANA David Cavazos City Manager APPROVED AS TO FORM: SOMA CARVALHO City Attorney n Assistant City Attorney 25A -4 BELL BUILDING MAINTENANCE COMPANY REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: AGREEMENT WITH THE POLICE OFFICERS ASSOCIATION 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 CITY MANAGOR Approve a consolidated Memorandum of Understanding with the Police Officers Association regarding wages and other terms and conditions of employment subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The City and the Police Officers Association (POA) completed contract negotiations in October 2013 resulting in a side letter agreement to the Memorandum of Understanding (MOU). The MOU covers the period July 1, 2013 through June 30, 2015. This is to approve a comprehensive agreement that incorporates all the deal points that were already approved by Council via a side - letter agreement on October 21, 2013. The consolidated MOU has been approved and reviewed by the POA and City Attorney's office. FISCAL IMPACT There is no fiscal impact associated with this action. N,WQ&a__ EdWa`YJ S. Raya Executive Director Personnel Services Agency 2513-1 25B -2 JULY 1, 2013 - JUNE 30, 2015 MEMORANDUM OF UNDERSTANDING CITY OF SANTA ANA AND SANTA ANA POLICE OFFICERS ASSOCIATION 1 25B -3 MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF SANTA ANA AND THE SANTA ANA POLICE OFFICERS ASSOCIATION FOR FISCAL YEARS 2013 -14 THROUGH 2014 -15 TABLE OF CONTENTS ARTICLE I RECOGNITION 3 ARTICLE II NON - DISCRIMINATION CLAUSE 4 ARTICLE III ATTENDANCE, WORK PERIOD, WORK SCHEDULE & WORKDAY 5 ARTICLE IV SALARIES 9 ARTICLE V ASSIGNMENT AND OTHER SPECIAL PAY ADDITIVES 13 ARTICLE VI CAREER DEVELOPMENT PROGRAM 19 ARTICLE VII TRAINING AND EDUCATIONAL ASSISTANCE PROGRAM 24 ARTICLE VIII OVERTIME 27 ARTICLE IX HOLIDAYS 35 ARTICLE X VACATION 38 ARTICLE XI OTHER LEAVES OF ABSENCE 43 ARTICLE XII EMPLOYEE INSURANCE 50 ARTICLE XIII RETIREMENT 51 ARTICLE XIV RELEASE TIME FOR ASSOCIATION REPRESENTATIVE 55 ARTICLE XV SAFETY 57 ARTICLE XVI RESIDENCY 59 ARTICLE XVII DISCIPLINE 60 ARTICLE XVIII GRIEVANCE REVIEW PROCEDURE 61 ARTICLE XIX DUES DEDUCTION AND INDEMNIFICATION 63 ARTICLE XX CITY RIGHTS 65 ARTICLE XXI STRIKES AND WORK STOPPAGES 67 ARTICLE XXII LAYOFFS 68 ARTICLE XXIII SOLE AND ENTIRE AGREEMENT 69 ARTICLE XXIV WAIVER OF BARGAINING DURING THE TERM OF THIS AGREEMENT 70 ARTICLE XXV SEPARABILITY PROVISION 71 ARTICLE XXVI TERM OF AGREEMENT 72 ARTICLE XXVII RATIFICATION AND EXECUTION 73 EXHIBIT A BASIC SALARY AND WAGE SCHEDULE 75 EXHIBIT B ASSIGNMENT OF CLASSES TO SALARY RATE RANGES 77 v 25B -4 ARTICLE I 1.0 RECOGNITION 1.1 Pursuant to the provision of the Meyers - Milias -Brown Act, Government Code Section 3500, et seq., the City of Santa Ana (hereinafter called the "City ") has recognized the Santa Ana Police Officers Association (herein called the "Association ") as the recognized representative of the bargaining unit which includes police department employees in the sworn, "safety- member" classifications and assignments of Police Officer, Senior Police Officer, Police Sergeant, Senior Police Sergeant and in the non - sworn, "miscellaneous- member" classifications and assignments of Animal Service Officer I and 11, Background Investigator, Communications Services Officer, Crime Research Analyst, DARE Officer, Darkroom Technician, Correctional Officer, Firearms Examiner, Forensic Specialist I and II, Forensic Services Supervisor, Parking Control Officer, Police Communications Supervisor, Police Community Services Specialist, Police Evidence and Supply Specialist, Police Investigative Specialist, Police Property and Evidence Specialist, Police Property and Evidence Supervisor, Police Recruit, Police Service Assistant, Police Service Officer, Police Services Dispatcher, Range master, Correctional Supervisor, Senior Parking Control Officer, and Traffic Services Specialist and excludes all other employees of the Police Department. 3 25B -5 ARTICLE II 2.0 NON - DISCRIMINATION CLAUSE 2.1 The City and Association agree that they shall not discriminate against any employee in violation of State or Federal law. The City and the Association shall reopen any provision of this Agreement for the purpose of complying with any order of a Federal or State agency or court of competent jurisdiction requiring a modification or change in any provisions of this Agreement in compliance with State or Federal anti - discrimination laws. 2.2 Whenever reference is made to the masculine gender it shall be understood to include the feminine gender, unless expressly stated otherwise. 0 r ARTICLE III 3.0 ATTENDANCE, WORK PERIOD, WORK SCHEDULE & WORKDAY 3.1 Attendance. Employees covered by this Agreement shall be in attendance at their work location during hours prescribed by the Police Chief or his designee(s) and shall not absent themselves during prescribed hours without approval of the Police Chief or his designee(s). 3.2 Definitions, A. Standard Work Period. The Standard Work Period shall consist of a consecutive seven (7) day, 168 hour period. B. Alternative Work Period-207Q_ Exempt Emplo ees. The Alternative Work Period shall apply to all members of the Association who are peace officers, correctional officers or correctional supervisors who are exempt from the overtime provisions of the Fair Labor Standards Act (FLSA) pursuant to Section 207(k), The 207(k) employees' Work Period shall consist of a consecutive 28 day, 672 hour time period. In conformance with the FLSA, members who are peace officers, correctional officers, or correctional supervisors shall not be eligible for FLSA overtime, as defined under the FLSA for employees assigned to the Alternate Work Period until they have worked in excess of 171 hours in the Alternate Work Period. Nothing in this section shall prevent a peace officer, correctional officer or correctional supervisor from earning overtime and being compensated for overtime based on the overtime provisions of ibis Agreement as stated in Article VIII of this Agreement. All overtime shall be paid at one and one -half (1 1/2) times the regular rate of pay. C. Work Hours. Work hours are the regularly scheduled hours of work as determined by the Police Chief or his designee. A "day" is defined as any consecutive 24 hour period. D, Work Schedules. At this time, the Police Chief has established the following work schedules. These schedules may be changed by the Police Chief subject to the provisions of the Meyers - Milias -Brown Act. Unless exigent circumstances exist, the Police Chief, or his designee, shall inform the Association prior to the changing of the below designated Work Schedules. I. Standard Work Period Schedules. a. 5/40 Work Schedule. Employees shall work five (5) eight hour workdays per seven (7) consecutive days, 168 hour Standard Work Period. Each workday shall consist of eight (8) hours of work and a 30 minute unpaid meal period. S 25B -7 b. 4/10 Work Schedule. Employees shall work four (4) 10 hour days per seven (7) consecutive days, 168 hour Standard Work Period. Each workday shall consist of 10 hours of work, and either a 30 minute or one (1) hour unpaid meal period. The determination as to a 30 minute or one (1) hour unpaid meal period shall be made by the Police Chief or his designee. C. 9/80 Work Schedule. Employees shall work four (4) nine hour days and one (1) four hour day in each seven (7) consecutive days, 168 hour Standard Work Period. Each nine (9) hour workday shall consist of nine (9) hours of work and either a 30 minute or one (1) hour unpaid meal period. The eight hour workday shall consist of four (4) hours applied to the first seven (7) day period and four (4) hours applied to the second seven (7) day period divided by either a 30 minute or one (1) hour unpaid meal period. The determination as to a 30 minute or one (1) hour unpaid meal period shall be made by the Police Chief or his designee. d, 12/40 Work Schedule. Employees shall work three (3) 12 hour and 30 minute workdays and one (1) four hour workday in each seven (7) consecutive day, 168 hour Standard Work Period. Effective November 1, 2004, each workday shall consist of 11 hours and 30 minutes of work, and a one (1) hour meal period, 30 minutes of which shall be paid and 30 minutes of which shall be unpaid, for a total of 12 hours and 30 minutes. The four (4) hour workday shall consist of four (4) hours of work. Alternate Work Period Schedules- 207(k) Exempt Employees a. 207(k) 3/12.5 Work Schedule — Patrol /Canine. Employees shall work thirteen 12 hour and 30 minute workdays in each 28 day FLSA Work Period. Of the 13 workdays, an employee assigned to this schedule shall be required to work one (1) 12 hour and 30 minute "payback" day each 28 day FLSA Work Period, scheduled or assigned pursuant to the Department's work schedule policy. Each workday shall consist of 12 hours of work and a 30 minute paid meal period. During each 28 day FLSA Work Period, employees shall work 162.5 hours. Upon completion of this work schedule, employees will earn an additional two (2) hours and 30 minutes of vacation time, provided they do not take leave without pay during that Work Period. Employees assigned to this schedule are compensated for their meal periods. Consequently, if an employee is unable to take his or her meal period, or is interrupted during his or her meal period, he or she shall not receive further r compensation. b. 207(k) 7/12.5 Work Schedule - Detention. Employees shall work three (3) 12 hour and 30 minute workdays in one (1) seven day period and four (4) 12 hour and 30 minute workdays in the next seven (7) day period, or alternatively, four (4) 12 hour and 30 minute workdays in the first seven (7) day period and three (3) 12 hour and 30 minute workdays in the following seven (7) day period. This cycle shall be repeated twice each 28 day FLSA Work Period. Effective November 1, 2004, each workday shall consist of 11 hours and 30 minutes of work and a one (1) hour meal period, 30 minutes of which shall be paid and 30 minutes of which shall be unpaid, for a total of 12 hours and 30 minutes. During each 28 day FLSA Work Period, employees assigned to the 207(k) 7/12.5 Work Schedule shall earn one (1) hour of vacation time if they do not take leave without pay during that Work Period. Correctional Officers will be compensated at the time and a half overtime rate for all time worked in excess of their regular work shift of 12.5 hours per workday. The overtime compensation will apply only to actual time worked beyond the regular shift and calculated in increments of six (6) minutes. C, 207(1) 4/10.5 Work Schedule- Detention Administration. Employees shall work seven (7) ten hour and 30 minute workdays and one (1) ten hour workday during each two (2) week period. This pattern will recur twice during the 28 day FLSA Work Period. Each 10 hour and 30 minute workday shall consist of 10 hours and 30 minutes of work and either a 30 minute or one (1) hour unpaid meal period. The 10 hour workday shall consist of 10 hours of work and either a 30 minute or one (1) hour unpaid meal period. The determination as to a thirty (30) minute or one (1) hour unpaid meal period shall be made by the Police Chief or his designee. d. 207(k) 4/10 Work Schedule. Employees shall work 16 ten hour workdays in each 28 day FLSA Work Period. Each workday shall consist of 10 hours of work and either a 30 minute or one (1) hour unpaid meal period. The determination as to a 30 minute or one (1) hour unpaid meal period shall be made by the Police Chief or his designee. e. 207 (k) 9/80 Work Schedule. Employees shall work five (5) nine hour workdays in one (1) seven (7) day span and three (3) nine hour workdays and one (1) eight hour workday in the second seven (7) day span, or alternatively three (3) nine hour workdays and one (1) eight hour workday in the first seven (7) day span and five (5) 25B -9 nine hour workdays in the second span. This cycle shall be repeated twice each 28 day FLSA Work Period. Each nine (9) hour workday shall consist of nine (9) hours of work and either a 30 minute or one (1) hour unpaid meal period. The eight (8) hour workday shall consist of eight (8) hours of work and either a 30 minute or one (1) hour unpaid meal period. The determination as to a 30 minute or one (1) hour unpaid meal period shall be made by the Police Chief or his designee. £ 207(k1 9/81 Work Schedule. Employees shall work 81 hours in a consecutive 14 day, 336 hour period. This cycle shall be repeated twice each 28 day FLSA Work Period. Employees shall work five (5) nine hour workdays in one (t) seven (7) day span and four (4) nine hour workdays in the second seven (7) day span. Each nine hour workday shall consist of nine (9) hours of work and either a 30 minute or one (1) hour unpaid meal period. While assigned to the 9/81 schedule, an officer shall earn two (2) hours of overtime during each 28 day FLSA Work Period, unless he or she takes leave without pay during the 28 day, 672 hour period. 3.3 Part Time Employment. During the term of this Agreement, no presently existing full - time positions will be eliminated as the result of the use of part -time employee(s) and, to the extent possible, when the workload of any one or more part-time employee(s) would justify the addition of a full -time position or positions, the parties will meet and confer regarding the addition of a full -time position or positions, subject to City Council approval. 3.4 Code Seven. Except for those employees assigned to Patrol, other employees whose meal periods are interrupted by the performance of job related duties, will receive another full, uninterrupted lunch period or will be compensated for their lunch period at their overtime rate of pay at time and one -half their regular rate of pay. For purposes of this section, "interrupted" shall mean a significant interruption of more than a few minutes (deminimus). For employees who receive a one -hour lunch period (half of which is paid) overtime compensation shall apply only to the unpaid half -hour. Unless exigent circumstances exist beyond the Department's control, employees assigned to Patrol shall be provided a 30 minute paid meal period. Should an employee's meal period be interrupted, every effort shall be made to allow the affected employee to resume his /her meal period for the remaining unused time, not to exceed the 30 minute total meal period. 3.5 DETECTIVE REDEPLOYMENT All employees assigned as detectives (investigators) shall work one (1) day per month in the patrol function of the Field Operations Bureau pursuant to a schedule as determined by the Chief of Police or his designee. 25B -10 Once each calendar year the Chief of Police shall conduct a review of the organization of the Police Department to determine whether positions and assignments currently in the Investigations Bureau represent a deployment of resources that best enables the department to provide police services to the city. The Chief of Police may, as a result of this review, remove positions and assignments from the Investigations Bureau and assign them, and the individuals who occupy them, to other bureaus or eliminate them and assign the individuals who occupy them to other positions and assignments in the department. The annual review and any re- assignment made as a result of the review shall be completed, including the appeal thereof outlined below, sufficiently in advance of the annual patrol deployment sign -up to enable those who will be assigned to Patrol to make use of their seniority when choosing patrol shifts and days off. Any employee who is informed that he or she will be removed from the Investigations Bureau and lose the Investigations assignment pay differential may appeal to the Chief of Police. Said appeal constitutes the sole administrative appeal of the Chief s decision, shall be conducted in an informal manner and the decision of the Chief shall be final. 25B -11 ARTICLE IV 4.0 SALARIES 4.1 Basic Compensation Plan. There is hereby established a basic compensation plan for all members of the Santa Ana Police Officers Association who are now employed or will in the future be employed in any of the designated classifications of employment listed in this Agreement and its attachments. 4.2 Salary Schedule. The basic salary schedule, attached hereto in a matrix format as Exhibit A, and made a part hereof as though set forth in full herein, provides numerous salary rate ranges, each comprised of five (5) steps or rates of pay, The respective rate ranges are identified by a three (3) digit number. The steps within each range are identified by the letters "A" through "E" inclusive, with the "A" step being the lowest step in the range. The purpose of each step and the length of service required for advancement to the next higher step within a particular salary rate range are set forth in Section 4.7 below. The assignment of classes to salary rate ranges is listed in Exhibit B, which is attached and made apart hereof as though set forth herein. 4.3 Salary Adjustments. A. The base salaries of Sworn employees covered by this Agreement shall be adjusted as follows: Effective July 1, 2013, the base salary of Sworn employees covered by this MOU shall be increased by one percent (1 %). B. Effective July 1, 2013, all employees will contribute one percent (1 %) of their base salary plus pay additives through payroll deduction to a fund maintained by the Santa Ana Police Officers Association for the purpose of providing retiree health insurance premium reduction assistance. This payroll deduction for retiree health insurance premium reduction assistance will continue until such time as the parties may mutually agree to end said deduction. Additionally, effective October 1, 2013, and each October 15` thereafter, the City shall contribute an amount equal to three - quarters' percent (.75 %) of the bargaining unit's annual base salary, including pay additives (excluding overtime), for the purpose of providing retiree health insurance premium reduction assistance. 10 25B -12 4,4 Application of Basic Compensation Plan. The salary rate ranges and steps contained in Exhibit A are monthly salary rates. All officers and employees working in classifications of employment covered by this Agreement shall be compensated at a monthly rate, except that an employee hired for temporary work in a position which has an anticipated duration of less than six (6) months shall be paid at a rate per hour for actual time spent in the performance of the duties of his or her employment. Any hourly rate of pay, defined as the regular hourly rate of pay, shall be computed by dividing the monthly salary rate plus pay additives by 173.33. In determining the hourly rate as herein provided, computation shall be made to the nearest whole cent and a computation resulting in exactly one -half cent or higher shall fix the rate at the next higher whole cent. 4.5 Beginning Rates. A new employee of the City of Santa Ana shall be paid the rate shown as Step "A" in the salary rate range allocated to the class of employment for which he or she has been hired. In special instances where such new employee possesses unique and exceptional education, training and /or experience qualifications, the department head under whom the employee will serve, may submit a written request and justification to the City Manager for authorization to place such new employee on Step "B" or Step "C" within the allocated salary rate range, provided that such employee shall be assigned such salary step upon the commencement of his or her service in the classification of employment to which the salary rate range applies and such assignment having once been made shall remain in effect until the said employee shall be entitled to advance to the next salary step in accordance with the further provisions of this Article. 4.6 Service. The word "service" as used in this Agreement shall be deemed to mean continuous, full -time service in the classification in which the officer or employee is being considered for salary advancement, service in the higher classification or service in a classification allocated to the same salary rate range and having generally similar duties and requirements. Employees hired after the first (I st) working day of the month shall not be credited with "time -in- service" for that month when determining the length of service required for salary step advancement. A lapse of service by an officer or employee for a period of time longer than thirty (30) calendar days by reason of resignation, quit, or discharge, shall serve to eliminate the accumulated length of service time of such officer or employee for the purpose of this Agreement and any such officer or employee reentering the service of the City shall be considered as a new officer or employee, except that he or she may be reappointed within one (t) year and may be placed in the same salary step in the appropriate salary range as he or she was at the time of termination of employment. 4.7 Advancement Within Ranges. The following regulations shall govern salary advancement within rate ranges: A. Length of Service Advancements. After the salary of an officer or employee has been first established and fixed under this plan, such officer or employee shall be advanced from Step "A" to Step "B" or from Step "B" to Step "C" or from Step "C" to Step "D," whichever is the next higher step to that on which the officer or 11 25B -13 employee has been previously paid, effective the first day of the month following the date of completion of the length of service for such advancement as provided in Exhibit B of this Agreement. B. Merit Advance. An officer or employee shall be considered for advancement from Step "D" to Step "E" upon the completion of the required length of service as provided in Section 4.2 and Exhibit A of this Agreement. The effective date of such merit increase, if granted, shall be on the first day of the month following the completion of such required length of service. Advancement to Step "E" may be granted only for continued meritorious and efficient service and continued improvement by the officer or employee in the effective performance of the duties of his or her position. Such merit advancement shall require the following: There shall be on file in the office of the chief personnel officer a copy of each periodic efficiency or performance report required to be made on the officer or employee by the Santa Ana Municipal Code and/or the City Manager during the period of service time of such officer or employee subsequent to this last salary advancement. 2. The Police Chief, at least twenty (20) calendar days prior to the anticipated completion of such officer's or employee's required length of service, shall file with the City Manager a statement recommending the granting or denial for the merit increase and supporting such recommendations with specific reasons therefore. 3. No advancement in salary above Step "D" shall become effective until approved by the City Manager, except when placement on a salary step above Step "D" results from promotion under the provisions of Section 4.9 of this Article. C. Length of Service Required When Advancement Denied, When an officer or employee has not been approved for advancement to the merit step E, he or she may be reconsidered for such advancement after the completion of three (3) months of additional service and shall be reconsidered for such advancement after the completion of six (6) months of additional service. This reconsideration shall follow the same steps and shall be subject to the same actions as provided in Subparagraphs B (2) and B (3) of this Section. 4.8 Reduction in Salary Steps. Any officer or employee who is being paid on merit step E may be reduced to Step "D" of the appropriate salary range, upon the recommendation of the Police Chief, and the approval of the City Manager. Procedure for such reduction shall follow the same procedure as outlined for merit advancements in Section 4.7 above, and such officer or employee may be considered for re- advancement under the same provisions as contained in Subsection C of Section 4.7. 12 25B -14 4.9 Promotional Salary Advancement. When an officer or employee is promoted to a position in a higher classification from a position in a lower classification in the same occupational career ladder, he or she shall be reassigned to Step "A" in the appropriate salary rate range for the higher classification; provided however, that if the base salary step currently being paid such officer or employee is already equal to or higher than said Step "A," he or she will be placed in the lowest step in the appropriate salary rate range as will grant that officer or employee an increase of at least one (1) salary step over his or her current base salary step including any additive or additives such as career development or educational incentive pay, but excluding shift differential, assignment pay and bilingual pay. 4.10 Demotion. When an officer or employee is demoted to a position in a lower classification, his or her salary rate shall be fixed in the appropriate salary rate range for the lower classification in accordance with the following provisions: A. The salary rate shall be reduced by at least one (1) step. B. The new salary rate must be within the appropriate salary rate range. C. The new salary rate shall not be higher than the salary step to which the officer or employee would have been entitled had his or her service time in the higher classification been spent in the lower classification. D; If the salary rate recommended by the Police Chief is lower than the maximum step permissible under Subsection C above, such recommendation shall be considered a reduction in pay in addition to the demotion and shall be handled in accordance with the provisions for salary reductions (Section 4.8, above). 4.11 Reallocation of Salary Rate Ranges. Any officer or employee who is employed in a classification which is reallocated to a different salary rate range from that previously assigned shall be retained in the same salary step in the new salary rate range as he or she had previously held in the prior rate range and shall retain credit for length of service in such step towards advancement to the next higher step. 4.12 Deferred Compensation. If, during the term of this Agreement, the City agrees to match employee Deferred Compensation contributions for members of any other bargaining unit, then employees covered by this Agreement shall receive the same benefit. 4.13 Joint Labor Management Study — Salary Schedule. The parties agree that at any time during the term of this MOU either the City or the Association may ask the other party to meet and negotiate over the implementation of a new salary schedule. 13 25B -15 ARTICLE V 5.0 ASSIGNMENT AND OTHER SPECIAL PAY ADDITIVES 5.1 Assignment PU Differentials. Effective the first day of the first full month following Council approval of this Agreement, assignment pay differentials, as listed herein and throughout the contract, will, in each case, be added individually and separately to the employee's base salary. In no event shall one assignment pay differential be added to the employee's base salary as a basis for the calculation of an additional pay differential. A. An incumbent in the class of Police Services Dispatcher who is continuously and regularly assigned to and actually performing in a lead supervisory and trainer capacity over an assigned shift of Police Services Dispatchers will be paid at a rate set ten (10) salary rate ranges (approximately 5.0 %) above his or her then current base monthly salary step. B. Personnel in the class of Forensic Specialist I, who are regularly and continuously assigned to and actually performing duties in a "lead" supervisory capacity over a primary functional unit of Forensic Specialist I employees, will be paid at a rate set ten (10) salary rate ranges (approximately 5.0 %) above their then current base monthly salary step. C. An incumbent in the class of Police Officer who is continuously and regularly assigned to and actually performing duties of a Corporal will be paid at a rate set five (5) salary rate ranges (approximately 2.5 %) above his or her then current base monthly salary step. If a Corporal is assigned to lead a work unit without a Sergeant, he or she will be paid an additional five (5) salary rate ranges (approximately 2.5 %) above his or her base monthly salary step for such assignment. At the present time, Directed Patrols and Civic Center Patrol units are examples of such assignments. D, An incumbent in the class of Correctional Officer who is continuously and regularly assigned to and actually performing duties of a Senior Correctional Officer will be paid at a rate set five (5) salary rate ranges approximately 2.5 %) above his or her then current base monthly salary step. E. The Police Chief at his discretion and based on the department's need may assign sworn officers to standby status for non -work days or other days as deterniined by the Police Chief. Officers thus assigned will be compensated at the rate of two (2) hours of straight time per day of standby duty. Officers assigned to standby status on non -work days will not lose their standby pay when called to duty, if they have been on call for at least six (6) hours when called. If officers on standby status are 14 25B -16 called to duty after having been on call for less than six (6) hours, they will be paid for their response to work, but not for their standby status. F. An employee who is continuously and regularly assigned as a Training Officer working in Field Operations, the Detention facility, or as a Forensic Specialist II will be paid at a rate set five (5) salary rate ranges (approximately 2.5 %) above his or her then current base monthly salary step. G. An employee who is continuously and regularly assigned to and actually performing duties of an Internal Affairs Officer will be paid at a rate set five (5) salary rate ranges (approximately 2.5 %) above his or her then current base monthly salary step. II. An employee who is continuously and regularly assigned to perform training functions as a Parking Control Officer will be paid at a rate set five (5) salary rate ranges (approximately 2.5 %) above his or her then current base monthly salary step. I. An incumbent in the class of Police Officer who is continuously and regularly assigned as a Canine Officer will be paid at a rate set ten (10) salary rate ranges (approximately 5 %) above his or her then current base monthly salary step. This pay shall be considered compensation for the care and feeding of the dog and will be in lieu of the thirty (30) minutes of time each day currently provided for such purpose. J. An incumbent in the class of Police Officer who is continuously and regularly assigned to and actually performing duties of a Motor Officer assigned to the Traffic Division will be paid at a rate set five (5) salary rate ranges (approximately 2.5 %) above his or her then current base monthly salary step. K. An incumbent, identified by the Police Department, who is continuously and regularly assigned to and actually performing duties of a Detective /Investigator assigned to the Investigations Division or Special Investigations Units as well as Police Investigative Specialist, Background Investigator, Collision Investigator, and Graffiti Task Force Investigator, will be paid at a rate set five (5) salary rate ranges (approximately 2.5 %) above his or her then current base monthly salary step. L. Employees in the class of Correctional Officer or Correctional Supervisor, who is continuously and regularly assigned to either the 207(k) 7/12.5 Detention Work Schedule, or the 4/10.5 Detention Administration Work Schedule, shall be paid at a rate set six (6) salary rate ranges (approximately 3 %) above his or her then current base monthly salary step. This assignment pay is compensation for the additional 30 minutes work or briefing time each day. 1s 25B -17 M. Personnel in the class of Firearms Examiner who are regularly and continuously assigned to and actually performing duties in a "lead" supervisory capacity over a primary functional unit, will be paid at a rate set ten (10) salary rate ranges (approximately 5.0 %) above their then current base monthly salary step. N. Notwithstanding the specific provisions of Article V, Section 5. 1, A — M, supra, an incumbent who is regularly and continuously assigned to lead a functional unit which includes positions in the same or lower classifications as the incumbent, may be compensated for said duties upon mutual agreement of the City and POA and approval of the Police Chief and the Executive Director of Personnel Services. This compensation shall be referred to as "lead pay." 0. An incumbent in the class of Forensic Specialist I or Forensic Specialist II who is continuously and regularly assigned as a Tenprint — AFIS Technician will be paid at a rate set five (5) salary rate ranges (approximately 2.5 %) above his or her then current base monthly salary step. P. An incumbent in the class of Forensic Specialist I or Forensic Specialist It who is continuously and regularly assigned as a Fingerprint Analyst will be paid at a rate set five (5) salary rate ranges (approximately 2.5 %) above his or her then current base monthly salary step. In no event shall an incumbent receive more than ten (10) salary rate ranges (approximately 5 %) more than his or her then current base monthly salary step for performing the duties of both the Tenprint — AFIS Technician and Fingerprint Analyst. 5.2 Shift Differential Non -Sworn Personnel. Each employee in the classes of Animal Service Officer I, Animal Service Officer II, Forensic Specialist 1, Crime Research Analyst, Forensic Specialist II, Police Communications Supervisor, Police Investigative Specialist, Police Property & Evidence Specialist, Police Service Officer, Police Evidence and Supply Specialist, Police Services Dispatcher, Communications Services Officer, Correctional Officer, Correctional Supervisor and Parking Control Officer who is continuously and regularly assigned to a schedule of work which requires that he or she actually work a minimum of four and one -half (4 1/2) hours between the hours of 5:00 P.M. and 7:00 A.M. will be paid a shift differential at a rate set ten (10) salary rate ranges (approximately 5.0 %) above his or her then current base monthly salary step. 5.3 Bilingual PaY. Qualified employees who meet the following criteria shall be paid a monthly pay differential, above his or her base monthly salary step, as follows: A. Assignment by the Police Chief or his designee to a position requiring bilingual capability in both English and one of the following languages: Spanish, Samoan, Vietnamese, Cambodian, Korean, Hmong or other language designated by the City Manager; and 16 25B -18 B. Certification by the chief personnel officer as having satisfactorily demonstrated the required level of fluency in both languages. C. Sworn; Street Level Proficiency in Spanish: A Police Officer or Sergeant who successfully demonstrates the required level of bilingual fluency as determined by the chief personnel officer shall be paid a bilingual pay differential in an amount equal to the product obtained by multiplying the Step "E" base salary rate of Police Officer by five (5) salary rate ranges (approximately 2.5 %), Employees receiving "Street Level Proficiency" incentive pay may be required, as a condition of continued eligibility to receive such incentive pay, to successfully complete an eight (8) hour refresher course once every twelve months from the date of initial certification. D. Sworn: Complex Level Proflcfency is Dasinaled Languages. A Police Officer or Police Sergeant who successfully demonstrates the required level of bilingual . fluency as determined by the chief personnel officer shall be paid a bilingual pay differential in an amoLmt equal to the product obtained by multiplying the Step "E" base salary rate of Police Officer by ten (10) salary rate ranges (approximately 5 %). E. Non Sworn Secondary Level Proficiene in Designated Languages. A non- sworn employee who successfully demonstrates the required level of bilingual fluency as determined by the chief personnel officer shall be paid a monthly differential of forty dollars ($40) above his or her then current base monthly salary step. F. Non - sworn: Primary Level Proficienev in Designated_ Languages. A non -sworn employee who successfully demonstrates the required level of bilingual fluency as determined by the chief personnel officer shall be paid a monthly differential of one hundred seventy -five dollars ($175) above his or her then current base monthly salary step. 5.4 All assignments to positions set forth in Sections 5.1, 5.2, 5.3 above of sworn and non- sworn personnel shall be made or revoked in a fair manner at the discretion of the Police Chief. 5.5 Temporary Upgrade Assignment Pay. The parties acknowledge that from time to time it may be necessary for the department to fill a temporarily vacant, full -time budgeted, higher -level position due to the temporary absence of the incumbent. The parties agree that such a position may be filled by an eligible unit member for an initial period of up to six (6) months, and at the discretion of the Chief of Police, for an additional six (6) months; and that the employee assigned to fill such a position shall receive Temporary Upgrade Assignment Pay as set forth below: 17 25B -19 A. Eligibility. Full -time employees shall be assigned to fill a vacant, full -time budgeted, higher - level position, and shall receive Temporary Upgrade Assignment Pay for filling that position, when the occupier of that position is not performing the duties of that position for a period of two (2) consecutive calendar weeks or more. An employee filling a position under this section who is absent for two (2) days or less during the two (2) consecutive calendar week period will not lose his or her eligibility for Temporary Upgrade Assignment Pay; however, the days of absence shall not be counted in the computation of the two week period. In computing qualifying service or temporary upgrade assignment pay only full days of actual duty shall be included. Partial days shall not be combined to make full days unless they are holiday hours. Holiday time off will be included in computing actual duty days. Employees holding the position immediately subordinate to the vacant, full -time, budgeted, higher -level position to be filled shall be given first consideration to said position consistent with the operational needs of the department. When there is more than one (1) employee holding the position immediately subordinate to the vacant, full -time, budgeted, higher -level position to be filled, the most senior employee holding one of the immediately subordinate positions shall be assigned to said position consistent with the operational needs of the department. Non - permanent employees (probationary, part-time, seasonal, etc.) and employees performing work above their regular class in a training capacity shall not be assigned to a vacant, full -time, budgeted, higher -level position in accordance with this section unless specifically authorized by the City Manager. B. Compensation. After an employee has served two (2) consecutive calendar weeks in a vacant, full -time, budgeted, higher -level position, he shall be compensated at the Temporary Upgrade Assignment Pay rate for each full day that he is assigned to the higher -level position, retroactive to the first (1s) day of said assignment. 2. An employee serving in a Temporary Upgrade Assignment will be paid a temporary assignment pay premium at a rate set ten (10) salary rate ranges (approximately 5 %) above their then current base monthly salary step. 3. An employee assigned to a vacant, full -time budgeted, higher -level position not represented by this bargaining unit will retain all fringe benefits afforded to members of this bargaining unit, if the employee remains eligible for such pay while in the temporary assignment, in 18 25B -20 accordance with this MQU, but will not be eligible for any benefits afforded to members of the bargaining unit for the position to which he or she is temporarily assigned. 4. An employee assigned to a vacant, full -time, budgeted, higher -level position will continue to accrue, and have recorded, general, special, or normal salary step increases in the employee's permanent position; however, such salary increase will be paid only to maintain the minimum ten (10) salary rate range (approximately 5 %) differential required by this section. 19 25B -21 ARTICLE VI 6.0 CAREER DEVELOPMENT PROGRAM 6.1 Definitions. For the purpose of clarifying the criteria for the Police Career Development Program designations set forth in Sections 6.2 through 6.8 of this Article, the following definitions apply. It is the responsibility of the employee regardless of rank or classification, to notify the police department human resources of the completion of any Career Development Pay requirements and to provide the required proof of completion or eligibility. Any Career Development pay additive shall not commence until the department is notified by the employee of obtaining eligibility and all required proof of eligibility is received by the department A. Educational Units. One (1) completed "semester" unit in an academic course of instruction approved by the Police Chief and in an accredited college or university shall equal one (1) educational unit, One (1) "quarter" unit achieved in an educational institution as above shall equal two - thirds (2/3) of an educational unit. "Trimester" units or other standards of measurement used as a basis in awarding scholastic credits will be accorded the same evaluation and weight as provided by the respective accredited college or university. Only completed coursework credited with a letter grade "C" or better or a grade of "Pass" when evaluated by the "Pass /Fail" method will be accepted. If such ratings are not rendered for a specific course, then a certificate of successful completion must be submitted. B. Training Units. 'twenty (20) classroom hours or its equivalent of approved police training shall equal one unit. Regular, periodic, on -the -job training programs shall not be considered as fulfilling this requirement. Neither shall the special training required for Crime Scene Investigators and Advanced Officers or other similar mandatory training (e.g., First Aid, C.P.R. Recertification, etc.) nor the basic introductory training or similar training given an employee during his or her probationary period be given credit for the awarding of training units. 1, When college credit is awarded for special training in police work, such units of credit may be counted for either training units or educational units as the officer may select. 2. Training units may be earned by the assignment to and performance of sworn police officer duties (other than uniformed field patrol work in Field Operations Division) with one (1) full and continuous month of such assignment equal to one (1) training unit. Credit for experience in assignments other than patrol work in Field Operations shall not be given, unless at least three (3) full and continuous months of such assignment have been completed. Not more than six (6) units of training through assignment to non - patrol duties may be earned in any one (1) year and not more than fifteen (15) such training units by assignment shall be used in meeting the criteria for the Police Career Development Program designations as set out in 20 25B -22 this Article. 6.2 Crime Scene Investi ator C.S.L . Any sworn, safety - member Police Officer who attains the following educational and experience requirements and the approval as set out below shall be paid an additional five (5) salary rate ranges (2.5 %) above his or her then current base monthly salary step. The criteria for such designation shall be as follows: A. Completion of two (2) years of experience as a sworn Police Officer, at least one of which shall be in the Santa Ana Police Department. B. Completion (acquisition) of at least thirty (30) educational and /or training units. C. Assignment to and actual performance of the duties and responsibilities of a C.S.I. D. Completion of a special training course for Crime Scene Investigators as developed and administered by the Santa Ana Police Department or such alternative course as designated for such purpose by the Police Chief. E. Approval of the Police Chief. The number of such designations as C.S.I. shall be no larger than the requirements of the department as determined by the Police Chief. 6.3 Senior Police Officer 1. Any sworn, safety- member Police Officer, regardless of duty assignment, who fulfills the requirements established in this section shall be designated as a Senior Police Officer I and shall be paid at a rate set fifteen (15) salary rate ranges (approximately 7.5 %) above his or her then current base monthly salary step. The criteria for such designation shall be as follows: A, Completion of five (5) years of municipal police experience in the Police Officer classification, of which thirty (30) months must be with the Santa Ana Police Department, B, Completion (acquisition) of at least sixty (60) educational and /or training units. C. Approval of the Police Chief. 6.4 Senior Police Officer II. Any sworn, safety - member Police Officer, regardless of duty assignment, who fulfills the requirements established in this section shall be designated as a Senior Police Officer II and shall be paid at a rate set twenty -five (25) salary rate ranges (approximately 12.5 %) above his or her then current base monthly salary step in the Police Officer classification. The criteria for such designation shall be as follows: A. Completion of seven (7) years of municipal police experience in the Police Officer classification, of which thirty (30) months must be with the Santa Ana Police Department. 21 25B -23 B. Completion (acquisition) of at least ninety (90) educational /training units; or possession of an Associate of Arts degree from an accredited college with an additional thirty (30) or more educational /training units. C. Approval of the Police Chief, 6.5 Senior Police Officer III. Any sworn, safety- member Police Officer, regardless of duty assignment, who fulfills the requirements established in this section shall be designated as a Senior Police Officer III and shall be paid at a rate set thirty (30) salary rate ranges (approximately 15 %) above his or her then current base monthly salary step in the Police Officer classification. The criteria for such designation shall be as follows: A. Completion of nine (9) years of municipal police experience in the Police Officer classification, of which thirty (30) months must be with the Santa Ana Police Department. B. Completion (acquisition) of at least one hundred twenty (120) educational /training units; or possession of an Associate of Arts degree from an accredited college with an additional sixty (60) or more educational /training units. C. Approval of the Police Chief. 6.6 Senior Police Sergeant I. Any officer holding the rank of Police Sergeant in the Santa Ana Police Department, regardless of duty assignment, who fulfills the requirements established in this section shall be designated as a Senior Police Sergeant I and shall be paid at a rate set fifteen (15) salary rate ranges (approximately 7.5 %) above his or her then current base monthly salary step. The criteria for such designation shall be as follows: A. Completion of five (5) years of municipal police experience and be eligible for "B" step of the base salary rate range of the Police Sergeant class. "Eligible" as defined only for Section 6.6(A) means that a Police Sergeant shall be considered for advancement from Step "D" or "E" to Senior Police Sergeant I upon the completion of the required length of service as provided in Section 4.2 and Exhibit A of this Agreement; the effective date of such increase shall be on the first day of the month following completion of such required length of service. B. Completion (acquisition) of at least sixty (60) educational and /or training units. C, Approval of the Police Chief. 6.7 Senior Police Sergeant II. Any officer holding the rank of Police Sergeant in the Santa Ana Police Department, regardless of duty assignment, who fulfills the requirements 22 25B -24 established in this section shall be designated as a Senior Police Sergeant I1 and shall be paid at a rate set twenty -five (25) salary rate ranges (approximately 12.5 %) above his or her then current base monthly salary step in the Police Sergeant class. The criteria for such designation shall be as follows: A. Completion of seven (7) years of municipal police experience and be eligible for "E" step of the base salary rate range of the Police Sergeant class. "Eligible" as defined only for Section 6.7(A) means that a Police Sergeant shall be considered for advancement from Step "D" or `E" to Senior Police Sergeant II upon the completion of the required length of service as provided in Section 4.2 and Exhibit A of this Agreement; the effective date of such increase shall be on the first day of the month following completion of such required length of service. B. Completion (acquisition) of at least ninety (90) educational and/or training units; or possession of an Associate of Arts academic degree from an accredited college with an additional thirty (30) or more education or training units. C. Approval of the Police Chief. 6.8 Senior Police Sergeant I11. Any officer holding the rank of Police Sergeant in the Santa Ana Police Department, regardless of duty assignment, who fulfills the requirements established in this section shall be designated as a Senior Police Sergeant III and shall be paid at a rate set thirty (30) salary rate ranges (approximately 15 %) above his or tier then current base monthly salary step in the Police Sergeant class. The criteria for such designation shall be as follows: A. Completion of nine (9) years of municipal police experience and be eligible for "E" step of the base salary rate range of the Police Sergeant class. "Eligible" as defined only for Section 6.8(A) means that a Police Sergeant shall be considered for advancement from Step "D" or "E" to Senior Police Sergeant III upon the completion of the required length of service as provided in Section 4.2 and Exhibit A of this Agreement; the effective date of such increase shall be on the first day of the month following completion of such required length of service. B. Completion (acquisition) of at least one hundred twenty (120) educational /training units; or possession of an Associate of Arts academic degree from an accredited college with an additional sixty (60) or more educational /training units. C. Approval of the Police Chief. 6.9 Career Development Program - Non - Sworn. Effective the first day of the first full month 23 25B -25 following Council approval of this Agreement, an incumbent in one of the classes designated as "non- sworn" covered by this Agreement shall earn an additional amount as follows: A. Upon attainment of an Associate in Arts Degree and five (5) years' experience with the City of Santa Ana, said employee will be paid at a rate set five (5) salary rate ranges (approximately 2.5 %) above his or her then current base monthly salary step. B. Upon attainment of a Bachelor of Arts or Science Degree and with five (5) years' experience with the City of Santa Ana, said employee will be paid at a rate set an additional (5) salary rate ranges (approximately 2.5 %) for a total of 10 salary rate ranges (approximately 5 %) above his or her then current base monthly salary step. If said employee obtains a Bachelor's Degree without attaining an Associate in Arts Degree, he or she will be paid at a rate set ten (10) salary rate ranges (approximately 5 %) above his or her then current base monthly salary step. 6.10 Career Development Pay. Employees hired on or after January 1, 2014 shall be eligible to receive Career Development Pay as follows: A. Associate of Arts Degree. Upon attainment of an Associate in Arts Degree and five (5) years of municipal police experience in the Police Officer or Police Sergeant classification, of which thirty (30) months must be with the City of Santa Ana Police Department, and attainment of "E" step, said employee will be paid at a rate set ten (10) salary rate ranges (approximately 5 %) above his or her then current base monthly salary step. B. Bachelor's Degree. Upon attainment of a Bachelor of Arts or Science Degree and seven (7) years of municipal police experience in the Police Officer or Police Sergeant classification, of which thirty (30) months must be with the City of Santa Ana Police Department, and attainment of `E" step, said employee will be paid at a rate set an additional (10) salary rate ranges (approximately 5 %) for a total of 20 salary rate ranges (approximately 10 %) above his or her then current base monthly salary step. If said employee obtains a Bachelor's Degree without attaining an Associate in Arts Degree, he or she will be paid at a rate set twenty (20) salary rate ranges (approximately 10 %) above his or her then current base monthly salary step. C. Master's Degree. Upon attainment of a Masters of Arts or Science Degree and ten (10) year of municipal police experience in the Police Officer or Police Sergeant classification, of which thirty (30) months must be with the City of Santa Ana Police Department and attainment of "E" step, said employee will be paid at a rate set an additional (10) salary rate ranges (approximately 5 %) for a total of 3 0 salary rate ranges (approximately 15 %) above his or her then current base monthly salary step. OX , 25B -26 ARTICLE VII 7.0 TRAINING AND EDUCATIONAL ASSISTANCE PROGRAM 7.1 Pru lose. A, To encourage the employees of the City of Santa Ana to take college courses and special training courses which will better enable them to perform their present duties and prepare them for increased responsibilities. B. To provide financial assistance to eligible employees for education and training. C. To establish eligibility requirements, conditions and procedures whereby such assistance may be provided. 7.2 Eli ibili . A. Applications for tuition reimbursement will be considered only from full -time, permanent City employees who have completed probation. B. Reimbursement is not authorized for courses for which the employee is receiving financial assistance from other sources such as G.I. Bill, scholarships, etc. C. Applications will be approved only for courses directly related to the employee's job or directly related to a promotional position in the employee's occupational specialty. D. Courses not ostensibly related to the employee's job, but which are required to qualify for a degree that is directly related to his or her job may be reimbursable only after all required occupationally related courses have been completed. E. Prior to receiving tuition reimbursement, employees must submit documentary proof of having received a grade of not less than "C" for the course. If objective ratings are not rendered for a specific course, then a certificate of successful completion must be submitted. F. Approval will be limited to courses given by accredited colleges and universities, city colleges or adult education courses under the sponsorship of the various Boards of Education. Workshops, seminars, conferences and similar activities not identifiable as a formal course of instruction within the curriculum of a recognized educational institution, do not fall within the purview of this program but may be authorized and funded by the interested department without coordination with the Personnel Services Department. G. When an employee is required by the Police Chief to attend a particular course or 25 25B -27 seminar, the expense shall be borne entirely by the City. H. For specifics regarding this Article, please refer to Santa Ana Police Department Training Bulletin 02 -07 - Scheduling of Training Days and Travel Time Compensation. 7.3 Reimbursement. A, Reimbursement will be based on the cost of tuition or registration fees and all required texts, eBooks and related material for each course. Additional expenses such as meals and parking fees are not reimbursable. B, Costs for required texts and eBooks are eligible for one hundred percent (100 %) reimbursement subject to the following conditions: 1, For textbooks: a duplicate of the required textbook(s) was unavailable for loan from the departmental libraries prior to the commencement of coursework; 2. For textbooks: any textbook(s) purchased by the City shall be submitted to the employee's respective departmental library in order that such text(s) may be made available to all employees. C, Tuition or registration costs of one hundred dollars ($100.00) or less are eligible for one hundred percent (100 %) reimbursement. Tuition costs in excess of one hundred dollars ($100.00) are eligible for seventy -five percent (75 %) reimbursement. Maximum tuition reimbursement per semester is five hundred dollars ($500.00) with a maximum of $1,500 a year. NOTE: Summer and winter sessions shall be counted as separate "semesters" for purposes of the program. D, Employees shall be limited, for purposes of tuition reimbursement, to a maximum of two (2) collegiate level courses of not more than a total number of units which is equivalent to six (6) "semester" units per semester. One (1) "quarter" unit shall equal two - thirds (2/3) of one (1) "semester" unit. 7.4 Procedures, A. An employee who desires to seek tuition reimbursement under the provisions of this Article must complete an Application for Training and Educational Assistance form and submit it to the Police Chief. B. The Police Chief will recommend approval or disapproval and forward the application to the Personnel Services Department. It is advisable that the applicant accomplish the procedures so far described prior to the inception of the course or disbursement of personal funds in order to ascertain the eligibility of the 26 25B -28 intended course of instruction for reimbursement under the provisions of this policy. C. Within three months after he /she has completed the course and received his /her final grade, the employee must include official verification of his /her final grade with appropriate receipts for tuition and textbook costs to the Personnel Services Department. These will be returned to the employee upon request. Applications not submitted to the Personnel Services Department within three months following completion of the course become void. D. Upon receipt of the required documentation, the Personnel Services Department will determine whether the completed course of instruction is compatible with the provisions of Sections 2 and 3 of this Article. If found to be compatible, the Personnel Services Department will compute the amount of reimbursement, authenticate the application, and forward it to the Police Chief. E, The Police Chief will then authorize the Finance and Management Services Department to reimburse the employee the approved amount out of the budget of the Police Department. 27 25B -29 ARTICLE VIII 8.0 OVERTIME 8.1 General Policy for Overtime Work. Whenever it shall be determined to be in the public interest for employees to perform overtime work, or in an emergency situation, the City Manager, the Police Chief, or an authorized representative of the City Manager or Police Chief, may require an employee to perform overtime work. 8.2 Definition. A. Standard Work Period Overtime. Overtime for those employees assigned to the Standard Work Period shall be authorized or required time worked in excess of those hours assigned to their particular Standard Work Period Schedule workday or hours in excess of 40 hours per Work Period However, subject to Article 8.3 below, commencing on the first day of the pay period following City Council approval of this MOU, if an employee uses sick leave or personal necessity leave as provided for in this MOU in the same Standard Work Period in which he /she works hours in addition to his /her regular hours, the sick leave and /or personal necessity leave shall not count as work hours which shall mean that the additional hours worked shall be paid at straight time if they are less than or equal to the number of sick leave or personal necessity leave hours used in the Standard Work Period. The use of such leave hours shall not affect overtime earned in accordance with Article 8.16 of this MOU. B, Alternative Work Period Overtime. Pursuant to this Agreement, employees assigned to the Alternate Work Period shall earn overtime for authorized or required time worked in excess of those hours assigned to their particular Alternative Work Period Schedule workday or hours in excess of his or her Alternative Work Period Schedule hours in a consecutive 28 day, 672 hour period. However, subject to Article 8.3 below, if an employee uses sick leave or personal necessity leave as provided for in this MOU in the same Alternative Work Period in which he /she works hours in addition to his/her regular hours, the sick leave and /or personal necessity leave shall not count as work hours which shall mean that the additional hours worked shall be paid at straight time if they are less than or equal to the number of sick leave or personal necessity leave hours used in the Alternative Work Period. The use of such leave hours shall not affect overtime earned in accordance with Article 8.16 of this MOU. 8.3 Computation of a Workday and Work Period. Effective on the first day of the pay period following City Council approval of this MOU, paid leave for holidays, vacation, and other time off with pay, except for sick leave and personal necessity, () shall be credited towards the total time worked in computing a regular workday, and /or a work period, as defined herein. Sick leave and personal necessity shall not count as hours worked towards the total time worked in computing a regular workday and /or a work period. Work i 25B -30 amounting to less than six (6) minutes shall not be considered time worked. Overtime worked for six (6) or more minutes shall be calculated in six (6) minute intervals. Leave without pay shall not be credited towards the total time worked in computing a regular workday, and /or a work period, as defined herein. 8.4 Compensation for Overtime. A. The preferable method by which overtime shall be compensated is by monetary payment, at one and one -half (1 1/2) times the employee's regular rate of pay. B, Should the Police Chief determine that the best interests of the City will be served thereby, he or his designee may permit an employee to be compensated for overtime work by earning compensatory time off at the rate of one and one -half (1 1/2) hours for each hour of overtime worked. This time, hereinafter identified as "comp time" shall be accrued as set forth below. C. Effective on the first day of the pay period after City Council approval of this MOU, all comp time banks in existence for employees represented by this agreement shall be split into two separate banks. The first bank, which will be called the "Non -FLSA Comp -Time Bank ", shall have deposited into it all comp time earned as of that date in excess of one - hundred (100) hours. All employees with comp time balances below one - hundred (100) hours will not have a Non -FLSA Comp -Time bank created for them. The Non -FLSA Comp Time Bank can never have hours added to it. The horns in that bank can only be used as leave time and when using such leave will not cause the City to have to pay another employee overtime to fill behind the employee using the leave. The comp time in this bank cannot be cashed out during employment, only at the time the employee leaves City employment. If an employee uses the comp time in this bank during employment and exhausts the entire accrual in this bank, the employee's Non -FLSA Comp Time Bank will be closed as no additional hours may accrue into this bank. 2. The second bank will be called the "FLSA -Comp time Bank ". This bank will have deposited into it comp -time employees have accrued up to one- hundred (100) hours. The FLSA Comp Time Bank has a maximum accrual of one - hundred (100) hours. An employee who has 100 hours in this bank will earn overtime paid at time and one half the employee's regular rate of pay for overtime earned in accordance with this MOU. An employee who works overtime and who has less than 100 hours in his /her FLSA Comp Time Bank may be able to accrue hours (at the rate of 1.5 hours for each hour of overtime worked) in accordance with subdivision (B) above. The Comp 29 25B -31 time in this bank can be cashed in accordance with the provisions detailed below . a. Beginning July 1, 2013, each affected employee who has accrued comp time credits in the FLSA Comp Time Bank, may elect to convert up to twenty (20) hours of such accrued time each calendar year quarter to the cash equivalent thereof, to a maximum of eighty (80) hours per calendar year. D. Use of Comp Time from the FLSA Comp Time Bank 1. When an employee submits a request for time off using accrued compensatory time, and that employee has found a qualified replacement, the time off request will be granted. A qualified replacement means that the replacement officer or employee is able to fulfill the requirements of the position to which the requesting officer is assigned. a. Compensatory time off requests made for consideration during the monthly scheduling meetings will be treated as any other time off and granted only on the basis of seniority. b. Pursuant to the 3 -12 Operating Rules, officers may trade work days with other officers within the 28 -day deployment period. Any trades must be approved by the affected Lieutenants and the Field Operations Bureau Commander. 2. When an employee submits a request to take time off using accrued compensatory time and the officer deployment is above minimum staffing for the day requested, then the request will be granted without further conditions. However, if the number of officers scheduled to work on the day(s) of the request is at or below minimum staffing as defined by the department, the compensatory time off request will be granted only if a qualified replacement has volunteered and committed to work the assignment left open by the request for time off. The volunteer may exchange days off with the requesting employee within the 28 -day deployment period, whichever applies, or may elect to receive overtime compensation. 3. Requests for use of compensatory time off during holidays as defined by this MOU, must be submitted in time to be considered during the monthly scheduling meeting held by bureau and division commanders for the upcoming month. These requests will be considered by seniority and will be granted only if officer deployment is above minimum staffing. The policy of the department has been, and will continue to be, that 30 25B -32 compensatory time off requested during a City- designated holiday will be treated as any other time off request and will be granted in order of seniority as long as minimum staffing levels are met. The replacement policy in 8.4 D.4 below will not apply to compensatory time off requests submitted for consideration during monthly scheduling meetings. 4. Although it is always preferable for the officer to find a qualified replacement when requesting the use of compensatory time off, if provided sufficient notice of a request for time off, the department will work with employees to find a qualified replacement. Sufficient notice and reasonable period will be defined as follows: a. Seventy -two (72) hours' notice for one (1) day or less of time off requested. b. Five (5) calendar days' notice for more than one (1) workday up to one (1) workweek. c, Fourteen (14) calendar days' notice for more than one (1) week compensatory time off request. 5. If an employee has provided sufficient notice of a compensatory time off request, the department will work with the employee to find a qualified replacement in the following manner: a. The watch commander will maintain a calendar of time off that has been requested in accordance with the guidelines listed above. Qualified employees will be allowed to volunteer to work these shifts. In the future, the department may develop, at its own discretion, an automated schedule that will contain this information. b, If an employee volunteers and signs up to work for another employee who has requested compensatory time off, that volunteering employee will be held responsible for working that full shift without further reminder. Employees who do not show up to work, or retract their offer to replace another officer, may be subject to disciplinary action and may not be permitted to volunteer to work in this manner in the future. 6; The watch commander shall send out an e -mail message to all officers requesting a volunteer to cover the shift by switching days off or working on overtime. 7. When a compensatory time off request is made in a manner that does not 31 25B -33 comply with this policy, and granting that request would unduly disrupt the operations of the department, the department may deny that request. 8.5 Incremental Usage. Time off with pay to compensate for overtime worked may be taken in increments as small as one -half (1/2) hour. 8.6 Excess Usage. If compensatory time off is used in excess of that available, such excess compensatory time off will first be deducted from any available comp time bank, vacation benefits and finally, deducted from the next scheduled wage or salary payment. 8.7 No Effect on Other Benefits. Overtime work shall not apply to the earning of employee benefits (retirement, holidays, vacation accrual, sick leave accrual and employee insurance benefits), toward the completion of probationary period or to progression within a salary rate range. 8.8 Overtime Work to be Apportioned. To the extent that he is reasonably able to do so, the Police Chief shall arrange work programs to minimize overtime work; necessary overtime work shall be apportioned among employees of like classification and assignment. 8.9 Advance Compensation for Overtime. Time off with pay as compensation for overtime may not be granted or taken in advance of the overtime work for which the time off compensates. Before compensatory time off with pay may be taken, as herein provided, the overtime worked must have been recorded on official payroll records at or about the time the overtime work was performed. In the absence of such recording, no compensatory time off with pay will be permitted. 8.10 Compensation for Overtime: Exclusions, Overtime pay or comp time shall be allowed an employee for attendance at conventions, conferences, seminars or the like, as long as prior authorization is received. Overtime pay or comp time pay shall be permitted only for attendance which is ordered on such employee's normal days off or for time beyond a normal workday's duration. Please refer to Santa Ana Police Department Training Bulletin 02 -07 for details. 8.11 Call- Back -Duty. A. Employees who are on call during their off -duty time due to their assignment (i.e., Homicide Investigators, Internal Affairs Sergeants, Crimes Against Persons Sergeants, etc.) and are called back to work will be paid for their travel time at the overtime rate from the time they leave their home until the time they return home, or until their regularly scheduled shift begins. Only that period of time devoted to work will be compensated. B. Employees who are ordered back to work while off -duty because of an emergency or other unforeseen event will be paid for travel time at the overtime rate from the 32 25B -34 time they leave their home until they return home, or until their regularly scheduled shift begins. Only that period of time devoted to work will be compensated. C. Employees who are called at home and offered voluntary overtime work, and elect to accept the offer, will not be compensated for travel time in any manner. Similarly, employees who sign up for voluntary overtime, or who have advance notice that they will have to work during their off -duty time on an overtime basis, will not be compensated for travel time. 8.12 t\ucrtted Overtime Paid Upon Promotiorrs or Upon Separation. Upon an employee's appointment to a position in which overtime may not be earned or upon an employee's separation from employment with the City by resignation, retirement, layoff or otherwise, he or she shall forthwith be compensated for any overtime accumulated to the time immediately preceding such promotion or separation. 8.13 Court Appearance. Compensation for court appearance by personnel covered by this Agreement shall be as follows: A. For each required court appearance made by an employee during his or her off - duty time in regard to City business, employees shall be paid overtime for the period of time from their arrival at court until they are released from court or the court session closes for that day. However, in no case, shall an employee receive less than two (2) hours overtime for a court appearance. If court appearances are made both in the morning and afternoon of a particular day, two (2) hours overtime will be allowed for each session attended. If the employee is not released and must remain available for afternoon court, the employee shall be paid overtime for all hours the court is in session that day. The employee must provide a copy of the subpoena requiring his or her attendance to initiate payroll procedures. B. A subpoenaed employee scheduled to appear in court on City business during off - duty time may be placed on stand -by status by the Police Chief or his authorized representative if the employee can respond to the court, if called, within 60 minutes of the employee's notification. In the event such off -duty employee is on stand -by status during any court session and is not required to appear in court, such employees shall be compensated two (2) hours on a straight time basis, for each court session. Such employee may elect, in lieu of paid time, two (2) hours of comp time off for standby time and not appearing in court, with the approval of the Police Chief. If such off -duty employee on stand -by actually appears in court, he or she shall be compensated as provided in Subsection A, supra. C. Employees assigned to the 3/12.5 or 7/12.5 Work Schedule who appear in court during their regularly scheduled workweek, and as a result do not receive 33 25B -35 adequate rest, will be allowed to flex their scheduled shift start time up to four hours, with the approval of the employee's immediate supervisor and watch commander, or immediate supervisor and section commander. Alternatively, the employee may be allowed to use up to four hours from his /her "Comp Time Banks" at the beginning of their scheduled shift to ensure adequate rest, An employee whose work shift ends or starts within thirty minutes of a mandatory court appearance shall be compensated for those thirty minutes at an overtime rate. 2. Effective on the first day of the pay period following approval of this MOU by the City Council, employees assigned to a Watch 3 who are required to appear in court following the end of his /her shift will have the option of remaining on duty or ending their shift. Employees that continue active duty will be compensated at time and one half while on duty. Employees that end their shift will be unpaid prior to their court appearance. D. Employees who are on call for court during off -duty time, and who are called to testify, will be paid at the overtime rate of time and a half of their regular hourly rate, to include actual travel time from their home to court and back, or until their regularly scheduled shift begins. Travel time will be limited to a maximum of one (1) hour each way. Only that period of time devoted to work will be compensated. Time spent on personal pursuits or other non -work related activity will not be compensated. E. Those employees who have advance notice of their required appearance in court, have arranged an appearance time with the District Attorney's Office, or who otherwise have advance notice of mandatory court appearances, will not be compensated for travel time in any manner. F. Employees who appear in court during off -duty hours may elect to start their normal work shift early as specified herein. G. A subpoenaed employee scheduled to appear in court on City business during off - duty time and placed on standby status by the Police Chief or his authorized representative will be compensated two (2) hours on a straight time basis if he or she is not advised of the cancellation of his or her appearance within five (5) Court business days of said appearance. 8.14 Creation of Association Comp Time Bank. A. Any member of the Association who works overtime, or has accrued but unused holidays, can designate that he or she will contribute the value of such time to a bank for use by members of the Association for the purposes and subject to the 34 25B -36 restrictions provided herein. B, Any member of the Association may receive time off for the welfare of officers, community service and any lawful activity of the Association with pay drawn from the bank described in Subsection A of this Section, provided that said employee first gains approval for said use by the executive board of the Association in the manner specified by its rules as adopted from time to time, and subject to the approval or disapproval of the Police Chief consistent with the operational needs of the Police Department. C. No withdrawal or use of such bank may be made by or on behalf of an employee ordered to take time off without pay for discipline imposed by the Police Chief or his designee. D. The City agrees that effective January 1, 2014, it will provide the SAPOA with a quarterly accounting (at the end of March, June, September and December) of all Association Comp Time accrued and used. . 8.15 Declaration of State of Emergency. Emergencies shall be governed by the provisions of Santa Ana Municipal Code Section 9 -194. 8.16 Compensation of Voluntary Contract Overtime. Exclusive of other provisions of this Article, except Section 8.7 (No Effect on Other Benefits) supra, Police Officers and Police Sergeants who voluntarily agree to perform contract security services at games, parades, dances and similar public events shall be compensated at the rate of one and one -half (1 1/2) times the employee's regular rate of pay. The Police Chief shall determine how many off -duty police officers should serve as security officers at each event. Police Officers and Sergeants represented by the Association shall be given first opportunity to volunteer for said off -duty assignments. If, after a reasonable period of time, an insufficient number of police officers have volunteered to work such assignments, the Police Chief may offer the remaining "openings" to any person(s) he deems capable of performing the work at whatever straight -time pay rate the City considers to be appropriate. 35 25B -37 ARTICLE IX 9.0 HOLIDAYS 9.1 Legal holidays observed by full -time permanent and probationary employees covered by this Agreement are as follows: • January 1 st - New Year's Day. • Third (3rd) Monday in January - In observance of Martin Luther King Jr.'s Birthday. • Third (3rd) Monday in February -In observance of Presidents' Day. • Last Monday in May - In commemoration of Memorial Day, • July 4th - In observance of Independence Day, • First (1st) Monday in September - In observance of Labor Day. • November 11th -In observance of Veteran's Day. • Fourth (4th) Thursday in November - In observance of Thanksgiving Day. • The Friday immediately following Thanksgiving Day. December 25th - In observance of Christmas Day, • Last working day before Christmas Day, unless Christmas falls on a Thursday, in which instance, the day following Christmas Day shall be observed in lieu thereof. • One (1) Floating Holiday - Any workday selected by the employee with prior permission of the employee's supervisor. • Everyday proclaimed by the Mayor of the City as a holiday for City employees. Any holiday which falls on a Sunday will be observed on the following Monday. Any holiday which falls on a Saturday will be observed on the Friday preceding the Holiday. 9.2 Full -time, permanent and probationary employees covered by this agreement shall be entitled to receive 96 hours off during the calendar year in lieu of the twelve (12) holidays specified in Section 9.1, supra. Said hours, up to a maximum of 80 hours, may be carried over from one calendar year to the next and shall be cashed out upon separation from employment, not to exceed a maximum of 160 hours. An employee 36 25B -38 required to work on a City observed "legal" holiday shall be paid at his or her straight time rate. However, if an employee who separated from the service of the City has taken time off for holidays in advance of the date or day the holiday actually occurred, he or she must pay the City the cash value for such used but unearned holiday time off benefits prior to or at the time of separation. A. Holiday Leave Carryover - The parties agree to modify the maximum annual holiday leave benefit carryover as follows: In 2014, 160 hours; 2015, 140 hours; 2016, 120 hours; in 2017, 100 hours; in 2018, 80 hours. By January 1, 2018, the maximum annual holiday leave benefit carryover shall revert back to that as set forth in subsection "9.2 ", above, and that any accumulated holiday leave benefits in excess of that maximum allowable carryover limit not used prior to December 31" each year, shall be forfeited. Said hours shall be cashed out upon separation from employment, not to exceed a maximum as follows: In 2014, 248 hours; 2015, 228 hours; 2016, 208 hours; 2017, 188 hours; 2018, 168 hours. 9.3 Cash Option. Employees covered by this Agreement shall be given an option twice per calendar year to receive cash compensation ( "cash out ") computed on a straight time basis in exchange for eighty (80) hours of their annual holiday leave benefits set forth in Section 9.2 above. Specifically, employees may cash out up to 40 hours of holiday leave benefits in April of each calendar year and an additional 40 hours of holiday leave benefits in November of each calendar year. An employee that does not cash out holiday leave benefits in April may cash out a maximum of 80 hours of holiday leave benefits in November. Such option may be eliminated or modified to the extent it is construed as overtime under Department of Labor guidelines implementing provisions of the Fair Labor Standards Act (FLSA). 9.4 All employees must actually work at least one day preceding the day a holiday listed in Section 9.1, supra, actually occurs in order to receive credit for such holiday. The employee will then be credited with all remaining holidays in the year occurring after the appointment. An employee separating from the service of the City must actually work at least one day following the day a holiday listed in Section 9. 1, supra, actually occurs in order to receive credit for that holiday. A newly- appointed employee must complete six (6) months of continuous, full -time service in order to receive credit for the Floating Holiday listed in Section 9.1 above. 9.5 This "time off," as defined in Article X, Section 10.6, may be taken in increments as small as one half (112) hour, with fractional usage rounded upward to the next higher multiple of one half (1/2) hour. 37 25B -39 9.6 A maximum of one (1) year of Holiday benefits may be carried over from one calendar year to the next. An employee terminating employment with the City may cash out accumulated, unused Holiday leave benefits, not to exceed a maximum of 160 hours. 30 25B -40 ARTICLE X 10.0 VACATION 10.1 Purpose. It is the policy of the City to grant employees vacation leave in order to provide them with a break in their regular work schedule, and this purpose will be used as a guide in the administration of the provisions of this Article. 10.2 Regular Vacation Period, A, Full time employees shall be granted regular vacation at the rate of 80 hours for each of his or her first and second completed year of service, accrued on a monthly basis at the rate of 6 2/3 hours for each completed month of service. Thereafter, all such employees shall be granted regular vacation at the rate of 120 hours for each completed year of service, accrued at the rate of 10 hours for each completed month of service. B. An employee who has completed less than one year's service during the calendar year shall receive a proportionate fraction in accordance with the amount of service to his or her credit during the year; provided, however, no employee shall be entitled to, or receive payment for, any vacation until he or she has completed six (6) months of continuous service. C. On or after the first (1st) day of the month following completion of six (6) months of continuous full -time service, an employee may be allowed to take all or a proportionate fraction of his or her earned vacation, subject to scheduling approval of the employee's supervisor. D. Absence on sick leave for a period in excess of fifteen (15) consecutive calendar days shall not be considered as service for vacation accrual purposes. E. Computation of Regular Vacation, 1. In computing regular vacation, each municipal holiday that occurs during the vacation, and that falls on a day which the employee would have worked had he or she not been on vacation, shall be deducted from the computation so that ten (10) additional hours of regular vacation shall be allowed to the employee unless departmental practice provides some other manner of compensating for municipal holidays. Should an employee be confined to a hospital for sickness or injury while on authorized vacation, each full day of such confinement, when confirmed by a physician's statement and approval of the Police Chief, may be deducted from the computation of vacation expended and charged against the employee's accumulated sick leave. 39 25B -41 2, No employee shall have a right to accumulate or split his or her vacation, but the same may be allowed or required by the Police Chief. 10.3 Longevity Vacation. A. Each permanent employee is granted additional hours of vacation leave with pay for each computed year of full -time, continuous city service as set forth in the following table. This additional vacation shall be designated longevity vacation. complete d Hourly Equivalent Years of Additional Days 6 4 7 8 8 12 9 16 10 20 11 24 12 28 13 32 14 36 15 40 16 48 17 56 18 64 19 72 20 80 B. No employee becomes eligible for longevity vacation until completion of the M 25B -42 sixth year of continuous service, and each employee continues to earn the maximum of 80 hours of longevity vacation for each completed year of service in excess of 20 years. C. A period of earlier service does not apply toward longevity vacation accumulation when an employee has had a break in continuous service, unless the break in service is concluded by reappointment, as provided in Section 9 -114 of the Santa Ana Municipal Code or by reemployment from layoff within one (1) year. D. Leave of absence without pay, as provided in Article XI, Section 1E (Sick Leave - Extended) and Section 10.8 (Authorized Absence Without Pay - Long Term) herein, does not constitute a break in continuous service as used in this section; however, the leave of absence period shall not be applied toward the accumulation of longevity vacation. Absence on military leave followed by reinstatement, as provided in Section 9 -143 of the Santa Ana Municipal Code does not constitute a break in service, and the period of absence on such military leave shall be applied toward the accumulation of longevity vacation. I An employee that is absent without pay for a full calendar year will have their longevity vacation accrual adjusted and not receive credit for one computed year of full -time, continuous city service toward the accumulation of longevity vacation. Such option may be eliminated or modified at the discretion of the Department to the extent it is construed as overtime under Department of Labor guidelines implementing provisions of the Fair Labor Standards Act (FLEA). E. Effective on the first day of the pay period after Council approval of this MOU, employees covered by this Agreement shall be given an option once per calendar year, to receive cash compensation computed on a straight time basis in lieu of up to a total of forty (40) hours of their longevity vacation leave benefits set forth in Subsection A above. 10.4 Limitation on Vacation, A. With the exception of a retiring employee, no employee is granted, and no employee shall be allowed to take, any vacation leave with pay in excess of 400 hours in any one year by any combination of the vacations granted in this Agreement. B. An employee may carry over from one calendar year to the next the combination of regular vacation accruals from the previous two (2) calendar years (up to 240 hours) and longevity vacation accruals from the previous calendar year (up to 80 hours).Vacation not taken beyond that amount shall be forfeited. Therefore, the 41 25B -43 maximum regular and longevity vacation that an employee with less than six (6) years' service could carry over is 240 hours and only an employee with more than 20 years of service could carry over 320 hours and take the authorized maximuun of 400 hours in any one year. Notwithstanding the foregoing, an employee may request approval to carry over vacation in excess of the maximum set forth herein. Such a waiver requires the approval of the Police Chief, the Executive Director of Personnel and the City Manager, C. For the period ending December 31, 2015, an employee's maximum longevity vacation accrual carry over shall be increased to a combination of accruals from the previous two calendar years (up to 160 hours). Therefore, through December 31, 2015, an employee may carry over both regular vacation accruals and longevity vacation accruals from the previous two (2) calendar years.Vacation not taken beyond that amount shall be forfeited. D. Effective January 1, 2016, the maximum yearly vacation carryover shall revert back to that as set forth in subsection `B ", above, and any accumulated vacation in excess of that maximum allowable carry over not used prior to January 1, 2017, shall be forfeited. E. Notwithstanding the foregoing, for any affected employee who is in jeopardy of losing vacation because of department staffing needs, may with approval of the Police Chief, Executive Director of Personnel and City Manager, receive a 30 -day extension beyond the normal cutoff date so that such employee will not lose vacation time 10.5 Excess Usage. If vacation time off is used in excess of that available, such excess vacation time off will be, first, deducted from any available compensatory time off accrual; finally, deducted from the next scheduled wage or salary payment. 10.6 Time Off Banks. Employee Time Off Banks exist for each employee in the unit. Time off will be computed on an annual basis. Separate banks will be maintained for vacation, holidays, and compensatory time, respectively, based on existing policies applicable to each. Time off from each bank may be taken in increments as small as one half (1/2) hour, with fractional usage rounded upward to the next higher multiple of one half (t /2) hour. Each affected employee shall be afforded the opportunity to submit time off selection(s) and the Police Chief or his designee shall make every reasonable effort to accommodate the employee's preference(s). The time at which an employee shall take his or her leave time shall be determined by the Police Chief, with due regard for the wishes of the employee and particular regard for the needs of the service. OF 25B -44 NOTE: All other policies and procedures described in Article VIII, "Overtime ", Article IX, "Holidays ", and Article X, "Vacation" will apply to the Time Off Banks. However, no employee will be allowed to carry a negative balance in any Time Off Bank. C -3 25B -45 ARTICLE XI 11.0 OTHER LEAVES OF ABSENCE 11.1 Sick Leave. A. Definition, Except as otherwise provided below, sick leave shall be deemed to mean absence from duty of an employee because of non - industrial illness or injury that prevents the employee from performing the duties of his or her position and shall be deemed to include time in quarantine resulting from non- duty related exposure to a contagious disease, B. Accrual, Each employee shall be entitled to, and shall earn, eight (8) hours of sick leave for each full calendar month of service in which he or she is employed by the City with full pay; provided, however, any absence on sick leave for a period of time greater than fifteen (15) consecutive calendar days in any one (1) calendar month shall not be considered to be service entitling an employee to earn sick leave as aforesaid. Subject to the other provisions in this Article, sick leave shall accrue to the credit of each employee to the extent that it is not used. Notwithstanding the foregoing, employees on leave of absence for service - connected illness or injury who are covered by the provisions of Labor Code Section 4850, shall continue to accumulate eight (8) hours of sick leave for each full calendar month of service for which he or she is employed by the City with full pay during said absence for service- connected illness or injury. C. Authorized Only When Necessary. Use of sick leave by City employees shall be authorized as follows: 1. Sick leave is not a right which an employee may use at his or her discretion, but shall be allowed only in cases of necessity and actual sickness or disability, or as authorized in Subsection J below. 2. With respect to "miscellaneous- member" employees covered by this Agreement, when such an employee's absence is caused by an industrial illness or injury, for which benefits are required to be provided under the State Workers' Compensation Insurance and Safety Act, the City shall pay 100% of salary for the first three (3) days of such absence and sick leave shall not be debited. D. Limit. The maximum total accumulation of sick leave with pay shall be 1600 hours. Sick leave usage of less than a full day shall be charged in minimum increments of one -half (l /2) hour, with fractional usage rounded upward to the next higher multiple of one -half (1/2). E. Extended. The City Manager may grant leave up to six months without pay to an W 25B -46 employee who has exhausted all of his or her accrued sick leave if the City physician or a licensed physician designated by the City Manager indicates that the employee will be sufficiently recovered to retain to his or her employment within a six (6) months period. Prior to the expiration of the additional time, the employee may return to his or her position provided that he or she has a certificate from one of the above mentioned physicians stating that the employee is able to perform all the duties of his or her position without qualification. In addition to the above, the City Manager may grant a further extension not to exceed a total of one (1) year without pay. P. Extension by Use of Vacation. After an employee's sick leave has been exhausted, he or she may be granted permission to take any earned vacation he or she may have accrued. G. Notice. The employee taking sick leave shall notify his or her immediate supervisor not less than one (1) hour prior to the time he or she is scheduled to report for duty. When the absence is more than three (3) consecutive working days, the employee must present to the Police Chief a physician's certificate stating that, in the physician's opinion, the employee could not report to work because of illness or injury and that the employee is sufficiently recovered to safely return to work. Such certificate shall be transmitted to the chief personnel officer with the report of the return of the employee to work. A physician's certificate or other satisfactory written evidence of actual illness or injury may be required after an absence of any duration of less than three (3) days. H. Denial. No employee shall be entitled to sick leave with pay while absent from duty because of sickness or injury purposely self - inflicted or caused by willful misconduct; or sickness or disability sustained while engaged in employment other than employment by the City, for monetary gain or other compensation, or by reason of engaging in business or activity for monetary gain or other compensation. I. Excess Usage. If sick leave is used in excess of that due and available to an employee, such excess sick leave, will first be deducted from any available compensatory time off benefit; second, from any available vacation leave benefit; third, from any available holiday leave benefits; and finally, deducted from the next scheduled wage or salary payment. Personal Necessity Leave. Each employee shall be afforded the opportunity to use up to 66 hours of sick leave per calendar year, on a non - cumulative basis, as personal necessity leave. All of this personal necessity leave may be used to attend to an illness of a child, parent, spouse or registered domestic partner of the employee. As used in this section, "child" means a biological, foster, or adopted child, a stepchild, a legal ward, or a child of a person standing in loco parentis; 45 25B -47 and "parent" means a biological, foster, adoptive parent, a stepparent, or a legal guardian. Up to three (3) days of this personal necessity leave may be used: (a) to attend to a serious accident to members of the employee's immediate family; (b) childbirth; (c) to cope with imminent danger to the employee's home or other valuable property; or (d) when the existence of external circumstances beyond the employee's control make it impractical for him or her to report for duty. For the purposes of this section only, a "day" shall be defined as the number of hours of work that an employee is required to work according to his or her specific workday schedule. K. Payment for Unused Sick Leave. Definition, All employees, except for those involved in disciplinary termination, shall be entitled to payment under the following provisions: After ten (10) years of cumulative full -time service with the City, each qualified employee shall be entitled to payment for one -third (1/3) of the total sick leave benefit credited to his or her account upon the effective date of such termination, not to exceed a maximum limit of 427 hours, at the rate of pay in effect on the date of such termination. a. At his or her option, an employee may convert the above lump sum payment option into health insurance or long term care insurance premiums to the extent necessary to provide the employee and his or her designated eligible dependents, if any, with benefits under the health insurance program maintained by the Association. The City's obligation to pay such premiums shall be terminated when the sum of premiums paid equals one - hundred fifty percent (150 %) of the amount of the lump sum payment that the employee would have received for unused sick leave benefits had this option not been elected, not to exceed a maximum of 640 hours. 2, After 15 years of cumulative full -time service with the City, each qualified employee shall be entitled to credit for two - thirds (2/3) of the total sick leave benefit credited to his or her account upon the effective date of such termination, not to exceed a maximum limit of 1,066 hours, calculated at the rate of pay in effect on the date of such termination. This credit shall be applied toward monthly health insurance premiums or toward long- term care insurance premiums, beginning on the effective date of termination. The City's obligation to pay such premiums to the Association on behalf of the employee shall be terminated when the total credit as described above has been exhausted. 46 r 3. After 20 years of cumulative full -time service with the City, each qualified employee shall be entitled to one of two options: (a) payment for 1/3 of the total sick leave benefit credited to his or her account upon the effective date of such termination, not to exceed a maximum limit of 533 hours, at the rate of pay in effect on the date of such termination, or (b) credit for 2/3 of the total sick leave benefit credited to his or her account upon the effective date of such termination, not to exceed a maximum limit of 1,066 hours, as defined in "2" above. 4. After 25 years of cumulative full -time service with the City, each qualified employee shall be entitled to one of two options: (a) payment for 2/3 of the total sick leave benefit credited to his or her account upon the effective date of such termination, not to exceed a maximum limit of 1,066 hours, at the rate of pay in effect on the date of such termination, or (b) credit for 2/3 of the total sick leave benefit credited to his or her account upon the effective date of such termination, not to exceed a maximum limit of 1,066 hours, as defined in "2" above. 5, A lump sum payment shall be made to the beneficiaries of any eligible employee whose death occurs while such employee is an active employee of the City, such payment to be in the amount of 1/3 of the total sick leave benefit credited to the employee's account at the time of his or her death, and at the rate of pay effective on the date of death. 6. Upon the death of any retired employee receiving a benefit under this provision said benefit will continue to be provided on behalf of said retired employee to his or her beneficiary. 11.2 Bereavement Leave. An employee shall be granted up to three (3) days leave without loss of pay in case of death of a member of the employee's immediate family. For purposes of this Section only, a "day" shall be defined as the number of hours of work that an employee is required to work according to his/her specific workday schedule. Such leave is designated as bereavement leave. "Immediate family" as used in this section is limited to: A. Any relative by blood or marriage who is a member of the employee's household; B. A parent, parent -in -law, stepparent, spouse, registered domestic partner, child, brother, stepbrother, sister, stepsister, grandparent or grandchild of the employee, regardless of residence; C. Any other relative of the employee by blood or marriage where it can be established by the employee that as a result of such relative's death, the employee's presence is required. 47 25B -49 11.3 Military Leave. A. Proof of Orders and Reinstatements. An employee shall be granted military leave if he or she furnishes the Chief Personnel Officer satisfactory proof of his or her orders to report for duty. Upon return and upon showing proof of actual service pursuant to such orders, he or she will be reinstated as provided in Section 9 -143 of the Santa Ana Municipal Code. B. Temporary. Members of the reserve forces of the United States, or the National Guard, granted temporary leave when ordered to duty, in accordance with the Military and Veterans Code and Section 9 -144 of the Santa Ana Municipal Code, will be granted leave with pay not to exceed thirty (30) working days in each calendar year after one year's service with the City upon presenting satisfactory proof of orders to and from such temporary active duties. 11.4 Jury and Witness Leave. When an on -duty employee is called to serve as a juror or a non -party witness in any court action he or she shall be allowed leave for the time actually required for such service, without loss of pay. Each on -duty employee called for such service shall present to the Police Chief for examination the subpoena calling him or her to such service and shall pay into the City Treasury the fees collected for such service, with the exception of reimbursement for transportation expenses, if any. Refer to Departmental Order 396 - Jury Duty for specifics. 11.5 Examination Leave. Employees participating in examinations conducted during their normal working hours for positions in the competitive service of the City of Santa Ana will be granted leave with pay for the time actually required, without loss of any accrued vacation or compensatory time off benefits. 11.6 Unauthorized Absence. Unauthorized absence from duty for any duration of time may be considered cause for dismissal. Absence from duty without leave for five (5) consecutive working days shall be deemed a resignation from the service; provided, however, if upon return to duty the person so absenting himself makes an explanation satisfactory to the Police Chief of the cause of his absence, the Police Chief may restore him to his position, with the City Manager's approval. 11.7 Authorized Absence Without Pay. Absence without pay not to exceed five (5) consecutive working days, may be authorized by the Police Chief. Absence without pay not to exceed fifteen (15) calendar days may be authorized by the department with the approval of the City Manager. Such absences may be authorized only if in the judgment of the Police Chief they serve the best interest of the City. 11.8 Authorized Absence Without Pay - Lony Term. Upon receipt of a written request from an employee having permanent status plus action by the Police Chief recommending approval of the request, the City Manager may grant a leave of absence for up to six (6) months. 48 25B -50 An employee returning to duty with the City shall inform the Police Chief and chief personnel officer of his or her intention at least thirty (30) calendar days prior to the expiration of the six (6) months period or shorter period if the full six (6) months is not taken. Upon receipt of such notice, the Police Chief will take steps necessary to restore the employee to his or her former position. 11.9 Administrative Leave, The City Manager is authorized to grant, at his discretion, administrative leave with or without pay for permanent employees if, in his opinion, such a leave is in the interests of the City. 11,10 Industrial Leave, A. Each "safety member" employee covered by the provisions of Labor Code Section 4850 who is compelled to be absent from duty because of an illness or injury covered by the State of California Workers' Compensation Insurance and Safety Act shall, in lieu of temporary disability compensation payable under the aforementioned Act, continue to be paid his or her normal salary and accrue other benefits in accordance with the provisions of Labor Code Section 4850. B, Any period of time during which an employee is required to be absent from his or her position by reason of an industrial injury or industrial illness for which he or she is entitled to receive compensation shall not be considered a break in continuous service for the purpose of his or her right to salary adjustment or to the accrual of vacation and seniority. 11.11 Catastrophic Leave Donation. In order to assist employees otherwise granted leave of absence without pay by the City Manager because of a catastrophic, non - industrial medical condition or injury, the City and Association agree to implement a Catastrophic Leave Donation Program. A. Guidelines. It shall be understood that all donations under this procedure are voluntary and subject to taxation for the recipient. Employees may donate vacation or compensatory time or holiday leave time to the eligible employee. In no event shall sick leave be donated. 2. Employees shall be provided a two -week period to submit donations, Donations received after this two -week period shall not be processed. The two -week period for each case shall be designated by the Police Chief or his designee as provided herein below. a. If all previous time donated has been exhausted, the recipient may request a new donation period be designated by the Police Chief or his designee as provided herein below. 49 25B -51 3, All vacation, compensatory time or holiday leave time donations must be made in two (2) hour increments. There is no limit on the amount of the donation that can be made. 4. Any authorization of donations not made in accordance with the procedures outlined in Section C, subparagraph 2 below, will not be processed. S. All donations shall be irrevocable. 6. In the event the recipient returns to work before leave donations have been exhausted, any balance on the books shall be accrued by the recipient and designated as sick leave and may be used pursuant to Article XI, Sections 11.1 A through 11.1 K above. B: Eligibility. Full -time employees shall be eligible for catastrophic leave donations if the following criteria are met: 1. When it is reasonably foreseeable that all accrued time on the books, such as sick leave, compensatory time, vacation, and in lieu holidays, will be exhausted and the employee's illness will continue past the time when the employee will be on paid status. 2. The Police Chief or his designee has approved a written request for donations accompanied by a medical statement from the employee's attending physician. The attending physician's statement must verify the employee's need for an extended medical leave and an estimate of the time the employee will be unable to work. C. Procedure. Upon receipt of a valid request for donations from an eligible employee, the Police Chief or his designee shall post a notice of the eligible employee's need for donations on bulletin boards accessible to employees. No confidential medical information shall be included in the posted notice. 2. Employees wishing to donate time to an eligible employee must sign his or her authorization of the transfer of such donated time and provide: a. His or her name, department name, and employee number; b, The number of hours of compensatory, holiday or vacation time of the donation within the limitations of Section A, subparagraph 3 above; so 25B -52 c. The name, department, and employee number of the recipient; d. A statement indicating that the donor understands such donation of time is irrevocable. 3. At the close of the two -week donation period, the department shall verify that each donating employee has accrued vacation, holiday and /or comp time balances sufficient to cover the designated donation. 4. The department shall submit all approved donation authorizations for an eligible employee at one time for processing. No donation authorizations for the eligible employee will be processed after this period. However, employees who receive donations under this procedure and who exhaust all donated hours may request an additional donation period subject to the provisions of Section A, herein. 5. The City shall add the donated time to the recipient's sick leave account. D. Upon the death of any active employee receiving a benefit under this provision, the City agrees to pay any unused Catastrophic Leave Donations remaining on the books to the surviving beneficiary. E. For those current employees with unused catastrophic leave on the books, the City agrees to convert said unused catastrophic leave to sick leave for use in accordance with the provisions of Article XI, Sections 11.IA through ll.1K above. 11.12 Assignment Departmental Seniority Effective July 1, 2013, employees covered by this agreement who are authorized to be on an unpaid medical leave for twelve (12) weeks or less shall continue to accrue seniority related to their particular assignment, as it relates to the badge number list or for any other purpose concerning Police Department Operations for which seniority is considered. Once such leave of absence exceeds twelve (12) weeks, the employee will no longer accrue seniority (for all purposes, including, but not limited to his /her classification, assignment or rank). While such employee will not lose any of the seniority he /she has previously earned, by not continuing to accrue seniority at that point, others who previously were less senior may become more senior than such employee for seniority purposes in the Department. 51 25B -53 ARTICLE XII 12.0 EMPLOYEE INSURANCE 12.1 During the term of this Agreement the City will contribute toward the payment of premiums for health, dental and long -term disability insurance plans administered by the Association for the benefit of the employees represented by the Association as follows: A. Medical Insurance. Effective January 1, 2014, the City will contribute $1,335.00 per month to the Santa Ana Police Officers Association Medical Insurance Trust Fund for each affected employee enrolled in medical insurance plans provided by the Association for its bargaining unit members and their eligible dependents. Any contributions necessary to maintain benefits under the plans in excess of the aforementioned amount per month shall be borne entirely by the Association and /or the enrollee. B. Life Insurance. The City shall maintain in effect for the term of this Agreement its existing life insurance plan for employees covered by this Agreement on the same basis as said plan was offered to employees as of December 31, 1988 except the term life insurance coverage for each affected employee will be in the amount of twenty thousand dollars ($20,000), plus twenty thousand dollars ($20,000) accidental death and dismemberment (AD + D) coverage, at no cost to the employee. 12.2 Retiree Health Insurance Plan. Members retiring on or after July 1, 1997, will be provided health insurance premium reduction assistance, All bargaining unit employees and the Association shall hold the City harmless, defend and indemnify the City for any claims regarding the administration of, or the payment of, claims under any Association designed retiree health insurance benefit plan. 12.3 Employees on unpaid leave of more than fifteen (15) calendar days shall not receive the City's contribution toward any insurance coverage. The Police Department will notify the Association of all employees on unpaid leave or who separate from City employment within three (3) working days. The City will continue the payment of contribution for insurance coverage until the end of the month in which the Association had received notice from the City of the employee's separation from employment. 52 25B -54 ARTICLE XIII 13.0 RETIREMENT 13.1 General. The City shall continue to make contributions to the California Public Employees' Retirement System (CaIPERS) in accordance with its contract with CaIPERS for employees covered by said contract as amended. 13.2 Deferred Retirement. The City shall continue to malce payment to CaIPERS on behalf of each employee covered by this Agreement in accordance with the following schedule: A. With respect to "safety- member" employees, the City shall pay an amount equal to nine - ninths (9 /9ths) of his or her individual employee retirement contribution. B. With respect to "miscellaneous- member" employees covered by this Agreement, the City shall pay an amount equal to eight- eightlis (8 /8ths) of his or her individual employee retirement contribution. Such payments shall be credited to the individual employee's CaIPERS account. Such payments are not increases in base salary and no salary rate range applicable to any of the employees covered by this Agreement shall be changed or deemed to have been changed by reason thereof. As a result, the City will not treat these payments as ordinary income and thus, will not withhold federal or state income tax from said payments. The City has received an opinion or ruling from the Internal Revenue Service confirming that these payments are deferred compensation, not ordinary income. In the event that the City receives a subsequent ruling from the Internal Revenue Service that such payments are ordinary income of the employees instead of deferred compensation, the City's obligation to make such payments shall discontinue and in place thereof the base salary of each affected employee shall forthwith be increased by eighteen (18) salary rate ranges (9.0 %) for "safety - member" and sixteen (16) salary rate ranges (8.0 %) for all "miscellaneous- member" employees covered by this Agreement. For the purpose of reporting an employee's compensation to CaIPERS, the City shall include these payments as if they were a part of the employee's base salary. 13.3 CaIPERS Fourth Level of 1959 Survivors Benefits, Effective November 7, 2002, the City will provide CaIPERS fourth level of 1959 Survivors Benefit to all eligible employees in the unit, 13.4 CalPERS Pre- Retirement Optional Settlement 2 Death Benefit. Effective July 5, 2000, the City shall provide the CaIPERS Pre- Retirement Optional Settlement 2 Death Benefit 53 25B -55 to all employees covered by this Agreement. 1.3.5 3% at 50 Service Retirement Benefit for Classic Safety Members. The City contracts with CalPERS to provide Classic Safety employees (classic members as that term is defined by the Public Employees' Pension Reforni Act of 2013) represented by this bargaining unit with the 3% at 50 Service Retirement benefit. Commencing July 1, 2013, all classic member safety employees covered by this Agreement shall pay nine percent (9 %) of their salary to pay for the employer portion of the City's CalPERS contribution. This payment shall be paid in accordance with Government Code Section 20516(f). For "New Members" within the meaning of the California Public Employees' Pension Reform Act ( PEPRA) of 2013. The PEPRA went into effect on January 1, 2013. The parties agree that if there is any other clean up or other retirement legislation which goes into effect during this MOU and if there are provisions of that legislation which, by law, automatically goes into effect, either party may request to negotiate over the legislation, including over the impact. Retirement Formula: Per Government Code Section 7522.25(d), also known as 2.7% @ 57 retirement formula for sworn. Final compensation will be based on the highest annual average compensation earnable during the 36 consecutive months immediately preceding the effective date of his or her retirement, or some other 36 consecutive month period designated by the member. Effective July 1, 2013, employees shall pay one half of the normal cost rate, as established by CaIPERS. 13.6 Military Service Credit as Public Service. Effective January 2, 2001, Safety employees, and April 5, 2002, Miscellaneous employees, respectively, may elect to purchase up to four (4) years of service credit for any continuous active military or merchant marine service prior to employment. The employee must contribute an amount equal to the contribution for current and prior service that the employee and the employer would have made with respect to that period of service. The City agrees that, as soon as practicable following Council approval of this Agreement, and amendment to the CalPERS contract, employees who elect to purchase service credit may do so on a "pre -tax" basis. 13.7 2.7% at 55 Service Retirement Benefit for Classic Miscellaneous Members. Effective July 1, 2009, the City amended its retirement contract with CalPERS to provide Classic Miscellaneous employees covered by this Agreement with the 23% at 55 Service Retirement benefit. Pursuant to CalPERS regulations, this formula applied to employees who were in active status on that date. 54 25B -56 Commencing July 1, 2013, all classic non- safety employees covered by this agreement (i.e., those subject to the Miscellaneous Ca1PERS formula) shall pay ten and one half (10.5 %) percent of their salary to pay for the employer portion of the City's Ca1PERS contribution. This payment shall be paid in accordance with Government Code section 20516(f). Pre - Taxable Benefit. To the extent permitted by Ca1PERS and Internal Revenue Service regulations, the City shall make the above employee deductions pre -tax contributions. For "New Members" within the meaning of the California Public Employees' Pension Reform Act ( PEPRA) of 2013 The PEPRA went into effect on January 1, 2013. The parties agree that if there is any other clean up or other retirement legislation which goes into effect during this MOU and if there are provisions of that legislation which, by law, automatically goes into effect, either party may request to negotiate over the legislation, including over the impact. Retirement Formula: Per Government Code Section 7522.20(a), the 2 %@ 62 retirement formula for non - sworn. Final compensation will be based on the highest annual average compensation earnable during the 36 consecutive months immediately preceding the effective date of his or her retirement, or some other 36 consecutive month period designated by the member. Effective July 1, 2013, employees shall pay one half of the normal cost rate, as established by CalPERS. Pre- Taxable Benefit. To the extent permitted by Ca1PERS and Internal Revenue Service regulations, the City shall make the above employee deductions pre -tax contributions. 13.8 Credit for Unused Sick Leave. Effective January 1, 2002, a non -sworn employee covered by this Agreement can have unused accumulated sick leave at the time of retirement converted to additional service credit, pursuant to regulations prescribed by PERS. The City must report only those hours of unused sick leave that were accrued by the employee during the normal course of employment. This section applies to members whose effective date of retirement is within four (4) months of separation from employment. Effective July 1, 2007, the provisions of this section will also apply to sworn employees covered by this Agreement. 55 25B -57 ARTICLE XIV 14.0 RELEASE TIME FOR ASSOCIATION REPRESENTATIVE During the term of this Agreement, the City agrees to grant full -time release from duty for one (1) Association representative for the conduct of Association affairs subject to the following: 14.1 The Association shall reimburse the City for one hundred percent (100 %) of salary (including any salary additives, such as career incentive pay) and benefit costs. Such reimbursement may be from the bank established pursuant to Section 8.15 of Article VIII of this Agreement. Effective July 1, 2012, the parties agree as follows: A. The POA President will be compensated at a rate consistent with his or her departmental rank including all assignment pay, pay additives, and premiums in place at the time he or she assumes the position of POA President. B. The value of the President's pay will include base salary, pension, premiums, and medical only. C. The value of the Floating Holiday donations will include base salary, pension, premiums, and Medicare. D, Effective July 1, 2012, the City shall pay the POA President a "Confidential Premium" in lieu of 20 hours per pay period at time and one -half. This premium is contained in the California Public Employees' Retirement Law (PERL) and is described as "compensation to rank and file employees who are routinely and consistently assigned to sensitive positions requiring trust and discretion." The parties agree that the value of this premium shall be equivalent to 28 hours of pay at straight time per pay period. The rate paid shall be tied to the incumbent's rank. The POA agrees that the acceptance of said compensation as described in section E as "PERSable" is subject to PERS approval and if it is determined that said compensation is not "PERSable" the City is not obligated to provide additional benefits. E. The Police Chief shall allow on -duty time, (up to three days) for five board members, once per year, to attend the Peace Officers' Memorial. The Police Chief shall allow on -duty time (up to four days) for five board members, once per year, to attend the FOP.. POA will pay for all costs for the board members attendance at said events, including per diem, travel, hotel, etc. If the Memorial or FOP falls on a board members normal day off, they will not receive on -duty pay for attendance. 14.2 The Association shall provide an insurance policy or policies, or certificate of such insurance, naming the City of Santa Ana, its officers, employees and agents as insured or additional insured, which provides coverage against liability for any and all claims and /or M 25B -58 suits for damages or injuries to persons or property resulting from or arising out of any act or omission of said Association representative. Said policy or policies of insurance shall provide coverage for both bodily injury and property damage in not less than the following minimum amounts: One million dollars ($1,000,000.00) combined single limit or its equivalent. Said policy or policies shall also contain a provision that no termination, cancellation or change of coverage of insured or additional insured shall be effective until thirty (30) days' notice thereof has been given in writing to the City of Santa Ana. 14.3 The Association shall provide the City of Santa Ana with an insurance certificate from a workers' compensation insurance carrier certifying that it carries primary workers' compensation insurance on behalf of said Association representative and the policy shall not be cancelled nor the coverage reduced except upon ten (10) days' prior notice to the City of Santa Ana. 14.4 The Association shall indemnify and save harmless the City of Santa Ana, its officers and employees, from and against any and all damage to property or injuries to or death of any person or persons, including property and employees or agents of the City of Santa Ana, and shall defend, indemnify and save harmless the City of Santa Ana, its officers and employees, from any and all claims, demands, suits, actions or proceedings of any kind or nature, including, but not by way of limitation, workers' compensation claims, resulting from or arising out of the negligent acts, errors, or omissions, or arising out of the intentional or malicious acts of Association's representative. 14.5 The Association and the City of Santa Ana agree that the Association's representative will not be required to carry out any peace officer's duties during such time that the Association's representative is on such full -time release from duty. The Association's representative will be required to comply with the Rules and Regulations of the Santa Ana Police Department as they apply to off -duty employees, except such representative will not be required to report for duty for any purpose. 14.6 Upon return to duty from such full -time release, the Association's representative shall be restored to the same position without loss of any benefits as he or she would have occupied or accrued if there had been no disruption in duty status. The Association agrees that since the Association representative does not report for duty or account to the City for his or her sick leave or vacation time, that vacation and sick leave accruals shall be treated as follows: A. The Association representative shall accrue eight (8) hours of sick leave each month until the accrued sick leave total reaches a maximum of 1600 hours. B. Vacation shall be accrued consistent with existing POA MOU provisions. The Association representative may not carry over from one (1) calendar year to the next more than the equivalent of one (1) longevity vacation period and the equivalent of one (1) regular vacation period from the previous two (2) years. 57 25B -59 Regular vacation in excess of that accrued during the previous two (2) year period will be forfeited. C. The Association representative may not donate his /her accrued vacation or holiday time. M 25B -60 ARTICLE XV 15.0 SAFETY 15.1 The City and the employees of the City agree to comply with all applicable federal, state and local laws, and City of Santa Ana regulations, which relate to health and safety. 59 25B -61 ARTICLE XVI 16,0 RESIDENCY 16.1 To the extent possible, the City shall perform any and all acts necessary to remove limitations upon where employees reside who are covered by this Agreement. At the discretion of the Police Chief, selected special duty assignments may be designated as rapid response assignments. In those instances, the Police Chief may apply specific residency requirements upon members assigned to those positions. M 25B -62 ARTICLE XVII 17.0 DISCIPLINE 17.1 Any permanent employee covered by this Agreement may only be disciplined in accordance with the standards and procedures and subject to all rights of appeal set forth in Santa Ana Municipal Code Sections 9 -9, 9 -10, 9- 118.1, et seq. Any probationary employee covered by this Agreement may be disciplined in accordance with the standards and procedures set forth in Santa Ana Municipal Code Sections 9 -90, 9 -91, 9- 118, and subject to review in accordance with the grievance review procedure contained in this Agreement. 17.2 In addition, a new section shall be added to the Municipal Code to provide as follows: A. In the event an employee is ordered to absent himself from the job based on probable cause and it is subsequently determined by the Police Chief, the City Manager, Personnel Board or a court of competent jurisdiction, that cause did not exist for the ordered absence, the employee shall have restored to him any paid leaves of absence against which such absence may have been charged, and he shall be granted a retroactive leave of absence with pay for the time during which he was prohibited from performing the duties of his position, less any compensation paid to him by the City during such ordered absence unless such employee waives his/her rights to retroactive pay. B. In the event an employee is reduced, suspended and /or discharged, and upon appeal the City Manager, Personnel Board or a court of competent jurisdiction does not sustain such reduction, suspension, and /or discharge, the employee shall be entitled to his base rate or salary including all additives, vacation, and sick leave as if such unsustained reduction, suspension, or discharge had not been invoked. However, in no event shall an employee be entitled to any salary or credit for vacation and sick leave for any period of time covered by a suspension sustained on appeal or for any period of time waived by the employee as a condition to the granting of a continuance of any hearing on appeal. C. If, during an absence for which an employee is paid pursuant to this Section, he earned any money which he would not have earned had he continued to perform the duties of his position, such sum shall be deducted from the salary otherwise payable to him pursuant to this Section. 61 25B -63 ARTICLE XVIII 18.0 GRIEVANCE REVIEW PROCEDURE 18.1 Definition of Grievance. A grievance shall be defined as a timely complaint by an employee or group of employees or the Association concerning the interpretation or application of specific provisions of this Agreement, or of the rules and regulations governing personnel practices or working conditions of the City; except, however, those matters specifically assigned to the jurisdiction of the City Personnel Board by provision of the City Charter and the Civil Service Rules and Regulations. No employee shall suffer any reprisal because of filing or processing of a grievance or participating in the Grievance Review Procedure, 18.2 Informal Process. A. An employee must first attempt to resolve the grievance on an informal basis through discussion with his or her immediate supervisor without undue delay, but in no case, beyond a period of ten (10) calendar days after the occurrence of the alleged incident giving rise to the grievance, or when the grievant knew or should have reasonably become aware of the facts giving rise to the grievance. If the employee's grievance is directed against the actions of his or her immediate supervisor, the employee may initiate his or her grievance with his or her Division Commander. in such cases, the employee shall file his or her grievance directly with the Division Commander within ten (10) calendar days of the event. Response time lines will continue as designated for Division Commander and above. If the grievance is directed toward the Division Commander, the employee may file directly with the Bureau Commander. B, The Supervisor will respond to the grievance within seven (7) calendar days of receiving the grievance. C. If the grievance is not resolved at the immediate supervisor level, the employee, within ten (10) calendar days of the supervisor's response, will attempt to resolve the grievance on an informal basis through discussion with his or her Division Commander, The Division Commander will respond to the grievance within seven (7) calendar days of receiving the employee grievance. D, Every effort shall be made to find an acceptable solution to the grievance through this informal process. Es If the grievance is not resolved at the informal level, the employee shall then set forth the grievance in writing, indicate the nature of the action desired, sign it, and submit it in duplicate to his or her Bureau Commander. At this point, the 62 25B -64 grievance review process becomes formal. Should the grievant fail to file a written grievance, and in the manner specified above, within ten (10) calendar days after receiving the response from his or her Bureau Commander, the grievance shall be barred and waived. 18.3 Formal Process. A. If the grievance is not resolved through the informal process, and a written grievance is filed within the time limits set forth above, the grievant's immediate supervisor and Division Commander will add their comments and any justification they consider proper, sign it, and forward it to their Bureau Commander without undue delay, or in no case, more than seven (7) calendar days after receiving the formal grievance. A copy shall be provided to the employee. B. The Bureau Commander, after study of the case, shall attach his or her decision and reasons therefore, and return them to the employee within seven (7) calendar days after receipt of the written grievance. C. If no satisfactory settlement has been reached at the division level, the employee may, within seven (7) calendar days after receipt of the Bureau Commander's decision may, in writing, request a meeting with the Police Chief to pursue the employee's grievance. Failure of the grievant to take this action will constitute a waiver and bar to the grievance, and the grievance will be considered settled on the basis of the Bureau Commander's response. D. If the grievant files a written grievance to the Police Chief in the matter and within the time limits specified in "C" above, then a conference shall be held at the request of the employee or the Police Chief. F. The Police Chief shall inform the employee of his action within fourteen (14) calendar days of the filing of the written grievance with the Police Chief or the date the conference is held between the employee and the Police Chief. F. If no satisfactory settlement has been reached at the departmental level, the employee may, within seven (7) calendar clays after being informed by the Police Chief of his decision on the matter, and the reasons thereof, submit the grievance in writing to the City Manager, or his duly authorized representative, for determination. Failure of the grievant to take this action will constitute a waiver and bar to the grievance, and the grievance will be considered settled on the basis of the Police Chief s response. The City Manager, or his representative, after careful review, shall render a final decision on the merits of the grievance, in writing, and return it to the grievant within twenty -one (21) calendar days after receiving the grievance. A copy of the RK 25B -65 written grievance to the City Manager, and of the City Manager's decision, shall be filed in the Personnel Records of the department and the grievant's personnel jacket maintained in the Personnel Services Department. G, After the procedure set forth in this Article has been exhausted, the grievant, the Association, and the City shall have all rights and remedies to pursue said grievance under the law. 90 25B -66 ARTICLE XIX 19.0 DUES DEDUCTION AND INDEMNIFICATION 19.1 Dues Deduction. The City shall deduct dues, on a regular basis, from the pay of all employees recognized to be represented by the Association, who voluntarily authorize such deduction, in writing, on a form to be provided for this purpose by the City. The City shall remit such fimds to the Association within thirty (30) days following their deduction. 19.2 Indemnification. The Association agrees to hold the City harmless and indemnify the City against any claims, causes of actions, or lawsuits instituted by a member or members of the Association arising out of the deductions or transmittal or such funds to the Association, except the intentional failure of the City to transmit, to the Association, monies deducted from the employees pursuant to this Article. 65 25B -67 ARTICLE XX 20.0 CITY RIGHTS 20.1 The City reserves, retains, and is vested with, solely and exclusively, all rights of Management which have not been expressly abridged by specific provision of this Agreement or by law to manage the City, as such rights existed prior to the execution of this Agreement. The sole and exclusive rights of Management, as they are not abridged by this Agreement or by law, shall include but not be limited to the following rights: A. To manage the City generally and to determine the issues of policy. B. To determine the existence or non - existence of facts which are the basis of the Management decision. C. To determine the necessity of organization of any service or activity conducted by the City and expand or diminish services. D. To determine the nature, manner, means, and technology, and extent of services to be provided to the public. E. To determine methods of financing. F. To determine types of equipment or technology to be used, G. To determine and /or change the facilities, methods, technology, means, and size of the work force by which the City operations are to be conducted. H. To determine and change the munber of locations, relocations, and types of operations, processes, and materials to be used in carrying out all City functions including, but not limited to, the right to contract for or subcontract any work or operation of the City. L To assign work to and schedule employees in accordance with requirements as determined by the City, and to establish and change work schedules and assignments. .L To relieve employees from duties for lack of work or similar non - disciplinary reason, subject to the provisions of the City Charter, Municipal Code, federal and state law and this Agreement. K. To establish and modify productivity and performance programs and standards. L, To discharge, suspend, demote, or otherwise discipline employees for proper cause in accordance with the provisions and procedures set forth in the City W1 r Charter and Santa Ana Municipal Code. M. To determine job classifications and to reclassify employees. N, To hire, transfer, promote, and demote employees for non - disciplinary reasons in accordance with this Agreement. O. To determine policies, procedures, and standards for selection, training, and promotion of employees. R To establish employee performance standards including, but not limited to, quality and quantity standards and to require compliance therewith. Q. To maintain order and efficiency in its facilities and operations. R. To establish and promulgate and /or modify rules and regulations to maintain order and safety in the City which are not in contravention with this Agreement. S. To take any and all necessary action to carry out the mission of the City in emergencies. 20.2 Except in emergencies, or where the City is required to make changes in its operations because of the requirements of law, whenever the contemplated exercise of Management's rights shall impact on a significant number of employees of the bargaining unit, the City agrees to meet and confer in good faith with representatives of the Association regarding the impact of the contemplated exercise of such rights prior to exercising such rights, unless the matter of the exercise of such rights is provided for in the Agreement. The City and Association agree that upon the expiration of this contract and during the good faith negotiations for a subsequent contract, salary and benefits shall continue at the then current rate. 67 25B -69 ARTICLE XXI 21.0 STRIKES AND WORK STOPPAGES 21.1 Prohibited Conduct, A. The Association, its officers, agents, representatives, and /or members agree that during the term of this Agreement, they will not cause or condone any unlawful strike, walkout, slowdown, sick -out or any other unlawful job action by withholding or refusing to perform services. B. Any employee who participates in any conduct prohibited in Subsection A above shall be subject to suspension, demotion or dismissal by the appointing authority. C. In addition to any other lawful remedies or disciplinary actions available to the City, if the Association fails, in good faith, to perform all responsibilities listed below in Section 21.2, Association Responsibility, the City may suspend any and all rights and privileges, accorded to the Association in this Agreement, including but not limited to suspension of the Grievance Review Procedure and dues deduction. 21.2 Association Responsibility. In the event that the Association, its officers, agents, representatives, or members engage in any of the conduct prohibited in Section 21.1A of this Article, Prohibited Conduct, the Association shall immediately instruct any persons engaging in such conduct that their conduct is in violation of this Agreement and unlawful, and they must immediately cease engaging in conduct prohibited in said Section 21.1A, and return to work. 68 25B -70 ARTICLE XXII 22.0 LAYOFFS 22.1 All layoffs within the competitive service occasioned by abolishment of a position, the combination of duties of two (2) or more positions, or the reduction in numbers of employees in a given class, shall be governed by seniority in the class. Reemployment shall be in reverse order of layoff. 22.2 Any promotional probationary employee laid off under these procedures who held permanent status in a lower class shall retain seniority rights in the previously held classification provided that it is still listed in the City's current basic classification and compensation plan. 22.3 Any permanent, full -time employee laid off under the above provisions may request a demotion to a position in a lower class provided he /she meets reasonably related qualifications required for placement in the class and the position is vacant. 22.4 In lieu of layoff, an employee may elect to work in a lower level classification, in which be or she has served, providing that classification is within the same job family /career ladder. In that event, the employee's length of service in the next lower classification will be added to his or her length of service in the affected classification, and said combined seniority shall be used to bump down into the next lower classification. This method of combining seniority shall be applied to subsequent lower classifications. 22.5 For positions that were advertised in the Police Department as `open and promotional" or "promotional only" which are open to Police Department employees only, there will be created a "job ladder" such that those employees in positions to be eliminated through layoff shall be entitled to return to the POA job classification in the Police Department from which they promoted, "bumping" any employee in that job class with less cumulative years of service in that job class than the bumping employee had in that job class prior to promotion. 22.6 Notice of Service. On request, a laid off employee shall receive a statement certifying that his /her services have been satisfactory. Layoff shall not be used in lieu of a disciplinary dismissal. 69 25B -71 ARTICLE XXIII 23.0 SOLE AND ENTIRE AGREEMENT 23.1 It is the intent of the parties hereto that the provisions of this Agreement shall supersede all prior agreements and memoranda of agreement, or memoranda of understanding, or contrary salary and /or personnel rules and regulations or administrative codes, provisions of the City, oral and written, expressed or implied, between the parties, and shall govern the entire relationship and shall be the sole source of any and all rights which may be asserted hereunder. This Agreement is not intended to conflict with federal or state law or the City Charter. 23.2 The City will continue to administer its employee relations and its personnel policies and procedures in accordance with duly- adopted ordinances and resolutions, and the affected employees will continue to be governed thereby during the term of this Agreement. fit 25B -72 ARTICLE XXIV 24.0 WAIVER OF BARGAINING DURING THE TERM OF THIS AGREEMENT 24.1 During the term of this Agreement, the parties mutually agree that they will not seek to negotiate or bargain with regard to wages, hours, and terms and conditions of employment, whether or not covered by the Agreement or in the negotiations leading thereto, unless required by specific provisions of this Agreement, and irrespective of whether or not such matters were discussed or were even within the contemplation of the parties hereto during the negotiations leading to this Agreement. Regardless of the waiver contained in this Article, the parties may, however, by mutual agreement, in writing, agree to meet and confer about any matter during the term of this Agreement. 71 25B -73 ARTICLE XXV 25.0 SEPARABILITY PROVISION 25.1 Should any provision of this Agreement be found to be inoperative, void, or invalid by a court of competent jurisdiction, all other provisions of this Agreement shall remain in frill force and effect for the duration of this Agreement, provided that if any such affected provisions invalidate or void any benefits of employees covered hereunder, the parties shall forthwith commence negotiations to replace the invalidated benefits with benefits of comparable value. 72 25B -74 ARTICLE XXVI 26.0 TERM OF AGREEMENT 26.1 The term of this Agreement shall he from July 1, 2013 through June 30, 2015. 73 25B -75 ARTICLE XXVII 27.0 RATIFICATION AND EXECUTION 27.1 The City and the Association have reached an understanding as to certain recommendations to be made to the City Council for the City of Santa Ana and have agreed that the parties hereto will jointly urge said Council to adopt a new wage and salary resolution which will provide for the changes contained in said joint recommendations. The City and the Association acknowledge that this Agreement shall not be in full force and effect until ratified by the membership of the Association and adopted by the City Council of the City of Santa Ana, Subject to the foregoing, this Agreement is hereby executed by the authorized representatives of the City and the Association and entered into this 19TH day of November, 2012. CITY OF SANTA ANA, a Municipal Corporation of the State of California Dated: By: MAYOR Dated: By: CITY MANAGER Dated: By: EXECUTIVE DIRECTOR - PERSONNEL SERVICES ATTEST: CLERK OF THE COUNCIL APPROVED AS TO FORM: 74 25B -76 This Agreement has been ratified by the membership of the Santa Ana Police Officers Association. Dated. SANTA ANA POLICE OFFICERS ASSOCIATION By: PRESIDENT 75 25B -77 EXHIBIT A BASIC SALARY AND WAGE SCHEDULE 0 1 2 3 4 5 6 7 8 9 41 1542 1549 1557 42 1619 1627 1635 43 1700 1708 1717 44 1785 1793 1802 45 1874 1883 1892 46 1968 1977 1987 47 2066 2076 2086 48 2169 2179 2190 49 2277 2288 2299 50 2391 2402 2414 51 2511 2523 2536 52 2637 2650 2663 53 2769 2782 2796 54 2907 2921 2936 55 3052 3067 3082 56 3205 3221 3237 57 3365 3381 3398 58 3533 3550 3568 59 3710 3728 3747 60 3896 3915 3935 61 4091 4111 4132 62 4296 4317 4339 63 4511 4533 4556 64 4741 4764 4787 65 4978 5002 5026 66 5226 5252 5278 67 5488 5515 5542 68 5762 5790 5818 1565 1643 1725 1811 1902 1997 2097 2201 2311 2427 2548 2676 2810 2950 3098 3253 3415 3586 3765 3954 4152 4360 4579 4810 5051 5304 5569 5847 1573 1651 1734 1820 1911 2007 2107 2212 2322 2439 2561 2690 2824 2965 3113 3269 3432 3604 3784 3974 4173 4382 4601 4834 5076 5330 5596 5876 76 1580 1588 1659 1668 1742 1751 1830 1839 1921 1930 2017 2027 2118 2128 2223 2234 2334 2346 2451 2463 2574 2587 2703 2717 2838 2853 2980 2995 31.29 3144 3285 3302 3449 3467 3622 3640 3803 3822 3994 4014 4194 4215 4404 4426 4624 4648 4858 4882 5101 5126 5356 5382 5623 5650 5905 5934 25B -78 1596 1676 1760 1848 1940 2037 2139 2246 2357 2475 2600 2730 2867 301.0 3160 3318 3484 3658 3841 4034 4236 4448 4671 4906 5151 5408 5678 5963 1604 1612 1684 1693 1769 1778 1857 1866 1950 1960 2048 2058 2150 2160 2257 2268 2369 2381 2488 2500 2613 2626 2744 2758 2881 2896 3025 3040 3176 3192 3335 3352 3501 3519 3676 3695 3861 3880 4054 4074 4257 4278 4470 4493 4694 4718 4930 4954 5176 5201 5434 5461 5706 5734 5992 6021 69 6050 6080 6110 6140 6170 6200 6230 6260 6291 6322 70 6353 6384 6415 6446 6478 6510 6542 6574 6606 6638 71 6670 6702 6735 6768 6801 6835 6869 6903 6937 6971 72 7005 7039 7073 7107 7141 7176 7211 7247 7283 7319 73 7355 7391 7427 7463 7499 7535 7571 7609 7647 7685 74 7723 7761 7799 7837 7875 7913 7951 7989 8029 8069 75 8109 8149 8189 8229 8269 8309 8349 8389 8431 8473 76 8515 8557 8599 8641 8683 8725 8767 8809 8853 8897 77 8941 8985 9029 9073 9117 9161 9205 9250 9296 9342 78 9388 9434 9482 9529 9577 9625 9673 9721 9770 9819 79 9857 9906 9955 10005 10055 10105 10156 10207 10258 10309 80 10350 10401 10453 10506 10558 10611 10664 10717 10771 10825 81 10868 10922 10976 11031 11086 11142 11198 11254 11310 11366 82 11411 11468 11525 11.583 11640 11699 11757 11816 11875 11934 83 11982 12041 12102 12162 12223 12284 12345 12407 12469 12532 84 12581 12643 12707 12770 12834 12898 12963 13027 13093 13158 85 13210 13275 13342 13409 13476 13543 13611 13678 13748 13816 86 13871 13939 14009 14079 14150 14220 14292 14362 14435 14507 87 14565 14636 14709 14783 14858 14931 15007 15080 15157 15232 88 15293 15368 15444 15522 15601 15678 15757 15834 15915 15994 77 25B -79 EXHIBIT B ASSIGNMENT Or CLASSES TO SALARY RATE RANGES 7/1/2013 RANGE JOB TITLE NO. Min Max POLICE OFFICER 690 6050 7355 POLICE SERGEANT 733 7463 9073 ANIMAL SERVICE OFFICER 1 626 4426 5382 ANIMAL SERVICE OFFICER II 656 5126 6230 BACKGROUND INVESTIGATOR 641 4764 5790 COMMUNICATIONS SERVICES OFFICER 621 4317 5252 CORRECTIONAL OFFICER 641 4764 5790 CORRECTIONAL SUPERVISOR I 690 6050 7355 CRIME RESEARCH AIDE 652 5026 6110 CRIME RESEARCH ANALYST 678 5706 6937 EMERGENCY OPERATIONS COORDINATOR 710 6670 8109 FIREARMS EXAMINER 697 6260 7609 FORENSIC SERVICES SUPERVISOR 728 7283 8853 FORENSIC SPECIALIST I 652 5026 6110 FORENSIC SPECIALIST II 671 5515 6702 PARKING CONTROL OFFICER 591 3728 4533 POLICE ATHLETIC /ACTIVITIES LEAGUE ASSISTANT DIR 620 4296 5226 POLICE COMMUNICATIONS SUPERVISOR 686 5934 7211 POLICE COMMUNITY SERVICES SPECIALIST 641 4764 5790 POLICE EVIDENCE AND SUPPLY SPECIALIST 624 4382 5330 POLICE EVIDENCE AND SUPPLY SUPERVISOR 644 4834 5876 POLICE INVESTIGATIVE SPECIALIST 641 4764 5790 POLICE PHOTO /VIDEO SPECIALIST 621 4317 5252 POLICE PROPERTY AND EVIDENCE SUPERVISOR 644 4834 5876 POLICE RECRUIT 650 4978 6050 POLICE SERVICE OFFICER 621 4317 5252 POLICE SERVICES DISPATCHER 646 4882 5934 RANGEMASTER 621 4317 5252 SENIOR PARKING CONTROL OFFICER 611 4111 5002 TRAFFIC SERVICES SPECIALIST 641 4764 5790 W r _ .I REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: AGREEMENT FOR MERCHANT PAYMENT SERVICES WITH TRANSFIRST, LLC CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO 191���1�L�1:TX� Authorize the City Manager and the Clerk of the Council to execute the attached agreement with TransFirst LLC, approving compensation not to exceed $70,000 annually, for two one -year terms commencing October 1, 2013 and continuing through September 30, 2015, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The Finance and Management Services Agency (FMSA) Treasury Division is responsible for maintaining all banking related services for the City. Since 1997, the Treasury Division embarked on a program to allow for payment of services through the use of credit cards. A component of banking is payment processing. Currently customers are able to use a credit card to pay City of Santa Ana fees or charges. Acceptance of a credit card as a form of payment involves utilizing a merchant service company. TransFirst presents MasterCard and Visa transactions on behalf of the City for all credit card payments made at City facilities including City Hall, kiosk, Police Department, and Parks Recreation and Community Services. On March 12, 2012, City Council authorized the moratorium of the credit card processing fee in order to attract more on -line payments by customers. In March 2013, the Treasury Division negotiated the reduction of the TransFirst, discount fee from 1.5% - 0% resulting in a savings of over $55,000 which has helped offset City costs. TransFirst has agreed to maintain the reduced rate for the term of this agreement. Given the vendors past performance and cost savings associated with the removal of the discount fee, staff recommends retaining TransFirst for merchant services. At the City Council meeting held on January 7, 2014, the FMSA Treasury Division agendized a renewal agreement with TransFirst for City Council consideration. At the meeting, the City Council approved and authorized the renewal of the agreement for a two year term with TransFirst. After further discussion with the City Attorney's Office, it was determined that the merchant card processing agreement should be updated and approved in conjunction with the consultant agreement. As such, staff is resubmitting the consultant and merchant card processing agreements for City Council approval. 25C -1 Agreement for Merchant Services with TransFirst LLC March 18, 2014 Page 2 FISCAL IMPACT Funds are budgeted and available in various department accounts (various - 62300). �S�m A �:� z Francisco Gutierrez Executive Director Finance and Management Services Agency Jvl� cd /mm Exhibit A Consultant Agreement Exhibit B Merchant Card Processing Agreement 25C -2 EXHIBTC A 8 25C -3 CONSULTANT AGREEMENT THIS AGREEMF.,NT, dated as of this _ day of _ 2014 by and between TransFirst, LLC, (hereinafter "Consultant "), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City "). The parties acknowledge the existence of that Consulting Agreement between the City and PRI dated March 1, 2004 (with all amendments, the "Prior Agreement "). TransFirst assumed the Prior Agreement through its acquisition of PRI. With the execution of this Consulting Agreement the parties agree the Prior Agreement shall terminate and this Consulting Agreement shall supersede the Prior Agreement in its entirety. RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of payment processing. B. The City acknowledges that it has received prior payment processing services from Consultant prior to the date of this Agreement pursuant to the Prior Agreement and intends this Agreement to cover payment for prior unpaid services commencing as of October 1, 2013 and to cover payment processing services going forward. C. Consultant represents that Consultant is able and willing to provide such services to the City. D. The parties agree this Consulting Agreement and all attachments shall govern the merchant accounts in existence as of the date of execution (such accounts include: 41399800818517; 41399800822550 ;41399800818822;41399800818830; 41399801.138592) and any new merchant accounts that may be established in the future. E. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. F. The City acknowledges and agrees that in the event of a conflict or inconsistency between the terms and conditions of this Agreement and the Merchant Card Processing Agreement, the terms of the Merchant Card Processing Agreement shall control. 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: 25C -4 1. SCOPE OF SERVICES Consultant shall perform credit card processing services according to the rates set forth in Exhibit A and in accordance with the terms and conditions set forth in the Merchant Card Processing Agreement attached to this Agreement as Exhibit S. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit A and in the Merchant Card Processing Agreement. The total sum to be expended under this Agreement shall not exceed $ 70,000.00 annually during the term of this Agreement. For purposes of computing the 12 -month period, the City acknowledges invoices for services rendered from October 1, 2013 . through the effective date of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on September 30, 2015, unless terminated earlier in accordance with Section 12, below, or pursuant to the Merchant Card Processing Agreement. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer- employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. WAIVED 25C -5 b. Business automobile liability insurance. WAIVED c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. b. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section I of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terns of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and /or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential. Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 25C -6 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 telefacsimile (714) 647 -6956 With courtesy copies to: Christine Duarte, Treasury Manager City of Santa Ana 20 Civic Center Plaza (M14) P.O. Box 1968 Santa Ana, CA 92702 -1968 Fax 714 - 647 -5304 Email: cduarte c�snnta- ana.gi g To Consultant: TransFirst LLC 12202 Airport Way, Suite 100 Broomfield, CO 80021 (631) 840 -6912 Attn: Peter Lucatuorto With copy to: TransFirst Legal Department 5400 LBJ Freeway, Suite 900 Dallas, Tx 75240 25C -7 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement, in conjunction with the attached Exhibits A and B, represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties, including the Prior Agreement. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail except over the Merchant Card Processing Agreement. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, that terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. 25C -8 b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be government and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in comiection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incotporated as if frilly set forth in the body of this Agreement. [signatures follow] 25C -9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR DAVID CAVAZOS Clerk of the Council City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney _ n By: Joss Assistant City Attorney RECOMMENDED FOR APPROVAL: CONSULTANT Francisco Gutierrez Executive Director of Finance and Management Services (NAME) (TITLE) Employer ID # or Individual SS # 7 25C -10 EXHIBIT B 25C -11 MERCHANT CARD PROCESSING AGREEMEti r This Merchant Card Processing Agreement ( "MPA ") is for merchant card payment processing services among the Merchant that signed the Application for Merchant Card Processing ( "Merchant Application'), the Merchant Bank, and the Processor The Merchant Application and the MPA are hereinafter collectively referred to as the "Merchant Agreement." The Processor and the Merchant Bank are hereinafter collectively referred to as the "Bank". Subject to the requirements of the Operating Rules, Processor and Merchant Bank reserve the right to allocate Bank's duties and obligations amongst themselves as they deem appropriate in their sole discretion, and Merchant Bank or Prceessor may jointly or individually assert or exercise any rights or remedies provided to Bank hereunder. If elected by Merchant on the Merchant Application, Processor will settle American ExpressO Card and DiscoverTP Network transactions in accordance with the terms set tomb in the Merchant Application and in doing so, Processor does not represent or indicate in any way that Merchant frank sponsors Processor into the American Express Network and Discover Network. Merchant Bank does not sponsor Processor into the American Express Network and Discover Network, is not providing or agreeing to provide Merchant any services hereunder with respect to American Express Card and Discover Network. Card transactions, does not determine or approve or agree upon any fees, charges, pricing, or any other terms and conditions, relating to American Express Card and Discover Network Card transactions, and has no responsibility or liability to Merchant for American Express Card and Discover Network Card transactions. Nor does Merchant Bank provide or agree to provide Merchant any services hereunder or have any responsibility or liability to Merchant with respect to any PIN -based debit or stored valneor electronic benefit transfer transactions (except only to the extent, if any, required under Visa's or MaslerCards Operating Rules or mandatory provisions of applicable law), or any JCB, Carte Blanche, or other Card type transactions (ether than Visa and MasterCard Credit and non -PIN based debit /stored value /electronic benefit transactions, including any such transactions made with Diner's international Cards which also carry the MasterCard Mark and am processed as MasterCard transactions), any CrmsCheck or other Check Services transactions, merchant gift or loyalty card transactions, or any other services specified in the Merchant Application as covered in whole or in part by this Agreement but as not being provided by Merchant Bank, To the extent applicable to American Express Card or American Express Network transactions and Discover Network Cards or Discover Network Card transactions, or to any of the other types of Cards, transactions or services referred to above or in the Merchant Application as not being provided by Merchant Bank, any reference herein or in any of the other doctuments constituting part of the "Merchant Agreement" (as defined below) to the forms "Bank" or "Merchant Bank" (except only to the extant the reference constitutes a complete disclaimer of responsibility or liability on the part of Bank or Merchant Bonk, or constitutes an obligation on the part of Merchant to indemnify, defend or hold. harmless Bank or Merchant Bank from or against any responsibility or liability) means Processor only. 'The appendices, addenda, schedules, Operating Guide and Fee Schedule that accompany this Merchant Card Processing Agreement, as amended from time 'to time as provided herein, are part of the terms and conditions of ibis Merchant Agreement, as are the Merchant Application and the Operating Rules, and are hereinafter individually and collectively referred to as the "Merchant Agreement" Capitalized terms used is this Merchant Agreement which are not defined herein shall have the meaning given to them in the Operating Guide, which can be fond at bent:// www .transfirst.mm /dncumenls.html, and which is incorporated by reference into this Agreement and may he amended from time to time try Dank upon notice to Merchant. According to the processing services selected by Merchant on the Merchant Application and in accordance with the terms of dais Merchant Agreement and applicable Operating Rules, Merchant agrees to participate in the Bank's Card processing program by honoring Cards in accordance with this Merchant Agreement; and to submit Transaction Receipts, Credit Transaation Receipts and other electronic door to Bank for the Card Program services provided by Bank, With respect to Visa Transactions: Merchant Bank is responsible for providing settlement funds directly Yo Merchant, and Processor shall not have access to or hold settlement funds. With respect to MasterCard Transactions: a) For purposes of the Merchant Agreement and perl'omtance of the Merchant Agreement by Processor, (q Pmecasor is the exclusive agent of Merchant Bank; (ii) Merchant Bank is at all times and entirely responsible for, and in control of, Processor's performance; and (iii) Merchant Bank must approve, in advance, tiny fee to or obligation of lire Merchant arising from or related to performance of the Merchant Agreement. b) The Merchant Agreement is not effective and may not be modified in any respect without the express written consent of Merchant Bank. c) Processor may not have access, directly or indirectly, to any account for funds or funds due to a Merchant and/or funds withudd from a Merchant for Chargebacks arising from, or related to, performance of the Mcrchant Agreement Merchant Bank may not assign or otherwise transfer an obligation to pay or reimburse a Merchant arising from, or related to, performance of the Merchant Agreement to Processor. d) Processor may not subcontract, sublicense, assign, license, franchise, or in any manner extend or transfer to any third party, any right or obligation of Processor set fords in the Merchant Agreement. 1. MERCHANT'S APPLICATION AND INFORMATION. By completing the Merchant Application, Merchant applies for the Card Program services covered by the Merchant Application and this Merchant Agreement. In their sole and absolute discretion, Processor and/or Merchant Bank may accept or reject Merchant's Merchant Application. Merchant may present Transactions to Bank only for the activities and in the volumes described on the Merchant Application, including the percentage of Mail/Plnone Order and Electronic Commerce Transactions. Presentation of the first Tmnsaction, including any test Transaction, by Merchant to Bank signifies Merchant's acceptance and agreement to be bound by this Merchant Agreement. 2. MERCHANT'S GENERAL DUTIES. 2.1 General. Merchant will comply with this Merchant Agreement (including the terms of the Operating Guide) for submitting and processing Transactions with Bank Bank is responsible to Merchant fur processing Transactions under the Operating Rules for the Cad Program services to which Merchant subscribes, which may vary among Card types. 2.2 Merchant's Responsibility for Acts of Others. Merchant, and not Bank, is responsible for any advice from, amts of, as well as emissions, acts of fraud or acts of misconduct by Merchant's employees, processors, consultants, advisors, contractors, Merchant Servicers, Agents, officers and directors. Merchant, and not Bank, is responsible for the use, unauthorized use or misuse of Merchant's equipment, POS Equipment. or software. 2.3 Electronic and Paperless Notices and Disclosures. Merchant consents to receiving electronically rather than in paper form all written notices, disclosures and other documents (" documents") which are to be provided by Bank to Merchant under this Merchant Agreement. Bank will notify Merchant that a Document is available at Processor's web site with a link to that specific page of the web site containing the Document. Merchant agrees that such notification may be sent to Merchant at the a -mail address provided as part of the Merchant Applicaion. By Merchant affirmatively checking the box to consent to receive paperless delivery of IRS Notices on the Merchant Application, Merchant acknowledges that it has reviewed and received the Consent to Paperless Delivery of IRS Notices, located at htto:/ twww .trmtsfirst.com /documents.html and that Merchant consents and agrees to receive IRS notifications by paperless delivery. Merchant understands and acknowledges that access to the Internet and e-mail are required lot Merchant to access Documents electronically or by paperless delivery and Merchant confirms that Merchant has such access- Merchant understands that there are costs related to accessing Documents electronically or by paperless delivery and Merchant agrees that Merchant is responsible for these related access costs. At any time, and without giving Merchant advance notice, Merchant Bank and/or Processor may elect not to send a Document electronically or by paperless delivery, in which case a paper copy of the Document will be sent to Merchant at the Merchant's last known address, as provided by Merchant, or such Document shall otherwise be provided as provided for herein 3, PROCEDURES FOR CARDTRANSACTIONS. 3.1 Honoring Cards. (a) Limited Acceptance. If appropriately indicated herein, Merchant shall be a Limited Acceptance Merchant, which means that Merchant has elected to accept only certain Visa and MasterCard card types as indicated on the Merchant Application, or via later notification The Visa or MasterCard Credit acceptance option on the Merchant Application refers to Visa Credit and Business transactions, and is what MasterCard refers to as "Other Card" transactions. Notwithstanding anything to the contrary in tare Application, Merchant can elect (i) to accept only Visa or MasterCard non -PIN based debalstored value/eleetronic benefit transactions (sometimes referred to as "signature debit' transactions, whether or not an actual signature is required), or (it) to accept only Visa or MasterCard Credit transactions, or (iii) to accept all Visa or MasterCard Credit and signature debit transactions; provided, however, that a Merchant who accepts any Visa or MasterCard Card types must accept all valid Visa or MasterCard Card types issued by a non -U.S. issuer Merchant is not required to accept Card brands other than Visa or MasterCard in order to accept Visa or MasterCard Cards (except that transactions using Diner's International Cards which also carry the MasterCard Mark must be accepted if Merchant accepts MasterCard Card transactions of the same type). Bank has no obligation Other than those expressly provided under the Operating Rules and applicable law as they may relate to Limited Acceptance. Bank's obligations do not include policing card types at the point of sale. Merchant will be solely responsible for the implementation of its decision for limited acceptance including but no[ limited to policing the card type($) of transactions at the point of sale submitted for processing by Bank. Should Merchant submit a transaction for processing for a card type it has indicated it does not wish to accept, Bank may process that transaction and Merchant will pay the applicable fees, charges, and assessments associated with that transaction. Merchant will comply with any applicable laws and Operating Rides for the card type processed (b) Discover. If Merchant has chosen to accept Discover Card Transactions in the Merchant Application, Merchant must accept Discover Cards at all Merchant establishments, including in payment for purchases of goods and services, for charitable contributions and for Cash Over fraasactions (subject to the terms of the Operating Guide), when properly presented for payment by a Cardholder. Subject to this section, a Merchant must create a Transaction Receipt for each Discover Card Transaction and deliver at least one copy of the Transaction Receipt to the Cardholder A. Merchant may issue a Cash Over (subject to the terns of the Operating Guide) in connection with a Discover Card Transaction The Merchant must deliver a single Authorization Request for the aggregate total of the goods/services purchase amount and the Cash Over amount. In addition, the Transaction Receipt must include both the purchase amount and the Cash Over amount. (e) PayPalrsr. If Merchant ties chosen to accept PayPal Payment Cud Transactions in the Merchant Application, Merchant must accept Paylsai Payment Cards at Page I of'/ (MIVMERAGMf vI0.10I3 25C -12 all Merchant establishments, including in payment for purchases of goods and services and for charitable contributions when properly presented for payment by a Cardholder. Subject to this section, a Merchant must create a Transaction Receipt for each PayPai Card Transaction and deliver at least one copy of the Transaction Receipt to the Cardholder. dB American Express. If Merchant has chosen to accept American Express@ Cards in the Merchant Application, Merchant must accept American Express Cards as payment for goods and services (other than those goods and services prohibited under Section 7 of the Operating Guide) sold, or (if applicable) for charitable contributions made, at all of its establishments, except as expressly permitted by state statute. Merchant is jointly and severally liable for the obligations of Merchant's establishments under the Merchant Agreement to the event Merchant's American Express annual charge volume exceeds &1,000,000 in is rolling twelve month period or is greater than $100,000 in any three consecutive months, Merchant will be considered a High CV Merchant by American Express and will be required to enter into a direct merchant card acceptance agreement with American Express, Upon any conversion to a direct agreement with American Express, Merchant will be bound by American Express' then current Card Acceptance Agreement and to any pricing and fees set by American Express. Merchant hits the right to opt -out of acceptance of American Express Cards at any time without affecting Merchant's rights to accept other card types, If Merchant elects to receive messages from American Express regarding products, services and resources available to it, as indicated on the Merchant Application, Merchant agrees messages maybe sent by American Express to the phone numbers, fax numbers or email addresses provided by Merchant, if a wireless number is provided, Merchant agrees communications may be sent. via SMS or text in addition to automated calls. Merchant may opt out of receiving messages by contacting Processor, 3.2 Operating Procedures for Transactions. In accepting Cards for the purchase of Merchant's goods and services, Merchant shall comply with the requirements of this Merchant Agreement, including but not limited to the Operating Rules and the Operating Guide, as the same are revised train time to time. 33 Submission of valid Transactions. (a) Merchant will submit to Batik a Transaction only if tire Transaction is made or approved by the Cardholder who is issued the Card used for die T'mnsactinn. Merchant will not submit directly or indirectly (i) any Transaction that Merchant knows or should have known to be fraudulent or not authorized by the Cardholder, (ii) any Transaction that results from a transaction outside of Merchant's normal course of business, as described on the Merchant Application; or (iii) any Transaction containing the account of a Card issued to Merchant or any account numbers issued to Merchant's business owners, family members and principals for Transactions that do not represent a purchase of goods or services from Merchant or a related credit. (b) If at any time the volume of Transactions in the Card - Absent Environment substantially exceeds the projected annual volume stated on the Application, or if at any time Bank suspects fraud, money laundering or violations of the Operating Rules, Bank may, in its sole and absolute discretion and in addition to other remedies that the Bank may have: (i) refuse to process the excessive or suspect Transactions; (it) process the Transactions and retain the funds received from processing until such time as the excess or suspect Transactions are found to be valid or invalid and processed in accordance with the Operating Rules; (in) suspend processing Card - Absent Environment Transactions and/or terminate the Agreement; or lie) amend the Agreement to protect the interests of Bank 34 Payments to Merchant for Valid Transactions. (a) Bank will provide provisional credit to Merchant for each valid Transaction which Merchant submits to Bank by crediting Merchant's Settlement Account, provided Bank has received settlement for the valid Transaction through the Interchange procedures specified by the Card Association applicable to the Card used for the Transaction (Bank does not provide payment for all Card types for which Authorization services are provided). Bank is not obligated to provide provisional credit to Merchant for Transactions submitted that are not valid Transactions, and may suspend or discontinue any provisional credit in Merchant Bank's anct Processor's sole and absolute discretion, including for any reason that would justify, termination of this Merchant Agreement. Each provisional credit from Bank to Merchant wilt he subject to adjustment, including revocation, upon Bank's further review and verification Provisional Credit to Merchant for a Transaction disputed by a Cardholder for any reason is net final. (b) Bank may deduct front any payment to Merchant the amount of any Credit Transaction Receipt processed for Merchant, any Chmgeback to Merchant, any amount to be deposited in the Reserve Account and any Processing Fees and amounts suffcuvrd to reimburse Bank for the amount of any Card Association fates or charges due from Merchant. Merchant must immediately pay Bank the amount by which a Credit Transaction Receipt processed on any clay exceeds valid Transactions submitted on that day. Without (uniting Bank's remedies, Bank may obtain the amount due by deducting it from the Settlement Account, Reserve Account or other accounts of or funds due Merchant. (c) Merchant acknowledges that all payments and credits provided to Merchant are provisional and subject to suspension, to Chargebacks and to adjustments in accordance with this Merchant Agreement and the Operating Rules and the Operating Guide, 15 Retrieval Requests. If Merchant deposits Transactions with Bank through magnetic tape, electronic transmission, or electronic data capture terminal, upon the request of a Card Association or Bank. Merchant shall respond to all Retrieval Requests within the time frames specified in the applicable Operating Rules If Merchant does not respond or responds late to a Retrieval Request, Merchant may be without recourse as Chargebacks for "non receipt of requested item" in most cases, cannot be reversed. 3.6 Petuipntent; Supplies; I)isphnys. (a) At Merchant's request, Processor will supply Merchant with quint -of sale equipment ( "POS Equipment ") that Merchant may need to process and submit Transactions. Processor will use good faith efforts to program the POS Equipment to operate at the Merchant Outlets in compliance with the Operating Rules; however, Processor makes no representations or warranties that Processor's programming of the POS Equipment famished by Processor will operate in compliance with the Operating Rules. if Processor supplies Merchant with POS Equipment or other equipment, then Merchant must return such equipment upon termination of this Agreement. It is understood by the parties that if Processor has not provided free use equipment, sections 3.6(a) -(d) do not apply. (b) Merchant acknowledges and understands that POS equipment may be supplied to Merchant that is the property of the Processor and is being provided to the Merchant for true use subject M the following conditions and requirements: (i) Merchant shall be liable for a $495 Pee for non - retum of Processor supplied POS Equipment if the Merchant terminates or ceases processing under the terms of this Agreement before the expiration of the initial or renewal term of this Merchant Agreement and fails to return the POS Equipment within ten days of termination or of ceasing processing. (it) Merchant wit] be liable for any damages to the POS Equipment from the dense or negligent use of the POS Equipment; (iii) Merchant will be liable for any reasonable monthly fee as determined by Processor for paper or other supplies provided by Processor for use with the POS Equipment' (iv) Processor, at its absolute and sole discretion, may allow for one terminal exchange at no charge, but may charge additional fees for subsequent exchanges; and, (v) Ttie POS Equipment that is the property of Processor is provided "AS -IS" and that Processor makes no warranty as to this POS Equipment's fitness loosely particular purpose (or any other Warranty) and disclaims day liability resulting from the POS Equipment or Merchant's use of the POS Equipment. (e) All Processor and third party POS Equipment and services provided or procured by Processor under this Merchant Agreement are provided "A&IS," but Processor will, at Merchant's expense, use reasonable commercial efforts to assist Merchant in culturing any wanunty offered by the third party supplier of such POS Equipment or services. (d) Merchant acknowledges that Processor or a third party is supplying the POS Equipment and that the Merchant Bank shall have no responsibility or liability for the POS Equipment supplied to Merchant. (e) Merchant will use only the forms for Transactions and electronic processing formals provided or approved in advance by Bank. Bank may change the farms from time to time, and, upon notification, Merchant will comply with any changes. Merchant will use Transaction forms or materials provided by Bank only for Transactions which Merchant submits to Bank. (f) Merchant may not (i) indicate or imply drat the Card Associations or Bank endorses any Merchant goods or services, (ii) refer to a Card Association or Bank in stating eligibility for Merchant's products, services or membership, or (iii) use any marks, symbols or logos owned by any Card Association or Bank for any purpose other than those permitted in the Operating Rules artful Operating Guide. 4. NIERCHANTB WARRANTIES. Upon signing the Merchant Application, and each time Merchant submits a'I'continuum, Merchant represents and warrants that: 4.1 Merchant has abided by this Merchant Agreement, and all applicable laws and Operating Rules; 4.2 Each statement made on the Merchant Application was true as of the date Merchant signed the Merchant Application agreeing to be bound by this Merchant Agreement 4.3 Thcre have been no materially adverse changes in information provided in the Merchant Application or in Merchant's financial condition, or management; 4.4 Merchant does not do business under a trade name or style not previously disclosed in writing, and there has been no change in the nature of Merchant's business or the product lines that Merchant sells not previously disclnse l; 4.5 The `transaction is genuine and arises from a bona Fide sale of merchandise or services by Merchant, represents a valid obligation for the amount shown on the Transaction Receipt and does not involve the use of ilia Card for any other purpose; 4,6 Merchant has title to the Transaction and Transaction Receipt, there am no liens or other encumbrances on it, and Merchant has the authority to convey the Transaction for processing; 43 'Fire Transaction is not subject to any dispute, set-off or counterclaim; 4.8 'fit- Transaction has not been previously presented for processing unless allowed by the Operating Rules or the Operating Guide; 4.9 Each statement on the Transaction Receipt is true, and Merchant has no knowledge of facts that would impair the validity or coilectabllity of the amount of the Transaction; 4.10 The person who executes the Merchant Application on behalf of Merchant has the full power and authority to execute the Merchant Application and to enter into this Iclercham Agreement; 411 This Merchant Agreement is the legal, valid, and binding obligation of the Merchant enforceable against the Merchant in accordance with its terms; 412 Merchant shall submit Transactions only in accordance with the information contained in the Merchant Application and this Merchant Agreement; 413 Merchant has die power and authority to authorize the automatic Ponds transfer provided for in this Merchant Agrccmcnl; Page 2 tf7 25C -13 UNIVkIERAGMI 10.1013 4.14 The Settlement Account is owned and controlled by the Merchant and is a valid account for processing debit and credit transactions tinder this Merchant Agreement; 4.15 Merchant is not (i) a Sanctioned Person, (ii) located in or operating under a license issued by a jurisdiction whose government has been identified by die U.S. Department of State as a sponsor of international terrorism under 22 U.S.C. 2371 or 50 U.S.C. App. 24050), (iii) located in or operating under a license issued by a jurisdiction that has been designated as non - cooperative with international anti -money laundering principles or procedures by an intergovernmental group or organization or which ilia U.S. is a member, or (iv) located in or operating under a license issued by a jurisdiction that has been designated by the U.S, Secretary of Treasury pursuant to 31 U.S.C. 5318A as warranting special measures due to money laundering concerns; and 4.16 That Merchant will immediately notify Merchant Bank and Processor of any material changes to any information provided herein including but not limited to a. change in Merchant's legal entity, location, business type, or die types of goods and services offered for sale by Merchant. 5. CONFIDENTIALITY; DATA SECURITY. 5.1 Transaction Receipts. Merchant will retain in a secure and confidential manner original or complete and legible copies of each Transaction Receipt, and each Credit Transaction Receipt raptured to be provided to Cardholders, for at least two years or longer if required by law or the Operating Rules. Merchant shall render all materials actua rung Cardholder Account Numbers unreadable prior to discarding. 52 Storage. Merchant will store Transaction Receipts and Credit 'i'ransnntion Receipts in an area limited to selected personnel, and when record- retention requirements have been met. Merchant will destroy the records so that the same are rendered unreadable. 5.3 Merchant Servicers and Agents. Merchant must notify Bank and receive Bank's approval prior in engaging any Merchant Servicer or Agent in connection with Merchant's acceptance of Cards or the submission of Transactions to Bank. Merchant shall provide Merchant Bank and Processor at least sixty days advance written notice of Merchant's election to use a Merchant Servicer or Agent. Merchant Bank and/or Processor may 'individually approve or deny the use of a Merchant Servicer or Agent in their sole and absolute discretion and at any time. If a Merchant Servicer or Agent is required to certify, register, or set in any fashion pursuant to the Operating Rules, Merchant shall cause such Merchant Servicer or Agent to cooperate with Merchant Bank in completing any steps required for registration and/or certification and/or action. Merchant is solely responsible for any and all applicable fees, costs, expenses and liabilities associated with such registration and/or certification and/or action. Bank shall in no event be liable to Merchant or any third only for any actions or inactions of any Merchant Servicer or Agent used by Merchant, and Merchant hereby expressly assumes all such liability. Merchant will immediately notify Bank if Merchant decides to use electronic authorization or data capture terminals provided by any entity other than Bank or its authorized designee ( "Third Party Terminals ") to process Transactions, including leasing a terminal from a third party. if Merchant elects to use 'third Party Terminals (a) the third party providing the terminals will be Merchant's Merchant Servicer in the delivery of Transactions to Bank; and (b) Merchant assumes full responsibility and liability for any failure of that third party to comply with the Operating Rules. applicable laws, rules or regulations or this Merchant Agreement Bank will not be responsible for any losses or additional fees incurred by Merchant as a result of any error by a third party agent or a malfunction in a Third Party Terminal. The use of a Merchant Servicer or Agent or software or systems provided by a Merchant Servicer or Agent that has connectivity to the Internet poses an increased risk, and Merchant assumes all liability for such increased risks. If Merchant utilizes software or hardware with a connection to the Internet such hardware or software interacts in any capacity with the provision of services contemplated pursuant to this Merchant Agreement, Merchant is solely liable without limitation for any and all consequences of such interaction. 5.4 Security. Merchant agrees and shall ensure that Merchant Servicers and Agents wilized by Merchant provide the same levels of security as those required of Merchant, and that such Merchant Servicers and Agents transmit data in accordance with: (a) ilia required formats) of the Card Associations; (b) the Operating Rules; and (e) the requirements of Bank. Merchant must have a written contract between die Merchant and its Agent or between the Merchant and the Merchant Servicer that stipulates adherence to the provisions of such information security requirements- Merchant shall indemnily and hold Merchant Bank and Processor harmless against losses or damages arising from the acts or Omissions of Merchant Servicers or Agents engaged by Merchant. 5.5 Loss or Theft. Merchant most immediately notify Merchant Bank. and Processor of any suspected or confirmed loss or theft of materials or records that contain Cardholder Account Numbers or Card Transaction information. In the event of a suspected or confined loss or theft Merchant shall provide immediate access to all facilities, systems, procedures, equipment. and documents as may be deemed appropriate by Bank or its designated representatives for Inspection, audit, and copying as deemed appropriate by both Merchant Bank and Processor in their individual sole discretion. Merchant shall be responsible for all costs associated with such inspection, audit, and copying however such costs may occur. 5.6 Merchant autluirizes Bank to release its name and address to any third party whom the Bank determines needs to know such information in order for Back to perform the Card Program services under this Merchant Agreement and who has requested such information. 5.7 Merchant will not (a) provide Cao folder Account Numbers, personal Cardholder information or Transaction information to anyone except Back, the Card Associations, or Merchant's Merchant Servicers or Agents for the purpose of assisting Merchant in Completing Card Transactions, or as specifically required by law; (b) retain or store Card Magnetic Stripe, CVV, CVV2, CVC2 or CID data (including 'track Data) subsequent to Authorization for a Transaction; (c) soil, purchase, provide or exchange Card Account Number information to any third party without the Cardholder's consent, or to any entity other than Merchant's Merchant Serviccrs or Agents, Bank, the Card Associations, or in response to valid legal process or subpoena; or to) release any Cardholder information over the telephone tinder any circumstances. 5.8 Merchant may not in any event, including its failure, including bankruptcy, insolvency, or other suspension of business operations, sell, transfer, or disclose any materials that contain Cardhalder Account Numbers, personal information or Transaaion information to third parties. In the event that Merchant's business fails or ceases to exist, Merchant is required to mar m to Bank all such information or provide proof of destruction of this information to Bank. 5,9 Merchant agrees to establish security procedures to protect Cardholder information and comply with the Visa Cardholder Information Security Program (LISP), MasterCard's Site Data Protection (SDP) Program, Discover Information Security Compliance (DISC), American Express Dam Security Requirements, and the Payment Card Industry data security standards. The Card Associations or Barak, and the respective representatives, may inspect the premises of Merchant or any Merchant Servicer or Agent engaged by Merchant for compliance with security requirements. Merchant acknowledges that any failure to comply will) security requirements may result in the imposition of restrictions on Merchant or the permanent prohibition of Merchant's participation in Card acceptance programs by file Card Associations. Merchant shall indemnify and hold Bank harmless against any losses or damages arising from Merchant's failure to comply with security procedures mid any tosses or damages arising from or related to Merchant's acts or omissions that result in a branch of data security, including but not limited to Merchant's noti - participation in any breach security program Processor may offer. 5.10 Federal regulations enacted pursuant to the USA PATRIOT Act and other applicable laws require financial institutions with which the Processor has relationships to verify the identity of every person who seeks to open an account with it financial institution. As a result of Merchant's status as an account holder with Merchant Bank, Merchant shall provide documentary verification of Merchant's identity, such as a driver's license or passport for an individual and comfort copy of organization documents for an entity in manner acceptable to Bank. Bank reserves the right to verify Merchant's identity through other non- documentary methods as Bank deems appropriate in its sole discretion. Bank may retain a copy of any document it obtains to verify Merchant's identity with the financial institution. C OPERATING RULES. 6.1 Merchant must comply with the Operating Rules, as the same may be amended Bonn time to time. The Operating Rules may change with little or no advance notice to Merchant and Merchant will be bound by all such changes. if Merchant objects to any change fn the Operating Rules, it must immediately stop accepting new Transactions for Cards governed by the change. The Operating Rules will govern in the event that there is any inconsistency between this Merchant Agreement and the Operating Rules However, nothing in this Merchant Agreement shall be remained to impose on Merchant a requirement (including a requirement under the Operating Rules) which is prohibited by mandatory provisions of applicable law (i,e., where the applicability of such provisions of law to this Merchant Agreement, and ot'the law's prohibition to the particular requirement which otherwise would be imposed on Merchant hereunder, cannot lawfully be waived by agreement), but the requirement hereunder shall be construed to continue in effect and to be imposed on Merchant in all respects and at all times to the fullest extent possible without violating the law's prohibition, with only those particular applications of the requirement which would violate the law's prohibition deemed severed from the provisions hereof 6.2 Operating Rules of the Debit Networks may differ among them with respect to the Transactions they allow. Bank, at its discretion, may require that lire most restrictive requirements of one Debit Network apply to all of Merchant's Orr -line Debit Card Transactions, regardless of Card type. 7. MERCHANT'S BUSINESS; OTHER PROCESSORS. 7.1 Compliance with Laws. Merchant will comply with all Requirements of Law and regulations, including but not limited to haws and regulations regarding anti -money laundering compliance, in completing Transactions, submitting them to Bank, performing its obligations under this Merchant Agreement, and otherwise conducting its business. 7.2 Change in Name or Business. Merchant will give Membant Bank and Processor at least thirty days' prior written notice before any change in Merchant's name or location, any change in ownership or management of Merchant's business, any sale, assignment, rental, lease or transfer of ownership of any location that accepts Cards, or any material change in information concerning Merchant' in the Merchant Application, and material change in the type or nature of the business carried out by Merchant or otherwise required to be provided to Bank. 7.3 Other Processors. To the extent permitted by applicable law, Merchant agrees that it will not participate in a Card Program with another financial institution or processor without Bank's written approval. 8. CREDIT RI; PORTS AND OTHER IN FORMATION, 8.1 Reports About Merchant. From time to time, Bank may obtain credit and other information on Merchant, owners and officers of Merchant, and any and all personal grammars of Merchant, from others (such as customers and suppliers of Merchant, lenders and credit reporting agencies), and furnish information on Merchant's relationship with Bank and Bank's experience with Merchant to others seeking the information. 8.2 Reports from Merchant. Merchant will provide Bank with updated business and Internet information concerning Merchant, including financial statements, tae returns, Page 3 of 7 UNIVMERAGMI'v 10.1017 25C -14 evidence of required licenses and other information and documents Bank may reasonably request from time to time. Merchant shall further provide Bank such information as it may request for the making of insurance claim, regulatory or other filings related to Merchant's activity pursuant to this Agreement. All material marked "confidential" which Bank receives from Merchant will be used only by Bank or Card Association in performing the Card Program services under this Merchant Agreement or related services find reporting. At any reasonable time, Bork, any Card Association or any other entity having carbon ty, ins the right to audit Merchant's records relating to this Merchant Agreement. Without limiting the generality of the foregoing, Merchant understands and agrees that if at the time of signing this Merchant Agreement Merchant is undergoing a forensic investigation, Merchant must notify Batik and fully cooperate with the Investigation unfit it is completed. 9. ASSIGNMENT; BANKRUPTCY. 9.1 Asaignment. This Merchant Agreement is binding upon the successors and assigns of Bank and Merchant. Merchant will not assign this Merchant Agreement to another entity without Bank's prior written consent and any purported assignment made without Bank's consent will be void. 9.2 Bankruptcy. (a) Merchant will notify Bank immediately if any bankruptcy, insolvency or similar petition is filed by or against Merchant. Merchant acknowledges that this Merchant Agreement constitutes an executory contract to extend credit or financial accommodations m defined in 1 I. II.S.C. §365(c)(2) and that the Merchant Agreement cannot be assumed or assigned in the event of bankruptcy. Merchant and Bank agree that in the event of Merchant's hankruptcy, Bank shall be entitled to suspend further performance under this Merchant Agreement. (b) Merchant acknowledges and agrees that in the event of a bankruptcy proceeding, Merchant must establish a Reserve Account or maintain a previously established and then current Reserve Account in amounts required by Bank and in accordance with any Reserve Account provision specified in this Merchant Agreement. Bank will have the right to setoff against the Reserve Account for any and all obligations which Merchant may owe Bank, without regard as to whether the obligations relate to Transactions initiated or created before or after the tiling of the bankruptcy petition, 10. AMENDMENTS; WAIVERS. 10.1 Amendments. Unless otherwise provided for in this Merchant Agreement, Bank may amend this Merchant Agreement at any time by providing Merchant will, fifteen days' prior notice by: (a) sending Merchant written notice of such amendment, or (b) posting such amendment to the Processor web site and providing Merchant with electronic notice as provided in Section 23. The amendment will become effective unless Bank receives Merchant's notice terminating this Merchant Agreement before the effective date. Bank . may amend this Merchant Agreement upon less than fifteen days prior notice if Bank reasonably determines immediate modification is required by Requirements of Law, Operating Rules or any adverse change in Merchant's financial condition. Amendments submitted by Merchant will bind Bank only if in writing and approved and signed by Back's authorized officer. 10.2 Waivers. Bank's failure to enforce this Merchant Agreement will not waive Bank's rights under this Merchant Agreement. Waivers ofany provision of this Merchant Agreement must be in writing and signed by Bank. A waiver in one instance will not apply to other occasions unless that intent is clear from the signed waiver. 11. TERlvl;'rER1NL NATIOM 11.1 Term(Renewal. The initial train of this Merchant Agreement shall be for the term of three years (the "Initial Tenn ") commencing on the date Bank processes the first Transaction for Merchant (including, a test Transaction) and, with processing of the first transaction, the Merchant accepts the services ot'Processor and agrees to be bound by this Merchant Agreement and signifies Bank's approval of this Merchant Agreement. At the expiration of the Initial Term, this Merchant Agreement will automatically renew for successive one year periods (each a `Renewal Tenn" and collectively with the Initial'1`erm the "Term ") unbr s a party provides the other parties with notice of its intent not to renew this Merchant Agreement at least ninety days prior to the expiration of the then current term. I1.2 Termination. (a) lamination without Cause. Merchant Bank or Processor or Merchant Bank's or Processor's designated representative may terminate this Merchant Agreement as to all Card types or individually specifics! Card types, without cause, upon thirty days advance written notice (b) Terminatit tin for .Cause by Bank. Merchant Bank or Processor or Merchant Bank's or Processor's designated representative may terminate this Merchant Agreement in its sole and absolute discretion, effective Immediately, upon written, electronic or oral notice, except as otherwise stated in this Merchant Agreement, to Merchant if Merchant Bank or Processor reasonably determines that any of the following conditions exists: (i) Merchant has violated any provision of this Merchant Agreement (it) There is a material adverse change in Merchant's financial condition, material change in Merchant's processing activity, processing activity inconsistent with the Merchant Application, or Merchant Bank or Processor determines in its sole discretion that Merchant's processing activity could result in a loss to Bank. (iii) A petition in bankruptcy has been tiled by or against Merchant, the Merchant is generally unable to pay its debts as they become due, a receiver, custodian, trustee, liquidator or similar ofiiefal is appointed for a substantial ponion of Merchant's business, there is a general assignment for the benefit creditors, or the business terminates. (iv) Any information which Merchant provided to Bank, including Merchant Application information, was false, incomplete or misleading when received, or has materially changed since Merchant provided such information (v) At any tune during the term of this Merchant Agreement, Merchant has had it monthly ndio of Chargebucks to Transactions exceeding one percent, or Chargeb:aks tare in excess of three percent army monthly dollar amount of['ransactions. (vt) There is an overdraft for three days or more in the Settlement Account, or overdrafts in the Settlement Account are otherwise excessive. (vii) Merchant or any of Merchant's officers or employees has been involved in processing Transactions with Bank or other parties arising front fraudulent or otherwise unauthorized transactions. (viii) Merchant is or will be unable or movilling to perform its obligations under this Merchant Agreement or any applicable laws. (ix) Merchant has failed to Puy Bank any amount when due. (x) Merchant has failed to promptly perform or discharge any obligation under this Merchant Agreement, the Settlement Account or the Reserve Account, (xi) Any of Merchant's representations or warranties made in connection with this Merchant Agreement was not true or accurate when given. (xii) Merchant has defaulted on any agreement it has with Bank. (xiii) Bank is served with legal process seeking to attach or garnish any of Merchant's funds or property in Bank's possession, and Merchant does not satisfy or appeal the legal process within fifteen days of the Bank being served. (xiv) The Operating Rules are amended in any way so that the continued existence of this Merchant Agreement would cause Bank to be in breach of such Operating Rules. (xv) Any Guaranty supporting Merchant's obligations is revoked, withdrawn or terminated or altered in any way, (xvi) Any governmental entity initiates proceedings against Merchant, or Bank reasonably believes that a governmental entity may do so. (xvii) If any, circumstances arise regarding Merchant or its business that create harm or loss of goodwill to any Card Association. (c) Tenninntionftn CamgbyMerchant. Merchant may terminate this Merchant Agreement in the event of a material breach of the terms of this Merchant Agreement by Bank, provided Merchant gives Bank written notice of any alleged breach and such breach remains uncured for a period of thirty days following receipt ofwrown notice by the Bonk. (d) PJa„mage_(or Early Terminal on. (i) Bank and Merchant acknowledge and agree that in addition to all other remedies available to Bank under this Merchant Agreement arm otherwise available in law or equity, if this Merchant Agreement is terminated prior to the expiration of the applicable Tern of the Merchant Agreement for any reason other than for a material, uncured breach by Bank, Merchant agrees to pay Bank damages (the "Damages ") determined by adding an account closure fair as follows: (1) $250 for Merchants with less than twelve months remaining from the date of termination to the end of the then current Term, or; (2) $500 for Merchants with more than twelve months remaining, or such portion or the foregoing as may be permitted by applicable law. (it) Merchant agrees that such Damages shall also be due to Bank if Merchant discontinues submitting Transactions for processing during the Tenn for a period of lonely (90) consecutive days, and is not designated on the Merchant Application, or by notice to Bank, as a seasonal merchant or as otherwise agreed to by Bank. (iii) Merchant acknowledges and agrees that the Damages are not a penalty but rather are a reasonable computation of the financial harm caused by the termination oftltis Merchant Agreement by the Merchant. (e) Merchant Bank's or Processor's rights of termination under this Merchant Agreement are cumulative, A specific right of termination shall not limit any other right of Bank to terminate this Merchant Agreement expressed elsewhere in this Merchant Agreement. Notice of termination may be given orally or In writing, if given orally, shall be confirmed in writing, except as otherwise stated in this Merchant Agreement. (f) Upon termination, Merchant's rights to complete 'transactions and submit them to Bank, and to use Transaction form or formats, promotional material and any other items provided by Bank, will cease. Termination of this Merchant Agreement will not terminae the rights and obligations of Merchant and Bank relating to acts or emissions occurring before termination, including for example, airy Processing Fees or other service fees awed to Bank, cry Transactions processed for Merchant by Bank (whether before or after termination), Merchant's Chargeback and indemnity obligations, and the Security Interest granted. to Bank in this Merchant Agreement. (g) It is understood that a file for terminated merchants referred to as "6[ATCB" is maintained by Card Associations containing the names of any business (and its principals) which have been terminated for certain reasons, including fraud, depositing excessive counterfeit paper, excessive unauthorized transactions, depositing paper for others (laundering), bankruptcy or branch of this Merchant Agreement Merchant acknowledges that Merebant Bank or Processor is required to report Merchant to the MATCH (and/or on [he Consortium Merchant Negative File (the CMNF) published by Discovere Network) if this Merchant Agreement is terminated for any of the foregoing reasons or other reasons as may be modified by the Card Associations. Merchant agrees and consents to such meaning in the event of the termination of this Merchant Agreement for any of the foregoing reasons. (6) Sections 2.3, 3, 4, 5, 6, 7, 9.1, 10.2, 11, 12, 13, 14, 15, 16.3, 16.4 17, 18, 19, 20 and 22 will survive termination of this Merchant Agreement. page 4 of t 25C -15 UNIVMERAGMT v 10.1013 12.SE'IT'LEMENT ACCOUNT. 12.1 Settlement Acen int Required. Merchant must maintain a Settlement Account in Merchant's name in satisfactory condition at a depository institution under arrangements acceptable to Bank. The Settlement Account will be subject to the provisions Or Section 14 of this Merchant Agreement. 12.2 Minimum Balance. Merchant agrees to maintain a minimum balance Orlando in the Settlement Account as Bank may specify to Merchant in writing from time to time. 12.3 Provisional Credits. Subject to the terms and conditions of this Merchant Agreement, Bank agrees to provisionally credit Merchant for each Transaction that Bank nccepts from Merchant. Merchant agrees that Bank may charge the Settlement Account for the amount of any Transaction processed render this Merchant Agreement, or any agreement Bank may have with any Merchant Affiliate, that results in a Chargeback, or for any Credit Transaction Receipt or otter reimbursement or Processing Pees to which Bank may be waited 12.4 Audits and Adjustments. Merchant agrees that Bank may audit all Transaction calculations and that Bank shall have the right, without notice, to make withdrawals, deposits, or other adjustments to or from the Settlement Account for any deficiencies or overages. 125 Errors and Disputes. Bank shall presume that any amounts the Bank pays to or debits from Merchant are correct unless Merchant disputes these by sending Bank written notice within thirty days of the date of the applicable statement containing any disputed payments or debits. 12.6 POS Equipment. if Merchant chooses to rent or lease POS Equipment from Processor or utilizes software provided by Processor for use in processing Transactions, Merchant agrees to pay Processor: (a) a pre - determined monthly rental fee; (b) any initial upfront costs as required; and (c) all applicable taxes rot such POS Equipment or software utilization. 12.7 Settlement Account Closure. If the Settlement Account is closed, Bank or its designated representative may terminate this Merchant Agreement, effective immediately, upon written or oral notice (with written confirmation in the event of oral notice) unless Merchant opens another Settlement Account acceptable to Bank. Merchant may change the Settlement Account upon prior written approval by Bank, which approval will not be unreasonably widtheld. 12.8 ACII Authorization. Merchant authorizes Bank or its agents or designated representatives to butiate debit and credit entries and adjustments to the Settlement Account or the Reserve Account (described in Section 13 of this Merchant Agreement) through the ACH settlement process for amounts due under this Merchant Agreement. This authorization will remain in full fares and effect unit] termination of the Merchant Agreement and the full and final payment of of obligations of Merchant due under this Merchant Agreement. Merchant acknowledges and agrees that it has been provided with the ACH Terms and Conditions located at www .transfirstcom /doeuments.htnl and agrees to be bound by all applicable terms and provisions of the ACH 'Perris and Conditions, ACH Addendum, nil other ACH Rules and any other applicable association or rework rules and regulations, in effect from time to time. Merchant acknowledges and agrees that Bank will not be liable for any delays in receipt of finds, any failure by Merchant to receive funds, or errors fn debit or credit entries coastal by Merchant, or third panics, including but not limited to any Card Association or any financial irradiation. 13. ADDITIONAL COLLATERAL SECURITY; RESERVE ACCOUNT. As a condition for providing Card Program services, Merchant may be required to provide additional collateral security for Merchant's obligations hereunder, which additional collateral security stall be of a kind, and in amounts, satisfactory to Brunk in Bank's sole discretion, and which shall be in addition to all other collateral provided for in Section 14 hereof. Such additional collateral security may include, fur example, (a) a letter of credit, if issued in an amount and on terms acceptable to Bank by a letter of credit turning bank acceptable to Bank, or (b) the pledge to Bank of a certificate of deposit owned by Merchant in amount satisfactory to Bank and provided all agreements (including agreements of third patties) in form and substance satisfactory to Bank and all (flings and/or other actions necessary in order to perfect in Bank a continuing first priority security interest therein on terms acceptable to Bank, we entered into, made and /or taken as the case may be. Bank may require that all or any part of the additional collateral take the form of a Reserve Account, established as hereinafter set forth in this Section 13, at any time when (i) this Merchant Agreement, or the provision of Card Program services hereunder, shall have terminated for any reason or any party hereto shall have given notice of termination thereof, or (if) them shall have occurred an event which entitles Bank to terminate this Merchant Agreement or the provision of Card Program services hereunder or which, with the giving of notice and/or the passage of time would entitle Bank to terminate this Merchant Agreement or the provision of Card Program services hereunder, and Merchant has not provided alternative additional collateral security of a kind, and in amounts, satisfactory to Bank as set forth above In this Section, or (iii) nether (i) nor (it) above in this Section is applicable, but Bank has determined that additional collateral security is required, has requested that Merchant provide same, and Merchant has failed to provide alternative additional collateral security of a kind, and in amounts satisfactory to Bank as set forth above in this Section. Any Reserve Account that is established shall be subject to the terms and conditions ofSeolum 14 and all other terms and conditions ofthis Agreement relating to the "Reserve Account ". Whenever Bank requires that additional collateral security take the form of a Reserve Account, the following provisions of this Section 13 shall apply: 13.1 Reserve During Term of Merchant Agreement. (a) Merchant may be required to deposit, of Merchant Bank may deposit by deducting from any payment due to Merchant or from any funds in the Settlement Account or any other deposit account of Merchant, into an account maintained by Merchant Bank (m at another approved depository institution) (the "Reserve Account "), initially or at any time in the future as requested by Bank, sums sufficient to satisfy Merchant's current and/or future obligations as determined by Bank in Its sole and absolute discretion. (b) The Reserve Account will be separate from the Settlement Account. Merchant shall have no right of withdrawal from the Reserve Account. The Reserve Account shall be under rite sole control of Merchant Bank, and Processor shall not have access to or hold funds in the Reserve Account. Any and all earnings from deposits or file Merchant to the Reserve Account shall be the sole property of the Bank. 13.2 Reserve Account Deposits. (a) At any time in Bank's sole and absolute discretion, Bank may (i) designate the minimum balance required to be deposited in the Reserve Account, (ii) require that the amount on deposit in the Reserve Account be increased, (iii) require that the Merchant deposit, or Merchant Bank may deposit for Merchant into the Reserve Account a percentage of, or a fixed amount fain each Transaction processed, or (iv) otherwise determine the amount to be deposited in the Reserve Account. Bank at its sole and absolute discretion may require that each month Merchant deposit, or Merchant Bank may deposit by deducting from any payment due to Merchant or from any funds in the Settlement Account or any other deposit account of Merchant sums into the Reserve Account no later than the twentieth day of the month. Bank shall notify the Merchant as to the amount of the funds to be deposited each month (b) Merchant acknowledges and agrees that the Reserve Account may contain both funds deposited by the Merchant and funds of other merchants of the Bank. 133 Deductions from Reserve Account. If funds are not available is the Settlement Account, Bank without prior notice to Merchant may deduct from the Reserve Account any obligation of Merchant to Bank trader this Merchant Agreement, including all Processing Fees, Chmgebtmks, Credit Transaction Receipts, Damages, and any and all additional fees, and sums sufficient to reimburse Bank for the amount of any fines, penalty amounts and charges due the Card Associations. 13.4 Replenishment of Reserve Account Deficiencies. Whenever the balance in the Reserve Account is less than the minimum balance required, or is otherwise deficient, Merchant Bank Wray, without prior notice, deposit the deficiency into the Reserve Account by reducing any payment to Merchant required by this Merchant Agreement or deduct the deficiency from the Settlement Account or any other deposit account of Merchant with another depository institution (including accounts of general partners if Merchant is a partnership) and deposit it into the Reserve Account. Merchant authorizes deductions from its accounts by ACI I entry, sight draft, preauthorized check, reverse wire, or otherwise as Bank deems appropriate under the circumstances. In addition, Merchant will deposit any deficiency into the Reserve Account within one Business Day after receiving Bank's oral or written request. Without limiting Bank's remedies, Merchant's failure to deposit any deficiency on time will permit Bank, without advance notice, to suspend or cease Processing additional 'transaction Receipts and Credit Transaction Receipts. Bank will give Merchant written notice orally suspension or cessation of processing. 13.5 Additions to Reserve Account. If Bank has reason to believe that Merchant may be liable to customers or to Bank for Chargebacks exceeding the balance in the Reserve Account, Merchant Bank may: (a), immediately place in the Reserve Account payments due to Merchant and/or stop processing transactions for Merchant until such time as the extent of Merchant's obligations to Bank, or Merchant's liability for Chargebacks, or Merchant's liability to customes are known, and Bank no longer deems itself insecure, and/or (b) demand from Merchant an amount that in Bank's judgment is needed to ensure payment of Merchant's obligations and liabilities. Merchant's failure to pay any amount will permit Merchant Bank or Processor or its designated representative to terminate this Mercham Agreement immediately without advance notice. 13.6 Reserve Account After Merchant Agreement Terminates. Merchant Bank any continue to hold or deposit funds in the Reserve Account after termination of this Mercham Agreement, regardless of whether nomination is by Merchant or Bank Upon termination of the Merchant Agreement by Merchant or Bank, Bank may retain sufficient funds to satisfy any and all Processing Pees, Chargebacks, Credit Transaction Receipts, Damages, and any and all additional fees, and sums sufficient to reimburse Bank for the amount of any fines, penalty amounts and charges due the Card Associations. If no fiends have been deposited into the Reserve Account before termination, Bank, at Bank's option, may notify Merchant to deposit funds into the Reserve Account upon termination of this Merchant Agreement. All provisions which apply to a pre- termination Reserve Account will apply after termination, including replenishment of deficiencies. The funds will be held by Bank or its designated agent for a period of not less than one hundred eighty days from the date of the last Transaction processed under the Merchant Agreement, plus the period of any warranty, guarantee, and/or return policy an goods and/or services sold, Bank will return the balance in the Reserve Account to Merchant after Bonk reasonably determines that the risk of Chargebacks and other processing Fees has ended and after deducting all amounts that Merchant owes to Bank under this Merchant Agreement or any other agreement. 14. SECU RITY INTEREST. 14.1 Merchant's Grant of Security Interest. (a) To secure Merchant's performance of its obligations under this Merchant Agreement, and any other agreement with Bank, Merchant grants Bank a security interest in each Transaction and its proceeds, the Settlement Account, the Reserve Account and any other deposit account of Merchant with a financial institution, whether now existing or established in the future, and in the proceeds oral[ these accounts, any fonds due Merchant from Bank and any of Merchant's property held by Bank. Bank may enforce there security interests without notice or demand The security interests granted under this Merchant Agreement will continue after this Merchant Agreement terminates, until Mercham satisfies all its obligations to Bank Page 5 of 25C -16 UNnIVMERAGMT 00, 1013 (b) Furthermore, and with respect to any security interests granted Intent, Bank will have all rights afforded under the Uniform Commercial Code, as the same may, from tune to lime, be in effect in the State of Colorado; provided, however, in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of the security interests granted herein is governed by the Uniform Commercial Code a in effect in a jurisdiction other than the State of Colorado, then Bank will have all rights afforded mndla the Uniform Commercial Code as in effect from Hine to time in such other jurisdiction for purposes of tire provisions relating to such attachment, perfection or priority of the security interests, as well as any other applicable law. 14.2 Perfection of Security Interest. Upon request of Bank, Merchant will execute one or more financing statements or other documents to evidence the security interests granted to Bank under this Section 14. Merchant shall cooperate with Bank in obtaining any control agreement or similar agreement with a depository bank necessary to perfect the security interests granted herein. to addition, Merchant agrees that its signature on the Merchant Application will be considered Merchant's signature agreeing an any control agreement as defined in Article 9 of the Uniform Commercial Code among Merchant, Bank and any other financial institution under which Bank, Merchant and any other financial institution agree to the disposition of funds in the Settlement Account, tile Reserve Account or any other deposit account without further consent by Merchant. 15, CUSTOMER CLAIMS, To the extent that Bank has paid or may pay a Chargetrack or Credit Transaction Receipt, Merchant will be obligated to reimburse Bank for any sons Bank pays. If Merchant does not reimburse Bank, Bank will have all of the rights and remedies or Cardholders, including the Cardholders' rights under I I U.S.C. §507(a)(6). Bank may assert any claim on behalf of a Cardholder individually or on behalf of all Cardholders as a class. 16. PROCESSING FEES. lit Fee Schedule. Merchant will pay Processing Fees in the amount specified in the Fee Schedule attached to the Merchant Application or as otherwise provided for in this Merchant Agreement or an Addendum thereto. Bank may increase the processing Fees, including, without limitation, introducing new products or services, by giving Merchant fifteen days advance written notice effective for Transactions submitted on and after the effective date of the change. 16.2 Card Association Actions. Bank will not be required to provide the Merchant with fifteen days' notice of an increase in Processing Fees in the event that any Card Association, or any otherentily having such authority increases the Processing Fees and the effective date for implementation of the increase in the Processing Fees is less than fifteen days, In such cases, the Bank shall make reasonable efforts including, but not limited to, written correspondence, notification on statements, website notification, email, fax and direct contact via the telephone or otherwise, to provide reasonable notification to Merchant. However, failure to provide advance notice Of the increase in Processing Fees will not affect Merchant's obligation to pay the increased Processing Fees. Tire increasers) in Processing Fees shall be effective on the date specified by Bank. 163 Government and Regulatory Actions, Bank will not be required to provide Merchant with fifteen days' notice for any increase in Processing Fees resulting front any fine, charge, fee or cost incurred in connection with any suite, federal or other regulatory action, change in laws or regulations or escheanment of Merchant's funds. Bank shall make reasonable efforts including, but not limited to, written correspondence, notification on statements, website notification, email, fax and direct contact via the telephone or otherwise to provide reasonable notification to Merchant. However, failure to provide advance notice of the increase in Processing Fees as a result of any government or other regulatory actions will not affect Merchant's Obligation to pay the increased Processing Fees. The increase(s) in the Processing Fees shall be effective on the date specified by Bank. 16A Payment, Processing Fees and other service charges owed by Merchant to Bank may be deducted by Merchant Bank from amounts due Merchant, or from the Settlement Account or from the Reserve Account. Merchant will pay the amounts due by the next Business Day it'sufflcient finds are not available in the Settlement Account 17. INDEMNIFICATION; LIMI'T'ATION OF LIABILITY; WARRANTY. 17.1 Indemnification, Merchant agrees to indemnify Bank, including their respective officers, directors, employees, and agents against and to hold them harndess from any and all claims and demands of any party arising from or based upon any act or omission of Merchant, Merchant's employces, Merchant's designated representatives or agents, Merchant Services, or Merchant's Agents) in connection with or arising out of this Merchant Agreement, the duties to be performed by Memhant pursuant to this Merchant Agreement, any Transactions which Merchant submits to Bank, or Merchant's violation of the Operating Rules or any Requirements of Law. In the event that Bank shall be made a party to any litigation, proceeding, arbitration, bankruptcy proceeding, or other legal process (collectively "Actions ") commenced by any third party, Merchant shall protect and hold Bank harmless from and with respect to the Actions and shall pay all costs, expenses, and allomey's fees incurred or paid in connection with the Action, together with any judgments rendered. Merchant shall indemnify, defend, and hold harmless Bank for any hacking, fi filrmtion, or compromise of Merchant's systems or the system of Merchant, Merchant Services or Merchant's Agmn(a), designated representatives, ar other agents_ 171 Limitation of Liability. Bank will not accept responsibility for errors, acts, or failure to act by others, including but not limited to, Merchant Servicer, Agents, third party suppliers of software, equipment or services; or, banks, communication common carriers, data processors or clearinghouses through which transactions may be passed, originated and/or authorized. Bank will not be responsible for any loss, liability or delay caused by fires, earthquakes, war, civil disturbances, power surges or failures, acts of governments, acts of terrorism, labor disputes, failures in communication networks, legal constraints or other events beyond the control of Bank. Bank undertakes no duties to Merchant other than the duties expressly provided for in this Merchant Agreement, and any and all other or additional duties that may he imposed open Bank in law or equity are hereby irrevocably waived and released to the maximum extent permitted by law. In any event, Bank's cumulative liability to Merchant, whether arising in contract, tort (including, without limitation, negligence and strict liability) or otherwise, shall not exceed the lesser of $10,000 or, an amount equal to the aggregate of monthly net Processing Fees paid by Merchant in the three month period prior to the month that the incident giving rise to liability creation. IN NO EVENT SHALL. BANK BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR ANY INTERRUP'T'ION Olt LOSS OF USE, DATA, BUSINESS OR PROFITS, WHETHER OR NOT SUCH LOSS OR DAMAGES WERE FORESEEABLE OR BANK. WAS ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF WHETHER ANY LIMITED REMEDY HEREIN FAILS OF ITS ESSENTIAL. PURPOSE, BANK SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCIL)NTABILIIY OR FITNESS FOR A PARTICULAR PURPOSE OR NON - INFRINGEMENT OF AN) INTELLECTUAL PROPERTY RIGHT WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER. WIIEIOUT LIMITING THE GENERALITY OF THE FOREGOING, BANK DOES NOT GUARANTEE OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROH-FREE. 18, NOTICES. Each notice required by this Merchant Agreement will be in writing (hard copy or electronic), except as otherwise stated in this Merchant Agreement, and will be effective when delivered, (a) to Merchant Bonk at the address designated on the Merchant Application, and the return address on the Merchant's Card processing statements, (b) to Processor at the address designated on the Merchant Application and (c) to Merchant at Merchant's address to which Bank mails Merchant's statements or at the electronic mail address provided by Merchant in the Merchant Application, or at such other address as any party may provide by written notice to the other parties. Any address Merchant designates may also be the address to which Bank mails Merchant's statements. Delivery by facsimile transmission or electronic mail will be considered effective when the sender receives electronic confirmation of the transmission 19. COLORADO LAW; JURISDICTION; VENUE. Merchant's offer to enter into this Merchant Agreement is made in Boulder, Colorado; this Merchant Agreement shall be performed by Merchant in Boulder, Colorado and governed by Colorado law, excluding its conflict of laws rules. Merchant and Guarantor agree to bring any claim or action relating to this Merchant Agreement in binding arbitration as set forth in Section 202 below Any matters not otherwise subject to arbitration (such as, by way of example only, imuncl'ive reclier or claims to enforce an arbitration award), shall be brought in the state or federal courts located in Boulder County, Colorado. All parties irrevocably and unconditionally submit m thejurisdictlon of such courts with respect to any such action. In the event that Bank is required to resolve a dispute with Merchant that requires any action under this provision, Merchant hereby agrees and consents to receive service of process by certified mail, 20.ATTORNEY FEES; ARBITRATION. 201 Attorney Fees. Merchant and/or Guarantor will be liable for and will indemnify and reimburse Bank for all attorneys' fees and other costs and expenses paid or incurred by Bank in the enforcement of this Merchant Agreement or in matters relating to this Merchant Agreement, or arising from any breach by Merchant of this Merchant Agreement, or any other wrongdoing by Merchant or Guarantor. [n the event Bank must collect may amounts due from Merchant to Bank, Merchant will reimburse Bank for all fees and expenses incurred in such collection, plus reasonable administrative fees. 201 Arbitration. Merchant, Bank and any Guarantor will settle any dispute or controversy concerning or relating to this Merchant Agreement through binding arbitration before a single arbitrator, held of Denver or Boulder, Colorado in accordance with the provisions of the Federal Arbitration Act or any successor statute. In interpreting the Merchant Agreement, which the arbitrator must do, the arbitrator shall be limited from revising, altering, or amending any tern of the Merchant Agreement without the express written consent of the Back and the Merchant Claims hereunder will be arbitrated on an individual basis and, as such, the arbitrator's authority is limited to claims between the Bank and the Merchant (rand any Guarantor) alone. Merchant and Bank expressly agree that the arbitrator may not consolidate orjoin more than one person's or party's claims, and may not otherwise preside over any form of a consolidated or class proceeding or over claims brought in a purported representative capacity on behalf oftlre general public, other merchants or other persons or entities similarly started. Furthermore, the arbitrator may award relief (including monetary, injunctive and declaratory relief) only in favor of the individual party seeking relief air<[ only to the extent necessary to provide relief necessitated by that party's Individual claim(s). 2LFINAL AGREEMENT; EFFECTIVE DATE. This Merchant Agreement is the complete and final agreement between Merchant and Bank for the Card Program services covered by this Merchant Agreement and supersedes all prior or contemporaneous negotiations, stipulations or agreements. If any provision of this Merchant Agreement is invalid or unenforceable, the other provisions remain effective This Merchant Agreement becomes effective on the date Bank processes the first T1'antection for Merchant (including a test Transaction). 22. CON "IINUING GUARANTY. Page 6 nf7 25C -17 UNIVMERAGMT v10.1013 22.1 As a primary inducement to Bank to enter into this Merchuu Agreement, and to approve the Merchant Application of Merchant, the Gumantor(s), individually and severally, who signed on the Guarantor signature Ime(s) on the Merchant Application, agree to be bound by all terms and provisions of this Merchant Agreement to the same extent and in the same manner as Merchant, and unconditionally and irrevocably, personally guarantee the continuing fill and faithful performance and payment by Merchant of each and all of Merchant's duties and obligations to Bank under this Merchant Agreement or any other agreement currently in effect or in the future entered into between Merchant or its principals and Bank, as such agreements now exist or are amended from time to time, with or without notice to Guaranmr(s). 22.2 Merchant and Guammor(s) furdier agree to be bound by the terms and provisions of any Merchant Card ['recessing Agreement between Bank and any Affiliated- merchant, regardless of whether such agreement currently exists or is executed, amended or supplement at some future date. Merchant and Gumaalor(s) unconditionally and irrevocably guarantee the full payment and performance of each and all duties and obligations owed to Bank by Merchant Affiliate pursuant to any Merchant Card processing Agreement. 'fire previsions of Section 223 apply to the guarantee by Merchant and Guarantor(s) of the Merchant Affiliate's obligations to Bank under any Merchant Card Processing Agreement. 223 Guarantor(s) understands that Bank, without notice to Guarantors), may from time to time renew or extend the Merchant Agreement, modify rates, limits, charges and fees, or modify the amount or type of services provided to Merchant all of which may increase the Gasometer's obligations under this Guaranty. Guarantors) further understands that Bank may proceed directly against Guaranror(s) without first exhausting Bank's remedies against the Merchant, arty other person or entity responsible to Bank or any security held by Bank. This Guaranty is a continuing guaranty and will not be discharged or affected by the release or discharge of Merchant or the death of the Guararam(s). This Guaranty will bind all heirs, administrators, and representatives of the Guarantors) and may be enforced by or for the benefit of any successor of Bank. To the fullest extent permissible under applicable law, Guarantor(s) waives any and all rights of submgation, raimbursoment or indemnity derived from Merchant, all other rights and defenses available to Merchant, and all other rights and defenses available to Guamar xa). Page 1 of 25C -18 UNNMFRAGhfF v10,1013 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: AMENDMENT TO AGREEMENT FOR JANITORIAL SERVICE CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: .0 R ❑ 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 amendment to the agreement with Bell Building Maintenance, Inc. for janitorial services at: City Hall, Bridge, Ross Annex, Corporation Yard Buildings: A, J, Stores and PW Admin, Santa Ana Police Athletic Activity League facility, and Centennial Training Center in an annual amount not to exceed $194,040, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The Finance and Management Services Agency Building Maintenance Division oversees City facilities in order to maintain clean, safe, and properly functioning buildings utilized by City employee's and the public. In addition, Janitorial services for City Hall, Bridge, Ross Annex and the Corporate Yard are serviced through a hybrid approach of City staff and Bell Building Maintenance, Inc. janitorial service contract employees. On August 3, 2009, the City Council authorized an agreement with Bell Building Maintenance, Inc., for a two year period, with provisions for three one -year renewals. This amendment will approve service through June 30, 2014, and provide for a reconciliation of all final expenditures while staff prepares a new request for janitorial services. The agreement includes staffing costs and all supplies required for the provision of service. Bell Building Maintenance Inc. has performed satisfactorily and has agreed to renew the agreement with no increase in pricing. Staff recommends the third and final renewal to this agreement. 25D -1 Amendment to Agreement for Janitorial Service March 18, 2014 Page 2 FISCAL IMPACT Funds are available in the Fin /Mgmt. Custodial Services acct (no. 07310101- 62310) for $194,040. APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance and Management Services Agency 25D -2 FOURTH AMENDMENT TO AGREEMENT THIS FOURTH AMENDMENT TO AGREEMENT is entered into on March 4, 2014, by and between Bell Building Maintenance, Inc., a California corporation ( "Contractor ") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ( "City "). RECITALS: A. The parties entered into that certain Agreement A- 2009 -113, dated August 3, 2009, (hereinafter "said Agreement ") by which Contractor has provided janitorial maintenance services at Santa Ana City Hall, Ross Annex and Corporate Yard, B. By Second Amendment to Agreement dated January 25, 2012, the parties amended the Scope of Services to reflect fewer days of service, and included additional floor space at City Hall to be cleaned by Contractor on the reduced service scbedule. C. In accordance with the terms and conditions of said Agreement, the parties wish to exercise the third option to extend, and add compensation to pay for services during the extended term. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this Fourth Amendment to Agreement, the parties agree as follows: 1. Contractor shall continue to provide janitorial maintenance services for City Hall, Ross Annex, Corporate Yard, Police Department Substation - McFadden Learning Center, and the Centennial Training Facility, as set forth in said Agreement. 2, Section 2,a., COMPENSATION, shall be atnended to provide that (luring the extended. term, City wilt pay, and Contractor will accept as total payment for its services, the rates and charges identified in Exhibit A -1, attached hereto and incorporated by this reference. The total sum to be expended for janitorial services and supplies pursuant to this Amendment shall not exceed $182,040, plus a twelve thousand dollar ($12,000.00) contingency for unanticipated services. 'The total amount to be expended during the extended one -year term of said Agreement shall not exceed $194,040.00. 3. Section 3, TERM, shall be deleted in its entirety and replaced with the following: "The term of this Agreement shall commence on September 1, 2009, and terminate on June 30, 2014, unless terminated earlier in accordance with Section 12, below, All services provided since July 1, 2013, shall be included within the Scope of Services for the third extension period from July 1, 2013 through June 30, 2014." 4. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. 25D -3 IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amendment to Agreement on the date and year first written above. ATTEST: MARIA D.IIUIZAR Cleric of the Colmcil APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney BY. Sh 40cly sistant City Attorney CITY OF SANTA ANA DAVID CAVAZOS City Manager BELL BUILDING MAINTENANCE, INC. Name: Title: 25D -4 EXHIBIT A -1 COST PROPOSAL July 1, 2013 through June 30, 2014 City Hall (Restrooms only) City Hall (4th, 5th, and 6th floor) Ross Annex Corporate hard (Admin) Corporate yard (Bldg J) Coproate Yard (Bldg A) Police Westend Substation (McFadden) Centennial Training Center 3,600.00 1,950.00 4,948.00 2,543.00 1,039.00 405.00 205.00 480.00 25D -5 4 days /week 4 days /week 4 days /week 4 days /week 4 days /week 4 days /week 3 days /week 3 days /week 25D -6 low whMe, CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: AGREEMENT WITH SYSTEM INNOVATORS INCORPORATED FOR INOVAH COMPUTERIZED CASHIERING SYSTEM MAINTENANCE CITY MA AGER 1:7x41+1 IT, I�14k,Ig4 7_[ l M0 CLERK OF COUNCIL USE ONLY: FAIL %ICZfDl;I W ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement with System Innovators, a division of Harris Computer Corporation for annual maintenance and programming in an amount aggregate limit not to exceed $35,000 annually for a three year term for total contract amount of $105,000 extending through March 2017, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The Finance and Management Services Agency; Parks, Recreation and Community Services Agency; and the Police Department utilize System Innovators' cashiering software and hardware to process the receipt of City revenues. This includes payments for municipal utility services bills, business license tax, hotel visitors' tax, parking citations, and all other payments processed throughout City facilities including the payment kiosk. System Innovators' iNovah cashiering system was approved and implemented in 2001 and is fully integrated into all City payment systems. Furthermore, through iNovah's proprietary system, the City has implemented an automated payment process resulting in on -going operational savings. In May of 2013, the Treasury Division installed a payment kiosk to enhance customer payment experience and provide options for our patrons during non- business hours and peak demand times. The kiosk is connected to various payment programs through the iNovah cashiering system which automatically updates account and payment information. A component of the iNovah cashiering system is a provision for annual maintenance and software updates. System Innovators and its iNovah cashiering system have performed satisfactory. As such, staff recommends continuation of the existing cashiering system and approval of annual software maintenance and updates. 25E -1 AGREEMENT FOR SYSTEM INNOVATORS SOFTWARE AND MAINTENANCE March 18, 2014 Page 2 FISCAL IMPACT Funds in the amount of $35,000 are budgeted and available in the Treasury and Customer Services account (no. 01110130 - 62300). Francisco Gutierrez �- Executive Director Finance & Management Services Agency Exhibit 1 Software Support and Maintenance Agreement 25E -2 SOFTWARE SUPPORT AND MAINTENANCE AGREEMENT SYSTEM INNOVATORS, a Division of N. HARRIS COMPUTE, R CORPORATION (SYSTEM INNOVATORS) and — CITY OF SANTA ANA Billing Office: Division Office: N. Harris Computer Corp, Inc. System Innovators I Antares Drive, Suite 400 10550 Deerwood Fark Blvd, Suite 700 OTTAWA, ONTARIO Jacksonville, Florida USA IaE 8C4 32256 25E -3 SOI FWARE SUPPORT AND MAINTENANCE AGREEMENT THIS AGREEMENT made as of the day of , 20 BETWEEN: SYSTEM INNOVATORS, A DIVISION OF N. HARRIS COMPUTER CORPORATION ( "Consultant ") . and - CITY OF SANTA APIA, a charter city and municipal corporation( "Organization ") RECITALS 1. The Consultant owns the Software (as defined herein); 1 The Organization wishes to enter into a support and maintenance contract for the Software; The Consultant wishes to provide support and maintenance services to the Organization, all upon the terms and conditions set out in this Agreement. NOW THEREFORE, in consideration of the mutual covenants set out in this Agreement and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties agree as follows: ARTICLE I INTERPRETATION Ll Definitions Throughout this Agreement, except as otherwise expressly provided, the following words and expressions shall have the following meanings: (a) "Agreement ", 0°this Agreement", Nbe Agreement ", "hereof ", "bereln ", "hereto ", "hereby ", "hereunder" and sindlar expressions mean this Software Support and Maintenance Agreement, including all of its Exhibits,Schedules and all instruments supplementing, amending or confirming this Agreement. All references to "Articles" or "Sections" mean and refer to the specified Article or Section of this Agreement. (b) "Change Order" means any written documentation between the Organization and Consultant evidencing their agreement to change particular aspects of this Agreement. 25E -4 (c) "Designated Computer System" shall mean the Organization's platform and operating system environment which is operating the Software. (d) "Required Programs" shall mean the programs provided by the organization described in Schedule B, attached hereto and incorporated herein. (e) "Source Code" of the Software means the Software written in programming languages, including all comments and procedural code, such as job control . language statements, in a form intelligible to trained programmers and capable of being translated into object code for operation on computer equipment through assembly or compiling, and accompanied by documentation, including flow charts, schematics, statements of principles of operations, and architecture standards, describing the data flows, data structures, and control logic of the Software in sufficient detail to enable a trained programmer through study of such documentation to maintain and/or modify the Software without undue experimentation. (f) "License" means the non - exclusive, non - transferable license granted to the Organization to configure and install the Software on the Organization's server computer to enable users to access and use the Software, (g) "Software" means the Software for which the Consultant shall provide maintenance and support services under this Agreement. The Software is identified as covered software set forth in Schedule A to this Agreemen, attached hereto and incorporated herein.. 1.2 Thane of the Essence Time shall be of the essence in and of this Agreement and every part hereof. Any extension, waiver or variation of any provision of this Agreement shall not be deemed to affect this provision and there shall be no implied waiver of this provision. 1.3 Currenay Unless otherwise specified, all references to amounts of money in this Agreement refer to U,S. currency, 1.4 headings The descriptive headings preceding Articles and Sections of this Agreement are inserted solely for convenience of reference and are not intended as complete or accurate descriptions of the content of such Articles or Sections. The division of this Agreement into Articles and Sections shall not affect the interpretation of this Agreement. 25E -5 1,5 Plurals and Gender The use of words in the singular or plural, or referring to a particular gender, shall not limit the scope or exclude the application of any provision of this Agreement to such persons or circumstances as the context otherwise permits. 1.6 Schedules The Exhibit and Schedules described below and appended to this Agreement shall be deemed to be integral parts of this Agreement. Exhibit 1 - Standard Support. and Maintenance Services Standard Guidelines Schedule "A" - Description of Supported Software Schedule "B" - Fee Structure and Payment Schedule 25E -6 ARTICLE II • F93Z _ Sk _ t< c_► 2.1 Subject to the terms and conditions of this Agreement, Consultant shall provide support and maintenance services wbich include revisions, updates and enhancements to the Software and related materials under the Agreement. 2.2 Subject to the terms and conditions of this Agreement, Consultant shall provide software support via telephone and electronic mail consistent with the hours of operation, all as described in Exhibit 1 hereto and in effect as of the date hereof, as such services may, at the discretion of Consultant, be modified or supplemented from time to time (provided that any changes generally apply to all licensees of Consultant). To enable Consultant to provide effective support, the Organization will establish auto remote access based on VPN or equivalent remote access procedures compatible with Consultant's practices. 2.3 In consideration for the support services specified in Section 2.2, Organization shall pay the Annual Support and Maintenance Fee as defined in Schedule B. The Annual Support and Maintenance Fee will be billed annually in advance beginning on the anniversary of the Support and Maintenance Agreement or on an alternative date mutually agreed to in writing by both parties. If the Organization would like to match the annual invoicing of the Support and Maintenance Fee to its fiscal year or any other period it may request, in the initial year, that the Consultant issue a prorated invoice for the portion of the year remaining in said initial year. Consultant may change the Annual Support and Maintenance Fee from time to time. In addition to the Annual Support and Maintenance Fee, Organization shall reimburse Consultant for its direct expenses in providing support services pursuant to this Agreement, including, but not limited to: (a) courier services, photocopying, faxing and reproduction services, all reasonable travel costs, including a travel time rate of $75.00/hour, meal expenses of not more than $50,00 per diem (receipts provided) and a mileage charge consistent with the Internal Revenue Service published guidelines, long distance telephone calls and all other reasonable expenses incurred in the performance of Consultant's duties hereunder. Consultant may update its reimbursement policies from time to time, in which case such updated policies shall apply for purposes of this Support and Maintenance Agreement, provided that such updated reimbursement policies must generally apply to all clients of Consultant. 2.4 All support services provided by Consultant to Organization other than those specified in Section 2.2 (such as, but not limited to, on -site support), shall be provided to Organization by Consultant at Consultant's then prevailing prices, hourly rates, policies and terms. For certainty, any updates of, or enhancements to, the Software will be made available to Organization free of charge (with respect to the actual updates or enhancements), but all services provided by Consultant with respect to such updates or 25E -7 enhancements will be subject to the Consultant's then- prevailing prices, hourly rates, policies and terms, meaning that such then- prevailing prices will apply to matters such as set -up and training relating to such updates or enhancements. 2.5 The initial term of this Agreement shall be for three years beginning on April 1, 2014 through March 31, 2017. If the Support and Maintenance Agreement is terminated by Organization, it shall be entitled to retain the Software licensed to it as at the date of such termination, but it will relinquish its rights to receive upgrades of, or enhancements to, the Software, or services for the Sofhvare 2.6 Title to and ownership of all proprietary rights in the Software and all related proprietary information shall at all times remain with Consultant, and Organization shall acquire no proprietary rights by virtue hereof 2,7 Either party's lack of enforcement of any provision in this Support and Maintenance Agreement in the event of a breach by the other shall not be construed to be a waiver of any such provision and the non - breaching party may elect to enforce any such provision in the event of any repeated or continuing breach by the other. 18 This Support and Maintenance Agreement is the exclusive statement of the entire support and maintenance agreement between Consultant and Organization. No change, termination or attempted waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom the same is sought to be enforced. 29 The parties hereto agree that the terms and conditions contained herein shall prevail notwithstanding any variations on any orders submitted by Organization. 2.10 The particular provisions of this Support and Maintenance Agreement shall be deemed confidential in nature and neither Organization nor Consultant shall divulge any of its provisions as set forth herein to any third party except as may be required by law. 211, e uire Consent: Organization will obtain and provide to Consultant any Required Consents necessary for Consultant to provide the Support Services described in this Agreement. A Required Consent means any consent or approvals required to give Consultant and its subcontractors the right or license to access, use and /or modify (including creating derivative works) to the hardware, software, firmware and other products that the Organization uses, without infringing the ownership or license rights (including patent and copyright) of the providers or owners of such products. Organization will indemnify, defend and hold Consultant, its affiliates, and subcontractors, harmless from and against any and all claims, losses, liabilities and damages (including reasonable attorneys' fees and cost) arising from or in connection with any claims (including patent and copyright infringement) made against Consultant, alleged to have occurred as a result of the Organization's failure to provide any Required Consents provided that Consultant uses such third party products only as necessary to perform its obligations under this Agreement. Consultant will be relieved of the performance of any obligations that may be affected by the Organization's failure to promptly obtain and provide any Required Consent to Consultant. 25E -8 fil"R04rW-ft i t 3.1 nos Agreement shall remain in fail force and effect excent as terminated as follows: a) If either party neglects or fails to perform, observe or cure within ninety (90) clays of written notice of such failure to perform any of its existing or future obligations. b) This Agreement shall continue for the stated Term unless either party terminates with sixty (60) days written notice to the other party. c) If Organization attempts to assign this Agreement or any of its rights hereunder, or undergoes a reorganization, without complying with the Agreement, ARTICLE IV R H:MEDIES AND LIABILITY 4.1 Remedies and Liability (a) Termination of this Agreement shall not affect any right of action of either party arising from anything which was done or not done, as the case may be, prior to the termination taking effect. (b) The Organization and the Consultant recognize that circumstances may arise entitling the Organization to damages for breach or other fault on the part of the Consultant arising fi-orn this Agreement. The parties agree that in all such circumstances the Organization's remedies and the Consultant's liabilities will be limited as set forth below and that these provisions will survive notwithstanding the termination or other discharge of the obligations of the parties trader this Agreement. (i) FOR BREACH OR DEFAULT BY THE CONSULTANT OR OTHERWISE IN CONNECTION WITH THIS SUPPORT AND MAINTENANCE AGREEMENT, INCLUDING A BREACI-I OR DEFAULT ENTITLING THE ORGANIZATION TO RESCIND OR BE DISCHARGED FROM THE PROVISIONS OF THIS SUPPORT AND MAINTENANCE AGREEMENT AND WHETHER IN THE NATURE OF A BREACH OF CONDITION OR A FUNDAMENTAL BREACH, THE ORGANIZATION'S EXCLUSIVE REMEDY, IN ADDifION TO ELECTING IF SO ENTITLED TO RESCIND OR BE DISCHARGED 25E -9 FROM THE PROVISIONS OF THIS SUPPORT AND MAINTENANCE AGREEMENT, SHALL, BE PAYMENT BY THE CONSULTANT OF THE ORGANIZAT'ION'S DIRECT DAMAGES TO A MAXIMUM AMOUNT EQUAL. TO, AND THE CONSULTANT SHALL IN NO EVENT BE LIABLE IN EXCESS OF, THE AMOUNT OF FEES ACTUALLY PAID BY THE ORGANIZATION TO THE CONSULTANT UNDER THIS SUPPORT AND MAINTENANCE AGREEMENT DURING THE THEN - CURRENT TERM OF THE SUPPORT AND MAINTENANCE AGREEMENT UP TO AND INCLUDING THE DATE OF TERMINATION. (ii) IN NO EVENT SHALL ANY DAMAGES INCLUDE, NOR SHALL THE CONSULTANT BE LIABLE FOR, ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES EVEN IF THE CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE CONSULTANT SHALL NOT BE LIABLE FOR LOST PROFITS, LOST BUSINESS REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, OR FOR ANY CLAIM WHATSOEVER AGAINST THE ORGANIZATION BY ANY OTHER PARTY. (iii) CLAUSES (i) AND (ii) SHALL APPLY IN RESPECT OF ANY CLAIM, DEMAND OR ACTION BY ORGANIZATION IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM, DEMAND OR ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT. 4.2 Inteent, The parties hereby confirm that the waivers and disclaimers of liability, releases from liability, limitations and apportionments of liability, and exclusive remedy provisions expressed throughout this Agreement shall apply even in the event of default, negligence (in whole or in part), strict liability or breach of contract of the person released or whose liability is waived, disclaimed, limited, apportioned or fixed by such remedy provision, and shall extend to such person's affiliates and to its shareholders, directors, officers, employees and affiliates. 4.3 Remedies Where remedies are expressly afforded by this Agreement, such remedies are intended by the parties to be the sole and exclusive remedies of the Organization for liabilities of the Consultant arising out of or in connection with this Agreement, notwithstanding any remedy otherwise available at law or in equity, 25E -10 ARTICLE V INDEMNITY 5.1 Indemni The Organization shall indcaurify and save harmless the Consultant, its successors and assigns together with its officers, directors, employees, agents and those for whom it is in law responsible, only from and against any and all liabilities, damages, costs, expenses, carries of action, claims, suits, proceedings and judgments (collectively "Claims ") which they may incur or suffer or be put to by reason of or in connection with or arising from any breach, violation or non - performance by the Organization of any obligation contained in this Agreement to be observed or performed by the Organization, or any wrongful act or negligence of the Organization or its agents or employees which relates to this Agreement, howsoever arising. The Organization acknowledges and agrees that this indemnity shall survive any termination of this Agreement. The Consultant shall indemnify and save harmless the Organization, its successors and assigns together with its officers, directors, employees, agents and those t.`or whom it is in law responsible, from and against any and all liabilities, damages, costs, expenses, causes of action, claims, suits, proceedings and judgments (collectively "Claims ") which they may incur or suffer or be put to by reason of or in connection with or arising directly from any material breach or non- performance by the Consultant of any obligation contained in this Agreement to be observed or performed by the Consultant, or any negligence of the Consultant or its agents or employees which relates to this Agreement, howsoever arising. Consultant shall not be responsible for any Claims resulting, in whole or in part, from the acts or omissions of Organization, its employees, consultants or agents or any third party. ARTICLE VI !GENERAL 6.1 Force Ma eure Neither party shall be liable for delay or failure in performance resulting from acts beyond the control of such party including, but not limited to, acts of God, acts of war or of the public enemy, riots, fire, flood, or other natural disaster, acts of government, strike, walkout, communication line or power failure, failure in operability or destruction of the Organization's computer (unless by reason of the negligence of a party to this Agreement) or failure or inoperability of any software other than the Software. Any applicable delivery schedule shall be extended by a period of time equal to the time lost because of any such delay. 6.2 Confirlengality (a) Duty wed to the Organization -- The Consultant acknowledges that it may receive information from the Organization or otherwise in connection with this Agreement. Except for information in the public domain, unless such information falls into the public domain by disclosure or other acts of the Organization or through the fault of the Organization, the Consultant agrees: (i) to maintain this information in confidence; 25E -11 (ii) not to use this information other than in the course of this Agreement; (iii) not to disclose or release such information except on a need -to -know only basis; (iv) not to disclose or release such information to any third person without the prior written consent of the Organization, except for authorized employees or agents of the Consultant; and to take all appropriate action, whether by instruction, agreement or otherwise, to ensure that third persons with access to the information under the direction or control or in any contractual privity with the Consultant, do not disclose or use, directly or indirectly, for any purpose other than for performing the Services during or after the term of this Agreement, any material or information, including the information, without first obtaining the written consent of the Organization. 6.3 lode iation The parties agree to submit, any claim, controversy or dispute arising out of or relating to this Agreement or the relationship created by this Agreement to non - binding mediation before bringing a claim, controversy or dispute in a court or before any other tribunal. The mediation is to be conducted by either an individual mediator or a mediator appointed by mediation services mutually agreeable to the parties. The mediation shall take place at a time and location which is also mutually agreeable; provided; however, in no event shall the mediation occur later than ninety (90) days after either party notifies the other of its desire to have a dispute be placed before a mediator. Such mediator shall be knowledgeable in software system agreements. The costs and expenses of mediation, including compensation and expenses of the mediator (and except for the attorney's fees incurred by either party), is to be shared by the parties equally. If the parties are unable to resolve the claim, controversy or dispute within ninety (90) days after the date either party provides the other notice of mediation, then either party may bring and initiate a legal proceeding to resolve the claim, controversy or dispute unless the time period is extended by a written agreement of the parties. 6.4 Addresses for Notice Any notice required or permitted to be given to any party to this Agreement shall be given in writing and shall be delivered personally, mailed by prepaid registered post or sent by facsimile to the appropriate address or facsimile number set out below. Any such notice shall be conclusively deemed to have been given and received on the day on which it is delivered or transmitted (or on the next succeeding business day if delivered or received by facsimile after 5:00 pan. local time on the date of delivery or receipt, or if delivered or received by facsimile on a day other than a business day), if personally delivered or sent by facsimile or, if mailed, on the third business day following the date of mailing, and addressed, in the case of the Consultant, to: SYSTEM INNOVATORS, A DIVISION OF N. HARRIS COMPUTER CORPORATION 10550 Deerwood Park Blvd, Suite 700 Jacksonville, FL 32256 25E -12 Attention: Jeff Sumner, Executive Vice President Telephone: 800963.5000 ext.72504 and in the case of the Organization, to: CITY OF SANTA ANA Address: 20 Civic Center Plaza (M -14) Santa Ana, CA 92702 Contact: Christine Duarte Phone: (714) 647 -5335 Each party may change its particulars respecting notice, by issuing notice to the other party in the manner described in this Section 6.4. fi.5 Ass meat Neither .Party may assign any of its rights or duties under this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld, except that either Party may assign to a successor entity in the event of its dissolution, acquisition, sale of substantially all of its assets, merger or other change in legal status. The Agreement shall inure to the benefit of and be binding upon the Parties to this Agreement and their respective successors and permitted assigns. 6.6 Bhidin2 Agreement and Inurement This Agreement shall be binding upon the parties hereto and their respective successors and assigns. This Agreement shall ensure to the benefit of the parties hereto and their respective successors and permitted assigns, 6.7 Entire Agreement This Agreement shall constitute the entire agreement between the parties hereto with respect to the matters covered herein. No other agreements, representations, warranties or other matters, oral or written, purportedly agreed to or represented by or on behalf of Consultant by any of its employees or agents, or contained in any sales materials or brochures, shall be deemed to bind the parties hereto with respect to the subject matter hereof. Organization acknowledges that it is entering into this Agreement solely on the basis of the representations contained herein, 10 25E -13 6.8 Section Headings Section and other headings in this Agreement are for reference purposes only, and are in no way intended to describe, interpret, define or limit the scope or extent of any provision hereof. 6.9 Independent Contractor Organization engages Consultant under this Agreement solely as an independent contractor to perform Consultant duties which are described in this Agreement. Organization and Consultant expressly acknowledge and agree that Consultant is the independent contractor of Organization an nothing contained in this Agreement or which otherwise exists shall be construed by Organization, Consultant or any third person or entity to create a relationship of joint ventures, partners, or employer and employee. 6.10 Governing Law This Agreement shall be governed by and construed under the laws of the state of California. 6,11 TriBiby,inry Organization and Consultant hereby waive, to the fullest extent permitted by applicable law, the right to trial by jury in any action, proceeding or counterclaim filed by any party, whether in contract, tort or otherwise, relating directly or indirectly to this Agreement or any acts or omissions of Consultant in connection therewith or contemplated thereby. 6.12 Invailslity The invalidity or unenforceability of any provision or covenant contained in this Agreement shall not affect the validity or enforceability of any other provision or covenant herein contained and any such invalid provision or covenant shall be deemed to be severable. 6.13 Waiver A term or condition of this Agreement may be waived or modified only by written consent of both parties. Forbearance or indulgence by either party in any regard shall not constitute a waiver of the term or condition to be performed, and either party may evoke any remedy available under the Agreement or by law despite such forbearance or notice. 6.14 Counterparts This Agreement may be executed in counterparts (whether by facsimile signature or otherwise), each of which when so executed shall constitute an original and all of which together shall constitute one and the same instrument. 25E -14 6.15 Further Assurances The parties shall do all such things and provide sill such reasonable assurances as may be required to consummate the transactions contemplated hereby, and each party shall provide such further documents or instruments required by any other party as may be reasonably necessary or desirable to affect the purposes of this Agreement and carry out its provisions. N 25E -15 IN WITNESS WHEREOF, the Parties have executed this Support and Maintenance Agreement to be effective as of the date first written above. ATTEST: Maria Huizar Clerk of the Council APPROVED AS TO FORM: SOMA R. CARVALHO City Attorney By; i� C i _ ya . Jose Sandoval Chief Assistant City Attorney SYSTEM INNOVA�T,ORS, A DIVISION OF N. HARR,1 S CQ�NIP-QTER CORPORATION Per: Sumner ive Vice President CITY OF SANTA ANA David Cavazos City Manager 25E -16 EXHIBIT I Standard Support and Maintenance Services — Standard Guidelines The purpose of this Exhibit 1 is to provide our customers with information on our standard coverage, the services which are included as part of your annual software support, a listing of call priorities, an outline of our escalation procedures and other important details. Consultant reserves the right to matte modifications to this document as required; provided, however, Consultant shall not reduce the scope of support provided hereunder without the prior consent of the Organization. The services listed below are services that are included as part of your software support. • 800 Toll Free Telephone support • Cost effective upgrade solutions • Scheduled assistance for installations, upgrades & other special projects (there may be charges depending on the scope of work) • Technical troubleshooting & issue resolution • E -mail support call logging and notification • Standard software releases and updates . Defect corrections (as warranted) - Planned enhancements State and/or Federal mandated changes (charges may exist depending on scope) Release notes • Limited training questions (15 minute guideline) • Design review for potential enhancements or custom modifications • Ability to attend the annual customer conference (attendance fees apply) Help Desk Hours Our standard hours of support are from 8:00 a.m. EST to 8 :00 p.m. BST, Monday to Friday, excluding designated statutory holidays. E 25E -17 Response Times Response times will vary and are dependent on the priority of the call. We do our best to ensure that we deal with incoming calls in the order that they are received, however calls will be escalated based on the urgency of the issue reported, Our response time guidelines are as follows: Priority 1: 1 - 24 hours Priority 2: 1 - 2 business days Priority 3: 1 - 5 business days Call Priorities In an effort to assign our resources to incoming calls as effectively as possible, we have identified three types of call priorities, 1, 2 & 3. A Priority 1 call is deemed by our support staff to be an Urgent or high Priority call, Priority 2 is classified as a Medium Priority and Priority 3 is deemed to be a Low Priority. The criteria used to establish guidelines for these calls are as follows: Priority i — High • System Down (Sotiware Application) • Inability to process payments • Program errors without workarounds • Incorrect calculation errors impacting a majority of records • Aborted postings or error messages preventing data integration and update • Performance issues of severe nature impacting critical processes Priority 2 - Medium • Calculation errors impacting a minority of records • Reports calculation issues • Printer related issues (related to interfaces with our software and not the printer itself) • Security issues • Workstation connectivity issues (Workstation specific) Priority 3 - Low • System errors that have workarounds • Usability issues li 25E -18 • Performance issues not impacting critical processes • Report formatting issues • Training questions, how to, or implementing new processes • Aesthetic issues • Issues with workarounds for large majority of accounts • Reconunendations for enhancements on system changes • Questions on documentation Call Process All issues or questions reported to support are tracked via a support call. Our support analysts cannot provide assistance unless a support call is logged. Our current process for logging calls includes the following: Email, phone and fax. • Your call must contain at a minimum: your organization name, contact person, software product and version, module and /or menu selection, nature of issue, detailed description of your question or issue and any other information you believe pertinent. • Our support system or one of our support analysts will provide you with a call id to track your issue and your call will be logged into our support tracking database. • Your call will be stored in a queue and the first available support representative will be assigned to deal with your issue. • As the support representative assigned to your call investigates your issue, you will be contacted and advised as to where the issue stands and the course of action that will be taken for resolution. If we require additional information, you will be contacted by the assigned support representative to supply the information required. • If your issue needs to be escalated to a development resource or programmer for resolution, your issue will be logged into our development tracking database and you will be provided with a separate id number to track the progress of the issue. At this time, your support call will be closed and replaced by the development id nunmbet. The development id number will remain open until your issue has been completely resolved. Issues escalated to development will be scheduled for resolution and may not be resolved . immediately depending on the nature and complexity of the issue. • Contact the support department at your convenience for a status update on your development issues. 16 25E -19 Escalation Process Our escalation process is defined below. This process has been put in place to ensure that issues are being dealt with appropriately. If at any time you are not completely satisfied with the resolution of your issue, you are encouraged to escalate with the support department as follows: Level l: Contact the support representative working on your issue Level 2: Contact Ure support supervisor or group lead Level 9: Contact the Director of Support Level A: Contact the Executive Vice President of System .innovators Holiday Schedule Below is a listing of statutory holidays. Please note that support services will be closed on designated days as outlined below. An asterisk * next to the holiday indicates that the System Innovators office is closed, however, technical support will be available. New Year's Day Closed President's Day (Observed) Closed Memorial :Day (Observed) Closed 4'` of July (Observed) Closed Labor Day Closed Columbus Day * Closed Thanksgiving Day Closed Day after Thanksgiving * Closed Christmas Day Closed Day after Christmas * Closed 25E -20 Billable Support Services The services listed below are services that are out of scope of your support and maintenance agreement and are therefore considered billable services. • Extended telephone training • Forms redesign or creation (includes Bill Prints, Notice Prints and Letters, Permits, etc.) • Setup & changes to hand -held interface or creation of new interface • Setup of new services or changes to services (POP, ACH, etc.) • File imports /exports - Interfaces to other applications • Refreshes, backups, restores, setting up test areas • Setup of new printers, printer setup changes • Custom modifications (reports, bills, forms, reversal of customizations) • Setting tip additional companies / agencies / tokens / general ledgers • Data conversions / global modification to setup table data • Database maintenance, repairs & optimization • Extended Hardware & Operating System support • Upgrades & support of third party software • Installations / re- installations (workstations, servers) • iNovah Public API consulting 'rest Databases & Environments We support customers in the maintenance of independent Test Environments for testing purposes. This allows customers the opportunity to test fixes, modifications, new business processes and/or scenarios without risking any potentially unwanted changes to the live environment. The creation of Test Databases & Environments is a billable service, quotations & incremental maintenance rates will be provided on request. Connection Methods To ensure we can effectively support our clients, we require that a communication link is established and maintained between our two sites. It is the client's responsibility to ensure the connection is valid at your location so that we can connect to your site and resolve any issues. Our supported methods of connection axe: Direct internet, Virtual Private Network (VPN), Remote Access Server (W). I x. 25E -21 Hardware and Third Party Support — if applicable The purpose of this section is to provide our customers with information on our standard coverage and the services which are included as part of your annual hardware and third party software support (if applicable). This section serves as a guideline for the support department but is superseded by an existing third party or other agreement. Standard Hardware and Third Party Software Support Services + 800 telephone support _. first line phone support for troubleshooting (note more complex issues will be escalated to the actual vendor of the products) 9 "On call' after hours support (scheduled assistance for installations, upgrades and other special projects — there may be charges depending on the scope of work) o Technical troubleshooting o Limited training questions (1 S minute guideline) o Recommendations on speoific hardware requirements Support provided for installed database issues (30 minute guideline) * Web Service installation and connection to database assistance ® Updating system to support new versions of licensed applications 19 25E -22 The services listed below are services that are OUT OF SCOPE and are therefore considered billable: a On -site installation or upgrade of hardware and third party software a Extended telephone training (beyond 15 minutes) a Reconfiguration of hardware and fileservers a Recovering data resulting from client error a Upgrading of hardware systems a Assistance with creation of back-Lip scripts /backup recovery a Assistance with recovering data resulting from system crashes (charges may apply) a Assistance with database installation, configuration and updating a Preventative maintenance monitoring or other services a Recommending or assisting with disaster recovery plans a Re- establishment of Web /ODBC connection if connection was lost due to actions of customer a WEB /1P /ODBC connections to other third party products a Creation of custom reports a Report writer training, upgrades and installations (other than at time of initial purchase) W 25E -23 Schedule "A" i)rscri�on o#' Software Covered Programs - iNovah Software -- 200,000 Annual Receipt Volume Required Programs (provided by "Organization ") Windows XP Professional or Windows 7 (workstations) Windows Server 2008 (Web Server) Microsoft SQL Server 2008 (Database Server) - Necessary Anti -Virus protection - Microsoft .NET Framework (workstations & servers) 25E -24 Schedule "B" Lee Structure and Payment Schedule .Payment sebedule. Total Software ant] Rardivare Support and Maintenance T'ee (for budgetary purposes): A. Annual Support and Maintenance Fee are as follows beginning Month, Day, Year (due upon invoice) I Total Software and Hardware Support and Maintenance Fee Term It April 1, 2014 – March 31, 2015 Description Ext. Price iNovah –SWS $23,697.00 20-'rPG A776 Printer –HWX 4,200.00 9 – ID'Tech Mag Stiip Readers --l-rWX 288.00 5 – Scan 5133 Short Slot Reader –HWX 1,600.00 I I -APO Cash Drawer-HWX 770.00 $30,555,00 2, Total Software and Hardware Support and Maintenance Fee Term 2; April 1, 2015 - March 31, 2016 Description Ext, Price Novah--SWS $24,882.00 20-TPO A776 Printer –HWX 4,200.00 9 – ID Tech Mag Strip Readers –1-TWX 288.00 3 – Scan 5133 Short Slot Reader –HWX — 1,600.00 11 - TP j, Cash D–r aw er -lrW —X 770.00 3 Total Software and Hardware Support and Maintenance Fee Term 3: April 1, 2016 - March 31, 2017 Description Ext. Price iNovah –SWS $26,126.00 20-'I'PG A776 Printer --HWX 4,200.00 M ag Strip Readers –IIWX 5 -- Scan 5133 Short Slot Reader –I RVX 1,600.00 I I -AIIG Cash Drawer-IIWX 770.00 $32,984.00 25E-25 i'otal Sottrvare and �fardware Support and P2aintenance �'ee (for 3 terms) S95 279.00 25E-26 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: AMEND MASTER FUNDING AGREEMENT WITH OCTA FOR MEASURE M2 COMPREHENSIVE TRANSPORTATION FUNDING PROGRAMS CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on I" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute Amendment No. 6 to the Master Funding Agreement with the Orange County Transportation Authority for the M2 Comprehensive Transportation Funding Programs, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION Approval of this recommended action will allow the City to continue participation in all Measure M2 Comprehensive Transportation Funding Programs. The amendment revises the time frame that the Orange County Transportation Authority (OCTA) can audit the project records from four to five years after project completion. On August 24, 2011, City Council approved execution of the Master Funding Agreement with OCTA to receive revenues from the one - half -cent sales tax Measure M that was approved by voters on November 2007. The Master Funding Agreement stipulates the terms, conditions, and responsibilities for receiving funds and implementing the programs according to the established program guidelines. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. 25F -1 Amend Master Funding Agreement with OCTA March 18, 2014 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. 2L J Edwin "William" ealvez, P.E. Interim Executive Director Public Works Agency EWG /VN Exhibit: 1. Amendment No. 6 to OCTA Agreement No. C -1 -2783 25F -2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AMENDMENT NO. 6 MASTER FUNDING AGREEMENT NO. C -1 -2783 BETWEEN ORANGE COUNTY TRANSPORTATION AUTHORITY AND CITY OF SANTA ANA FOR iifrY�L�I� i �C�1 I�1 �:7 E�%1 iff�I�s� f)PCr77ZZ�l LTril; THIS AMENDMENT NO. 6 is effective this day of 2014, by and between the Orange County Transportation Authority ( "AUTHORITY "), and the City of Santa Ana, a municipal corporation (hereinafter referred to as "AGENCY "). WITNESSETH: WHEREAS, by Agreement No. C -1 -2783 dated October 4, 2011, as last changed by Letter Agreement No. 5, AUTHORITY and AGENCY entered into a Master Funding Agreement that defines the specific terms and conditions and funding responsibilities between AUTHORITY and AGENCY for Comprehensive Transportation Funding Programs (CTFP) and Local Fair Share Program Net Revenues; WHEREAS, AUTHORITY is revising the audit provision language with no change to the maximum cumulative obligation; and NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and AGENCY that Agreement No. C -1 -2783 is hereby amended in the following particulars only: 1. Amend ARTICLE 3. RESPONSIBILITIES OF AUTHORITY, page 4 of 10, Paragraph G, to delete in its entirety and in lieu thereof insert: "AUTHORITY, or agents of AUTHORITY, may upon close -out off each PROJECT(s) under this Agreement, perform a technical or field review to ensure that CTFP Guidelines were followed. Such review may be performed after an acceptable final report has been submitted for each Pa e 1 of 2 26V3 1 2 3 4 5 s 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AMENDMENT NO.6 TO AGREEMENT NO. C -1 -2783 PROJECT(s). If the review determines that any of the activities performed are ineligible for CTFP funding, AGENCY must return the amount of funding used to perform the ineligible activity to AUTHORITY in accordance with Article 4,G." 2. Amend ARTICLE 6. AUDIT AND INSPECTION, page 7 of 10, line 1, to delete "a period of four (4) years" and in Ileu thereof insert "a period of five (5) years." The balance of Agreement No. C -1 -2783 remains unchanged IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 6 to Agreement C -1 -2783 to be executed as of the date first above written. CITY OF SANTA ANA ORANGE COUNTY TRANSPORTATION AUTHORITY By: By: ATTEST: By: — Maria D. Huizar City Clerk APPROVED AS TO FORM: By: c t.La_ 9W 61L Sonia R. Carvalho" City Attorney Dated: 91 Meena Katakia Manager, Capital Projects Kennard R. Smart, General Counsel Page 2 of 2 25F -4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: AGREEMENT WITH ARRO AUTOGAS FOR PROPANE FUELING STATION EQUIPMENT, FIVE -YEAR SERVICE AGREEMENT, AND PROPANE FUEL PURCHASE CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on I" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER CITY MA AGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute an agreement with Arro Autogas, subject to nonsubstantive changes approved by the City Manager and City Attorney, to: Provide and install propane fueling station equipment at the Santa Ana Corporate Yard, in an amount not to exceed $10,500; 2. Provide maintenance of the fueling station, in an amount not to exceed $4,950 annually, for a period of five years commencing with the City's written acceptance of the fueling facility; and, 3. Supply propane fuel in accordance with the agreement price proposal, also for a period of five years commencing with the City's written acceptance of the fueling facility. DISCUSSION Approval of this recommended action will provide for Phase 1 of the Propane Fueling Station project at the City Corporate Yard (Yard). The City's Facilities, Fleet, and Central Stores Division (FFCS) adopted a Five -Year Energy Alternative Plan in February 2011, in an effort to continue and expand the process of creating an environmentally responsible and sustainable operation. Provision of a new propane fueling facility is in alignment with this plan. In June 2013, the City released a Request for Proposals to establish a new propane fueling station at the Yard. The Scope of Work consisted of three parts: (1) design and build of a propane fueling facility; (2) a five -year service agreement; and (3) propane supply for the facility. The City received one proposal which included a cost for the facility design -build component that far exceeded the City's estimate. At the recommendation of staff, City Council rejected the bid on October 21, 2013. To create a more competitive bidding climate for the project, staff issued separate RFPs for 25G -1 Agreement with Arro Autogas for Propane Fueling Station Equipment, Five -Year Service Agreement and Propane Fuel Purchase March 18, 2014 Page 2 dispenser installation and maintenance, and fuel supply (Phase 1 RFP), and design -build of the required site improvements (Phase 2 RFP). The Phase 1 RFP was posted on the City website December 3, 2013. Although seven companies attended the pre - proposal job walk and submitted Letters of Intent, only one proposal was received from Arro Autogas on January 9, 2014. The proposal was evaluated by the FFCS Manager and PWA Design Engineering staff, and an on -site interview was conducted. Staff has determined that the fee for the proposed Scope of Work is reasonable and appropriate, and recommends that the contract be awarded to Arro Autogas. After the agreement with Arro Autogas is executed, staff will issue the Phase 2 RFP. ENVIRONMENTAL IMPACT Environmental Review No. ER- 2014 -11 has been completed and a Notice of Exemption has been filed pursuant to the California Environmental Quality Act. FISCAL IMPACT Air Quality Management District - Mobile Source Air Pollution Reduction grant and AB2766 subvention funds will be used for the installation of the fueling equipment. These funds are available in the Fleet Services Air Quality Improvement Fund (Account 03110101 - 66220, Project 11- 1300). Propane station maintenance and propane supply will be charged to the Stores and Property Control Fund (Account 07610102 -62300 and Account 07610102 - 63302, respectively). APPROVED AS TO FUNDS AND ACCOUNTS: Edwin "William" Galvez, P.E. Francisco Gutierrez Interim Executive Director Executive Director Finance & Management Public Works Agency Services Agency 9 WG /SF Exhibits: 1: Location Map 2: Agreement 25G -2 ;Fa FIRST ST F] AlH T 5T L F] o` u' w ¢� ¢ V fqh� Q �f� W H Z r3 7 I H Z N H Q EXHIBIT 1 IN SANTA ANA CITY COUNC I L Ella AGENDA P WA DATE, PROJECT (11.1300) PROPANE FUELING l March 18, 2014 STATION AT CORPORATE YARD 25G -4 AGREEMENT FOR PROVISION OF EQUIPMENT AND COMMODITY PROPANE FUELING STATION THIS AGREEMENT, made and entered into this 4th day of March, 2014 by and between San Luis Butane Distributors, dba Arro Autogas, a California corporation (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 Propane Fueling Station Equipment, Facility Servicing, Propane Supply and Distribution. 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 Propane Fueling Station Servicing, Propane Supply and Distribution. 3. In undertaking the performance of this Contract, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Contract will be performed in compliance with such standards. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: SCOPE OF SERVICES Contractor shall 1) provide and install a propane fueling station at the Santa Ana Corporate Yard; 2) provide maintenance of the fueling station; and 3) supply the propane commodity, as set forth in RFP 13 -012 "Propane Fueling Station ", attached hereto as Exhibit A, and incorporated by this reference. Contractor shall provide specifications for the tank to be provided, and shall assist with the coordination and approval of site work necessary to accommodate the propane fuel facility. I1. CONTRACT DOCUMENTS This Contract consists of this Agreement, the Special Provisions set forth in Exhibit A and the Maintenance specification attached hereto as Exhibit B. Ill. OWNERSHIP OF DRAWINGS, SPECIFICATIONS, PROGRAMS AND SYSTEMS Contractor's contribution to the Project, including drawings and specifications to be produced by Contractor hereunder, will not infringe or misappropriate the proprietary or personal rights of any third person or party. Any and all records, papers, drawings, specifications, programs, systems and other materials prepared by Contractor pursuant to this Contract shall be the property of City. Contractor agrees to provide City with any such materials upon request of City. IV. TERM The term of this contract shall commence on the date of award by City Council, however, no work shall commence until all required bonds and insurance certificates have been approved by the City Attorney. The installation contract shall terminate upon the City's delivery to Contractor of written acceptance of the propane fueling station, at which time the five year maintenance and fuel delivery term shall commence. V. COMPENSATION a. City agrees to pay and contractor agrees to accept as total payment for its services: 1. Provision of the propane tank(s), consultation services necessary to ensure the facility is built to accommodate Contractor's equipment, and installation of the equipment, a total of $10,500. pro pan es upp ly2 /24/14 2. Maintenance and Repair services shall be provided at the rate of $412 per month. Said charges shall not exceed $4,950.00, annually, during the term of this agreement. 3. Commodity purchase shall be charged as set forth in Contractor's February 5, 2014 letter, attached hereto as Exhibit B, setting forth the agreed method of setting the propane price. b. Invoices 1, The contractor shall submit a monthly invoice by the fifteenth of the month to the City for the services rendered in the prior month. 2. 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 iii. City project number andfor 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 forty -five (45) 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. VI. 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. VII. 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 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 therefrom, and property damage, in the total amount of One Million Dollars ($2,000,000) 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 insureds provisions. 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 nonowned automobiles. Propan TUu P y2 /24/14 ��� less than One Million Dollars ($1,000,000) per occurrence. Such insurance shall include coverage for owned, hired and nonowned automobiles. 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. 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. 5. 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. VIII. 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 andlor 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. IX. 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 Propanesupply2l24114 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— Design Engineering City of Santa Ana 20 Civic Center Plaza (M -36) Santa Ana, CA 92701 Fax 714 - 647 -5635 To Contractor: Ano Autogas 1960 Ramada Dr Paso Robles, CA 93446 Fax 805 -239 -1237 X. TERMINATION The City reserves the right to terminate the contract as follows: 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 terminate the agreement forthwith by giving written notice to contractor's project manager. 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 if 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. A. 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. XII. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS 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. Propnnesupply2 /24/14 ____ 2. Contractor warrants that the performance of services under this contract shall be compliant with the current codes and requirements as adopted by Federal, State, County and City jurisdictions and as it may be amended or updated throughout the term of this contract. XIV. 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. XV. 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. XVI. 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. XVII. 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. Propanesupply=4 /14�_� IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA CARVAHALO City Attorney 'n / I. / By: _ Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: Edwin "William" Galvez. P.E. Interim Executive Director Public Works Agency CITY OF SANTA ANA DAVID CAVAZOS City Manager SAN LUIS BUTANE DISTRIBUTORS, DBA ARRO AUTOGAS WILLIAM PLATZ President Propanesupply2l24114 e EXHIBIT A RFP — PROPANE FUELING STATION SCOPE OF SERVICES Assessment of Existing Conditions Contractor shall review and analyze the location of the proposed project and shall compare existing facilities and conditions with what is requested by City. Contractor has clarified and made City aware of any errors, omissions, or discrepancies found. II, Coordination Contractor shall assist with coordination and approval of site work by others required to prepare the site to install the propane dispensing system. III. Refueling Station: Contractor shall provide all equipment, materials and incidentals to provide a propane fueling station, complete and in place, which meets the following requirements: • Regulations: Project shall meet all regulations as set by the National Fire Protection Agency (NFPA), the Department of Transportation (DOT), the Occupational Safety and Health Administration (OSHA) the California Fire Code Article 58, Santa Ana Municipal Code Chapter 14, City of Santa Ana Planning and Building Agency and the Orange County Fire Authority. • Bulk Storage Tank (Vessel): Provide (1) 2,000 gallon capacity horizontal tank, with 6" diameter, concrete filled, crash bollards (painted yellow) per the layout shown on site plan and per local building and fire codes. Bulk storage tank shall be constructed of steel in accordance with (American Society of Mechanical Engineers (ASME) and the requirement of state and local building and fire codes. Tank installation shall meet requirements of state and local building and fire codes. Tank shall be installed proper distance from other tanks, building, property lines and other structures as outlined in Codes. Tanks shall be painted a light, reflective color. "Propane" shall be stenciled on sides. • Dispenser: Shall serve two vehicles from two sides. Provide propane refueling dispenser, double hose, with fully integrated electronics to interface with the City of Santa Ana Corporate Yard current fuel management system. Key card system shall be pre - certified. IV. Service and Purchase Agreement: Contractor shall provide 5 -year service and propane purchase agreement. Service shall include necessary maintenance and repair as required to ensure safety, proper function and use. All equipment, including but not limited to, hose, fittings, piping, valves, adapter thread, tank, shall be inspected on a monthly basis for leaks, corrosion, dents, bulging, rust and /or other damage and repaired /replaced when necessary. Fuel provider must provide qualified technicians for the dispenser. Documentation shall be provided evidencing that personnel who will be dispensing propane have been properly trained on safe propane handling procedures. Qualified trainings include, but are not limited to: Department of Transportation Hazmat Training, National Propane Gas Association's Certified Employee Training Program (CETP), and the GAS Check training Program. OSHA mandates that protective equipment be worn. Fuel will be re- filled and charged by gallon. Contractor shall provide a revenue share of $.10 per gallon of propane sold to the public, to enable City to recover costs associated with providing propane fuel. Contractor will provide the data required by City to audit the accuracy of City revenue share receipts. Propanesupply2 /24/14 Contractor will monitor fuel supply in the propane tank and the reorder /refill without downtime to City facility. V. Fuel: Propane must meet the California Air Resources Board (CARE) propane motor fuel specified levels. Fuel provider must provide alternative refueling locations with public access and 24 -hour card reader electronic point of sale (EPOS) system throughout Southern California. VI. Erosion Control Plan / SWPPP For construction related projects having less than one (1) acre of disturbed soil, contractor shall prepare an erosion and sediment control plan immediately after award of the contract, for approval by the City. The erosion control plan shall remain in effect until approval to remove is granted by the City. VII. Record Drawings: Contractor shall provide record drawings of facility as installed, and all related permits. LICENSES AND PERMITS Contractor shall apply for and obtain all necessary permits as required by the City and all other regulatory agencies including Federal, State, and County jurisdictions, including the Orange County Fire Authority. City permits will be "no fee" permits. All fees required by other jurisdictions shall be the responsibility of the contractor. OWNERSHIP Fueling Station: Contractor to pay for, provide and install equipment (bulk storage tank, dispensing unit, motor /pump, key card system), which will be property of oontractor for the term of this Agreement. When Agreement period ends, Contractor shall remove said equipment from site. Commodity Purchase: City of Santa Ana will purchase propane fuel for City of Santa Ana Fleet Service vehicles at agreed upon cost. Contractor shall contract independently with private companies for their fuel purchase. Contractor shall obtain business and seller's permits as outlined in RFP 13 -012. Propanesupply2 /24114 EXHIBIT B PRICE PROPOSAL February 5, 2014 City of Santa Ana 20 Civic Center Plaza Santa Ana, Ca 92702 Dear Suzi Furjanic / AIA,LEED Green Associate,Assoc. PL Planner; Re: Now propane Fueling Station -Fleet Services This letter is in response to your email dated February 4, 2014 to the following questions in bold. Will we purchase fuel monthly? Will the rack price be revisited and taken into account at that time. Is "rack price" the correct language to use? Arro Autogas will bill the City of Santa Ana twice a month for all transactions during any two week period. All transactions will be recorded through the on -site Fuel Master Unit. The price Arro quoted on RFP #13 -012 was (Propane price to be $0.30 over Arro Autogas's laid in cost on date of delivery + taxes) Laid in is what it cost to truck the propane from the oil refinery to our Pomona facility, currently laid in is $0.11. This equals a total margin /delivery cost of $0,41. The correct language is "AePEX Los Angeles rack on the date of transaction ". Did we agree that we would pay: Rack price + .30 ( +tax) for 0 -50k gallons Rack price + .25 (+tax) for 50 -75k gallons Rack price + .20 ( +tax) for 75k+ gallons Yes, we will offer a discount for volume as stated above. The discount will be based on gallons sold to the City of Santa Ana during each and every twelve month period of the five year term. The gallons will be calculated once the propane infrastructure is installed and approved for service by all local jurisdictions. This is not a cumulative number, but based on twelve months. The discount will be as follows: AePEX LA Rack +$0.41( +tax) for 0- 50,000 gallons within 12 months as described above. AePEX LA Rack +$0.36( +tax) for 50,001. 75,000 gallons within 12 months as described above. AePEX LA Rack +$0.31( +tax) for 75,001 + gallons within 12 months as described above. Thank You, Ted Olsen Market Manager Arro Autogas Propanesupply2/24N 4 L o %J — "13 25G -14 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: PILOT PROGRAM FOR VALET PARKING SERVICES IN THE DOWNTOWN CITY MAN GER RECOMMENDED ACTION 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 Authorize the City Attorney to prepare and City Manager and Clerk of the Council to execute a license agreement with the selected vendor for a six -month pilot program for valet parking services in Downtown Santa Ana, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION This staff report provides background information and recommends an approach to provide for a six -month pilot program for valet parking services in Downtown Santa Ana. The City currently does not have a policy or procedure that addresses valet parking services in the downtown area. However, valet parking services may provide an advantage to the area, enhance the shopping experience in Downtown Santa Ana and provide an overall benefit by: • Providing a greater convenience for customers of the Downtown; • Extending business to the curb and improve customers' overall shopping experience; • Creating a positive customer service with the objective of repeat business; • Increasing overall parking capacity, which helps meet the demand. Over the last several months, staff has met with the YOST Theatre to discuss the possibility of introducing valet parking services. The initial request from the YOST Theater was to operate valet parking from 8:00 p.m. to 2:00 a.m. Thursdays through Saturdays with a drop off /pick up location at the city -owned surface lot located on Third and Bush Streets (Exhibit 1). It is anticipated that a private agreement with a nearby business /parking lot owner would be entered into for the use of parking overflow vehicles. Staff research indicated that the City of Huntington Beach has successfully run city- operated downtown valet parking services. Cities such as Anaheim, Costa Mesa, Fullerton and Laguna Beach have allowed privately operated valet parking services through an established approval process. 25H -1 Valet Parking Services Pilot Program March 18, 2014 Page 2 City staff comprised of Community Development, Planning, Public Works, Police, and City Attorney's Office has reviewed the best way to execute the valet parking services and has determined that using the city's licensing agreement is the best approach to allow a vendor to operate valet parking on city -owned property, such as the Third and Bush surface lot. Community Development Agency staff will procure three informal bids from parking management companies to implement the six -month pilot program for valet parking services and the City Manager will be authorized to enter into a licensing agreement with the most qualified vendor. Included in the bids will be a plan that specifies how all city expenses will be covered by the valet parking revenue and will detail how the City will participate in revenue sharing. The license agreement will be effective for a six -month period. If the program is successful, staff may negotiate a longer term agreement for City Council approval and begin analyzing where additional valet parking services can be offered throughout the City. The Finance, Economic Development and Technology Council Committee had the opportunity to review the details of the program at its special meeting on February 24, 2014. Staff will also outreach to the two downtown business associations, Downtown Incorporated and Santa Ana Business Council, for assistance in informing local businesses and patrons of this service, and also to provide feedback and suggestions for improvements to the program. FISCAL IMPACT There is no fiscal impact associated with this action. iwarc ivioney Economic Developmer) t ecialist III Community Developr&n Agency MM /kg Exhibit: 1. Third and Bush Parking Lot Map 25H -2 QL11 rr - 1 -J W 0 _ _ ' _ IA r ow I C � f 11I 25H -3 Y w ! r 25H -4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2014 I11111it" LOAN AGREEMENT WITH 940 MINNIE, LP CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 18' Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO _ FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager or his designee and the Clerk of the Council to execute a loan agreement with 940 Minnie, LP for the acquisition and rehabilitation of a multi - family property located at 940 S. Minnie Street in an amount not to exceed $1,422,000, subject to nonsubstantive changes approved by the City Manager and City Attorney. COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION RECOMMENDATION At its regular meeting on February 18, 2014, by a vote 6:0, the Community Redevelopment and Housing Commission recommended that the City Council authorize the City Manager or their designee and the Clerk of the Council to execute a loan agreement with 940 Minnie, LP for the acquisition and rehabilitation of a multi - family property located at 940 S. Minnie Street in an amount not to exceed $1,422,000. DISCUSSION On October 22, 2013, staff distributed a notice announcing the availability of a Request for Proposals (RFP) soliciting proposals for the development of an affordable rental housing project. The RFP indicated that the City would consider proposals for acquisition and rehabilitation projects. It also indicated that the City had approximately $1.5 million in federal HOME Program funds available for commitment to a project. It identified a number of criteria that would be used to evaluate proposals, including the project readiness, proposed levels of affordability, the location of the proposed project, the leveraging of City funds with outside sources, and experience and track record of the development team in both developing and managing affordable projects. The RFP was published on the City's website, and 74 electronic letters and 115 hard copy letters announcing its availability were sent to individuals and firms who had previously requested to be informed of development opportunities. Four developers submitted questions regarding the RFP, yet only one proposal was received. 251 -1 Loan Agreement with 940 Minnie LP March 18, 2014 Page 2 The City's review team was made up of senior staff from the Planning and Building Agency, the Community Development Agency's Successor Agency, and Housing Development Divisions. The team met on January 8, 2014 to review the proposal. It was determined that the proposal was fully compliant with the submission requirements of the RFP, and unanimously recommended that it be submitted to City Council for approval. The development team is composed of Orange Housing Development Corporation (OHDC) and C &C Development. They have tentatively chosen to name their partnership 940 Minnie, LP. Over the past twenty years, OHDC and C &C Development have partnered with each other and with the City on many successful affordable housing projects. The proposed project, located at 940 S. Minnie Street (Exhibit 1), will build on the City's existing focus in the Cornerstone Village neighborhood. The Minnie Street project is adjacent to other affordable housing properties currently owned by the developer. The acquisition and rehabilitation will assist in the long -term stabilization of the neighborhood and promote the City's goal of providing long -term, affordable housing, as well as assist in meeting the affordable housing goals as identified in the Housing Element and Consolidated Five Year Plan. The proposed project will be the twentieth building in the Cornerstone Village neighborhood that has been acquired and rehabilitated by OHDC. As part of the rehabilitation, the partnership is proposing to reconfigure the ten one - bedroom units into eight units. The proposed unit mix and rent restrictions are as follows: The proposed rents are the amount allowed pursuant to the Tax Credit Financing and are lower than what is allowed under HOME regulations. Therefore, the rent will be the lowest between tax credit and HOME regulations. The total project cost to acquire, rehabilitate and provide the proposed level of affordability in the building is $2,038,631. The tables below summarize the proposed funding sources and anticipated costs of the projects: Permanent Funding Sources 50% AMI Unit Size Very Low Income No. proposed Rent City of Santa Ana — HOME Funds $ 1,422,000 Units $ 2,038,631 One Bedroom 4 $814 Two Bedroom 2 $976 Three Bedroom 2 $ 1,110 The proposed rents are the amount allowed pursuant to the Tax Credit Financing and are lower than what is allowed under HOME regulations. Therefore, the rent will be the lowest between tax credit and HOME regulations. The total project cost to acquire, rehabilitate and provide the proposed level of affordability in the building is $2,038,631. The tables below summarize the proposed funding sources and anticipated costs of the projects: Permanent Funding Sources Amount Permanent Loan $ 500,000 Developer Equity $ 116,631 City of Santa Ana — HOME Funds $ 1,422,000 TOTAL $ 2,038,631 251 -2 Loan Agreement with 940 Minnie LP March 18, 2014 Page 3 Project Costs Amount Land Acquisition Costs $ 1,050,000 Construction Costs $ 496,000 Relocation $ 196,204 Additional Soft Costs $ 145,417 Developer Fee $ 151,010 TOTAL $ 2,038,631 The HOME funds will be provided by means of a 55 -year City loan carrying a 3 percent interest rate and payable by residual receipts (Exhibit 2). The Planning Commission approved a Density Bonus Agreement (DBA) for the proposed project on February 24, 2014. The DBA allows for an increase in density over the existing allowed under the R -3 zoning, and deviations from the City's parking standard, both of which are permitted under the State's Density Bonus Law. ENVIRONMENTAL IMPACT The proposed project is exempt per National Environmental Policy Act (NEPA) requirements. In accordance with the California Environmental Quality Act (CEQA), the proposed project is categorically exempt from CEQA review per Section 15301, Class 1. The Class 1 exemption allows repair, maintenance, and minor alterations to existing private structures where there is no expansion of use. A Notice of Exemption for Environmental Review No. 2014 -9 was filed on February 28, 2014. A subsidy layering analysis has been completed. FISCAL IMPACT Funds are available in the HOME Program account in the amount of $1,422,000 (account no. 13018780 - 69152). APPROVED AS TO FUNDS AND ACCOUNTS: Shelly Lqodry-BayleJ Francisco Gutierrez Housing Manager Executive Director Community Development Agency Finance & Management Services Agency SLB /kg Exhibit: 1. Project Site Map 2. Loan Agreement 251 -3 251 -4 WAKEHAM PROPOSED PROJECT LOCATION 940 SOUTH MINNIE STREET LL z z c C EXHIBIT 1 251 -5 Q H N D Z H ill sr, w J W z W ~ W Lu � F U w AVENUE V) -� �z QW w r J W - U � Z J W W LL Q SIN LE -FA ILY H RESIDENCE LL w J Q w J W Z � Q LL Q i w Lu MULTI - FAMILY RESIDENCE " Ln LL z z c C EXHIBIT 1 251 -5 Q H N D Z H ill sr, w J W z W ~ W Lu � F U w O w V) F w J W - U � Z r W J H LL J W Z � Q LL Q F Z Q V) LL z z c C EXHIBIT 1 251 -5 Q H N D Z H ill sr, 251 -6 EXHIBIT 2 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 6103 & 27383 When Recorded Mail to: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M -37) P.O. Box 1988 Santa Ana, California 92702 Attention: Housing Manager SPACE ABOVE THIS LINE FOR RECORDING USE FREE RECORDING REQUESTED [Government Code Section 6103] LOAN AGREEMENT by and between the CITY OF SANTA ANA Mm 940 MINNIE, LP A California Limited Partnership (940 S. Minnie Street, Santa Ana, California) Dated: May 2014 251 -7 LOAN AGREEMENT HOME PROGRAM THIS LOAN AGREEMENT (the "Agreement') dated, for identification purposes only, as of May _, 2014, is made and entered into by and between the City of Santa Ana, a charter city and municipal corporation (referred to herein as "City ") and 940 Minnie, LP, a California limited partnership with reference to the following: RECITALS: A. City has received an allocation of funds from the United States Department of Housing and Urban Development ( "HUD ") under the HOME Investment Partnership Program (the "HOME Program ") (42 U.S.C. §12701, et seq.,) to be used in accordance with applicable statutory requirements and regulations (the "HOME Regulations ") (24 CFR Part 92); B. Among the purposes of the HOME Program are (1) to expand the supply of decent, safe, sanitary, and affordable housing, with primary attention to rental housing, for very low- income and low- income Americans; and (2) to provide participating jurisdictions, on a coordinated basis, with the various forms of federal housing assistance, including capital investment, mortgage insurance, rental assistance, and other federal assistance, needed (a) to promote the development of partnerships among the federal government, states and units of general local government, private industry, and nonprofit organizations able to utilize all available resources to provide more of such housing, and (b) to expand the capacity of nonprofit community housing development organizations to develop and manage decent, safe, sanitary and affordable housing; C. Developer (as 'Buyer ") has entered into an agreement (the "Purchase Contract') to purchase certain property commonly known 940 S. Minnie Street, within the City of Santa Ana, California, and legally described in Exhibit A attached hereto (the "Property "). The loans referenced herein shall assist in the acquisition and rehabilitation of said Property that is improved with a multifamily residential housing development. D. In furtherance of the HOME Program, Developer has applied to City for a loan with which to: 1. provide deeper affordability for a longer term, as well as acquire and rehabilitate the Property, and 2. thereafter to maintain, operate and professionally manage the Property as decent, safe, sanitary and affordable rental housing. E. City, on certain terms and conditions, desire to make such loan to Developer in order to make possible the acquisition and rehabilitation of the Property, thereby eliminating blight while expanding the supply of decent, safe, sanitary and affordable housing. 2 251 -8 F. If there is any discrepancy between Federal and State guidelines with regard to any of the terms and conditions contained herein, the more stringent shall apply. G. The Loan Agreement and all of its attachments shall be enforceable by City in accordance with the terms thereof. Each of the Loan Agreement, the Affordability Restrictions on Transfer of Property, the City /HOME Loan Note and the City /HOME Deed of Trust provide a means of enforcement by the City if Developer is in breach of its obligations hereunder and thereunder, including liens on the Property, use and deed restrictions and covenants running with the land [24 CFR 92.504 (c) (13)]. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, City and Developer agree as follows: 1. DEFINITIONS AND INTERPRETATION 1.1 Defined Terms. All capitalized terms used herein, including, without limitation, in the Recitals above and in all other Project Documents, unless otherwise expressly defined, are defined where first used in this Agreement and /or as set forth in this Article 1. "Affordable Housing" means housing operated in accordance with the requirements of 24 CFR 92.252 and the rents governed by HUD. "Affordability Restrictions on Transfer of Property" means that certain document affecting real property benefiting the City, attached hereto as Exhibit G. "Affordable Rent" means the monthly rents that are set forth in more detail in Section 7 of this Agreement. "Building Permit" means the building permit(s) issued by City and required for the rehabilitation, if any. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 30. "Certificate of Completion" has the meaning set forth in Article 17. "City" means the City of Santa Ana, California, a charter city and municipal corporation. "City /HOME Loan" means the loan to be made to Developer by City from HOME funds pursuant to Article 5 of this Agreement. "City /IIOME Loan Deed of Trust" means the deed of trust encumbering 251 -9 the Property, in the form attached hereto as Exhibit E, to be executed by Developer pursuant to Section 5.13.2 in order to secure the Loan Note. "City /HOME Loan Note" means that certain promissory note in the original principal amount of $1,422,000.00, in the form attached hereto as Exhibit F, and to be executed by Developer in favor of City to evidence the obligation of Developer to repay the City /HOME Loan. "Close of Escrow" shall mean the date upon which the City /HOME Loan Deed of Trust is recorded in the Official Records of the County. "Closing Statement" means the final statement of Developer's Escrow account for the purchase and sale of the Property pursuant to the Purchase Contract. "County" means the County of Orange, California. "Developer" means 940 Minnie, LP, a California limited partnership, its successors and assigns. "Developer's Representative" shall mean the Chief Executive Officer of the General Partner of Developer or his /her designee. "Escrow" means Escrow No. 209550 with Arwen Estelle at Ticor Title Company of California, 18302 Irvine Blvd., Suite 100, Tustin, CA 92780. "Escrow Holder" means Ticor Title Company of California, 18302 Irvine Blvd., Suite 100, Tustin, CA 92780. The Escrow Officer is Arwen Estelle. "Event of Default" has the meaning set forth in Section 20.1. "Executive Director" means both the the Executive Director of the Community Development Agency, or his/her designee "General Partner(s)" means the General Partners of Developer, consisting of Orange Housing Development Corporation (the Managing General Partner) and C &C, LLC (General Partner) and their respective successors and assigns. "Governmental Authority" means any governmental or quasi governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility. "Hazardous Materials" means flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et sec., and the 251 -10 Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. "HOME Compliance Period" is for a period of fifteen (15) years. "HOME Program" has the meaning set forth in Recital "A" above "HOME Regulations" has the meaning set forth in Recital "A" above. "HUD" means the United States Department of Housing and Urban Development and any successors or assigns thereof. "Improvements" means all improvements and fixtures now and hereafter comprising any portion of the Property, including, without limitation, landscaping, trees and plant materials; and offsite improvements (including, without limitation, streets, curbs, storm drains, and adjacent street lighting). "Indebtedness" of a person means (a) all indebtedness for borrowed money, (b) notes payable and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money, (c) any obligation for the purchase of property or services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or (ii) evidenced by a note or similar instrument, and ( d) all recourse and all non - recourse indebtedness secured by any Lien on any property or asset of such person (whether or not assumed by such person). "Iridemnitees" has the meaning set forth in Section 14.5. "Laws" means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Authority. "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). "Limited Partner" means the Limited Partners of Developer, OHDC Properties I, LLC and C &C Properties Group I, LLC, and their successors and assigns. "Loan Documents" means, collectively, this Agreement, the City /HOME Loan Note, the City /HOME Deed of Trust, the Affordability Restrictions on Transfer of Property, and any other agreement, document, or instrument that the City requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. 251 -11 "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HUD. Also may be referred to interchangeably in the Loan Documents as "Area Median Income" or "AMP'. "Partnership Agreement" means the Agreement of Limited Partnership of 940 Minnie, LP dated "Permitted Encumbrances for the Affordable Housing Restrictions" means, collectively, the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the Executive Director in writing. "Permitted Encumbrances for the City Loan Deed of Trust" means, collectively, the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the Executive Director in writing. "Project" means the acquisition and rehabilitation of the Property by Developer pursuant to this Agreement. "Project Budget" means the line -item budget for the Project attached hereto as Exhibit C, as modified from time to time in accordance with this Agreement. "Project Costs" means all costs of any nature incurred in connection with the Project in accordance with generally accepted accounting principles. "Property" means the Property that is located at 940 S. Minnie Street, within the City of Santa Ana, and is more fully described in the "Legal Description" of the Property attached hereto as Exhibit A and incorporated herein by reference. "Senior Lender" means Senior Loan Note(s). or any other holder of the "Senior Loan" shall mean the senior loan being made by concurrent to the City Loan for payment of a portion of the acquisition and rehabilitation costs, and shall include any subsequent loan that refinances the initial Senior Loan. "Senior Loan Deed of Trust" means the deed of trust securing the Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan. "Senior Loan Note" means the promissory note evidencing the Senior Loan from 251 -12 "Term" the terns and conditions contained herein shall remain in effect for fifty -five (55) years. "Very Low Income" means an adjusted income which does not exceed fifty percent (50 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. 1.2 Singular and Plural Terms. Any defined term used in the plural in this Agreement or any other City Loan Document shall refer to all members of the relevant class and any defined term used in the singular shall refer to any number of the members of the relevant class. 1.3 References and Other Terms. Any reference to this Agreement or any Loan Document shall include such document both as originally executed and as it may from time to time be modified. References herein to Articles, Sections and Exhibits shall be construed as references to this Agreement unless a different document is named. References to subparagraphs shall be construed as references to the same Section in which the reference appears. The term "document' is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terms "including" and "include" mean "including (include) without limitation." 1.4 Exhibits Incorporated. All attachments and exhibits to this Agreement, as now existing and as the same may from time to time be modified, are incorporated herein by this reference. 2. [RESERVED] SCOPE OF WORK/ PROJECT BUDGET A "Scope of Work" for the Property is attached hereto as Exhibit B. Any material change to the Scope of Work requested by the Developer shall be subject to the prior written approval of the Executive Director. A line -item budget for the Project, including a summary statement of sources and uses of funds, is incorporated into Exhibit C (the 'Project Budget'). Any material change to the Project Budget requested by Developer shall be subject to the prior written approval of the Executive Director. 4. [RESERVED] 5. LOANS A. CITY LOAN: 251 -13 1. Amount and Purpose. Subject to the terms and conditions of this Agreement, City agrees to make a loan of HOME funds to Developer in the principal amount of up to $1,422,000 (the "City Loan ") for the acquisition and rehabilitation of the Property. 2. City /HOME Note and Deed of Trust. The City /HOME Loan shall be evidenced by the City/HOME Loan Note in the form attached hereto as Exhibit F. The City Loan shall be secured by the City /HOME Loan Deed of Trust in the form attached hereto as Exhibit E. The City /HOME Deed of Trust shall be a deed of trust encumbering the Property, subordinate to the Senior Loan(s) made to Developer. 3. City /HOME Loan Terms. The terms and conditions of the City /HOME Loan are as set forth in the City/HOME Loan Note which is a residual receipts note. The HOME compliance period is fifteen (15) years, commencing on the date that all work is complete and the Property is fally occupied. 6. CONDITIONS TO DISBURSEMENT OF LOAN PROCEEDS 6.1 Conditions Precedent. City's obligation to disburse the Loan Amount is subject to the satisfaction, or waiver by the Executive Director, of the following conditions precedent: ( a) Loan Documents. Developer shall have delivered to the Escrow Holder, signed by the authorized officer or officers of Developer, with such signature(s) acknowledged where necessary, each of the following documents: (i) the Loan Agreement; (ii) The City/HOME Loan Note; (iii) The City/HOME Deed of Trust, (iv) The Affordability Restrictions on Transfer of Property; and (b) Title Insurance. City shall have received an LP -10 ALTA Lender's loan policy of title insurance (1970 edition), or evidence of a commitment therefore satisfactory to City, issued by First American Title Insurance Company and in form and substance satisfactory to City, together with all endorsements and binders required, naming City as the insured, in a policy amount of not less than the City /HOME Loan Amount, showing Developer as the fee owner of the Property and insuring the City/HOME Deed of Trust to be valid priority liens on the Property. The City /HOME Loan Note and Deed of Trust shall be subordinate to the Senior Loan Note and First Deed. (c) Affordability Restrictions on Transfer of Propert y. Developer shall have delivered to the Escrow Holder, in the form attached hereto as Exhibit G, the Affordability Restrictions on Transfer of Title pursuant to which, among other things, Developer agrees that the Property shall be used only for decent, safe, sanitary and U 251 -14 affordable rental housing pursuant to the affordability requirements of Code of Federal Regulations ( "CFR ") section 92.252 or 92.254 and California Health and Safety Code ( "H &S ") sections 50052.5, as applicable. (d) Documents Recorded. This Loan Agreement, the City /HOME Loan Deed of Trust and the Affordability Restrictions on Transfer of Property shall have been recorded in the Official Records of the County. (e) Request for Notice. For the benefit of City, Escrow Holder shall have recorded a request for notice of default of the Senior Loan (the "Request for Notice of Default "). (f) Insurance. City shall have received evidence satisfactory to the City Attorney that all of the policies of insurance required by Section 19 of this Agreement are in full force and effect. (g) Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other Loan Documents shall be correct as of the Close of Escrow as though made on and as of that date, and if requested by the Executive Director, City shall have received a certificate to that effect signed by Developer's Representative. (h) No Default. No Event of Default by Developer shall have occurred, and no event shall have occurred which, with the giving of notice or the passage of time or both, would constitute an Event of Default by Developer under this Agreement, and if requested by the Executive Director, City shall have received a certificate to that effect signed by Developer's Representative. 6.2 Disbursement Procedures for LoaWs A portion of the Loan proceeds shall be disbursed through Escrow to finance the acquisition of the Property, with other proceeds being used for the rehabilitation (as evidenced in Exhibit Q. The Loan proceeds shall not be used for any purpose other than for acquisition costs of the Property and /or rehabilitation/construction costs, including a Developer fee and soft costs related to development of the Project (costs all subject to City's prior review). 6.3 [Intentionally Omitted] 6.4 [Intentionally Omitted] 6.5 Any Disbursement. City's obligation to make any disbursement of the Rehabilitation Portion (including the first and final disbursements) is subject to the satisfaction of the following conditions precedent: (a) Satisfactory Progress. The Executive Director shall be satisfied, based on his/her own inspections or other reliable information, that the rehabilitation is 251 -15 progressing satisfactorily in conformance with all applicable laws and other requirements (including HOME regulations). (b) Condition of Title. Either (i) the Executive Director reasonably believes that no event has occurred since the Close of Escrow that would give rise to a colorable claim against the Property (e.g., a mechanic's lien) superior to the claim of City against the Property with respect to the subject disbursement, or (ii) City must have received, at Developer's expense but payable out of the Rehabilitation Proceeds, from the title insurer who issued City's LP -10 Title Policy, all endorsements thereto then reasonably required by City. (c) Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other City Loan Documents shall be correct as of the date of the disbursement as though made on and as of that date. (d) No Default. No Event of Default by Developer shall remain uncured and no event shall have occurred which, with the giving of notice or the passage of time or both, would constitute an Event of Default by Developer. 6.6 Final Disbursement. City's obligation to disburse that portion of the rehabilitation portion retained pursuant to Section 6.12 is subject to the satisfaction of the following additional conditions precedent: (a) Rehabilitation Comte. The rehabilitation shall be complete. (b) Certificate of Occupancy Issued. Any portion of the rehabilitation requiring inspection or certification by any Governmental Authority shall have been inspected and certified as complete. Developer shall request that the Building Department issue a Certificate of Occupancy, a copy of which shall be delivered to the Executive Director, in order for final disbursement to occur. (c) Lien Free. At least one of the following shall have occurred: (i) Thirty -five (35) days shall have passed since the recording of a valid notice of completion for the rehabilitation, and no mechanic's or material man's lien shall be outstanding; or (ii) Ninety -five (95) days shall have passed since actual completion of the rehabilitation, and no mechanic's or materialman's lien shall be outstanding, or Developer shall have bonded over any such lien to City's reasonable satisfaction. 6.7 Waiver of Conditions. The conditions set forth pertaining to City's obligation to make disbursements of the rehabilitation portion are for City's benefit only and the Executive Director may waive all or any part of such rights by written notice to Developer. 6.8 Disbursement Requests. The rehabilitation proceeds shall be 10 251 -16 disbursed on a line -item by line -item basis in accordance with the Project Budget and subject to the conditions in this section. In no event shall City have any obligation to disburse any amount for any item in excess of the amount allocated to such item in the Project Budget. Disbursements shall be made only upon Developer's written request in the form of a Disbursement Request showing all costs which Developer intends to fund with such disbursement, itemized in such detail as City may reasonably require, accompanied in each case by (a) invoices and lien releases satisfactory to City, including in any event partial lien releases executed by each contractor and subcontractor who has received any payment for work performed, and (b ) all other documents and information reasonably required by City. Disbursement Requests shall be submitted no less than ten (10) Business Days prior to the date of the requested disbursement, and shall not be submitted more often than monthly. Prior to each disbursement by City of proceeds of the City Loan, Borrower shall deliver to City and to Bank a draw request ( "Draw Request "), and all required supporting information as set forth in the Loan Documents or as otherwise reasonably required by City or Bank in order to provide information for evaluating the requested disbursement pursuant to customary construction lending practices of institutional lenders in Southern California. City and Bank shall notify the other and Borrower of approval or disapproval of each Draw Request within five (5) business days after receipt of the Draw Request, using the Bank's "Disbursement /Change Order Approval Notice ". City and Bank shall have the right, but not the obligation, to discontinue processing Draw Requests unless and until receipt of notification from the other of approval or disapproval of each outstanding Draw Request. 6.9 Manner of Disbursement. City may make any disbursement by check payable to Developer; or on a voucher basis; or by check payable jointly to Developer and any contractor, subcontractor or other claimant; or directly to any such claimant; or by any other means reasonably selected by City. Disbursement will be made fifteen (15) days from approval. 6.10 Cost Overruns. In the event that, at any time and for any reason, (a) the actual cost reasonably estimated by City or Developer to be required to complete all matters included in any line item in the Project Budget exceeds the amount allocated to that line item in the Project Budget, (b) rehabilitation costs for any matters not covered by a specific line item have been or will be incurred, or (c) the undisbursed portion of the rehabilitation portion is or may be insufficient to pay all rehabilitation costs that may be payable under the City Loan Documents or otherwise in connection with the rehabilitation, Developer shall, within ten (10) days after it receives written notice thereof from City of any of the foregoing matters, do one or more of the following: (a) provide satisfactory evidence to City that Developer has previously paid such excess or otherwise provided for such insufficiency (collectively, the "Excess Cost ") with funds from a source other than the City Loan; (b) reallocate sufficient funds to pay the Excess Cost from funds 11 251 -17 allocated to "Contingency" in the Project Budget; provided, however, that the Executive Director's consent to any such reallocation shall be required; or (c) deposit an amount equal to the Excess Cost in a non - interest bearing account (the "Overrun Account ") with City from which withdrawals may be made only with the consent of the Executive Director but which will be exhausted prior to any further disbursement for any line item, so that any resulting surplus in any line item of the Project Budget will then be reallocated to the line item(s) in which the Excess Costs are expected to be incurred. City shall have no obligation to make further disbursements until Developer has paid or otherwise provided for the overrun as required above. Amounts deposited by Developer in the Overrun Account for any Excess Costs shall be disbursed by City prior to the disbursement of any remaining rehabilitation portion proceeds in the manner described in subsection 93(c). 6.11 Cost Savings. Upon completion of and disbursement for all matters covered by any line items in the Project Budget, any remaining undisbursed amounts allocated to that line item shall be reallocated to "Contingency" and thereafter be available for disbursement in accordance with the terms of this Agreement. 6.12 Retainage. City will withhold a Retainage of 10% from each Disbursement for each of the hard cost line items of the project cost breakdown (and other line items thereof designated for withholding of retainage) until all conditions to the final disbursement of hard costs have been satisfied. In lieu of City's withholding Retainage, Developer can by written notice to City elect not to draw any overhead or profit as would otherwise be permitted under the Construction Contract until such time as Retainage would otherwise have been released. City shall not retain funds for building materials purchased by Developer for which Developer supplies documentation to City proving payment in full or for soft costs. 6.12.1 Holdback. The retainage otherwise available for disbursement shall be subject to a holdback of one hundred twenty -five percent (125 %) of the estimated cost (as determined by the Executive Director) for "punch- list" items. Such holdback will be released when all punch -list items have been completed to the satisfaction of City. 6.13 Waiver of Disbursement Conditions. Unless City otherwiseagrees in writing, the making by City of any disbursement with knowledge that any condition to such disbursement is not fulfilled shall constitute a waiver of such condition only with respect to the particular disbursement made 6.14 Modification of Disbursement Conditions and Procedures. The Executive Director shall have the authority to modify the disbursement conditions and procedures set forth herein in order to conform them to the payment provisions of the Rehabilitation Contract. 12 251 -18 6.15 Other Terms and Conditions of Loan. A. The Note shall become immediately due and payable, in the event of any of the following: (1) failure to complete the Project within four (4) years of the recording date; (2) HOME rental units must achieve initial occupancy within 18 months of project completion. (3) violation of any of the use covenants and restrictions contained in this Agreement after the expiration of any applicable notice and cure periods; (4) an Event of Default by Developer which is not timely cured after expiration of any applicable notice and cure periods pursuant to the terms of this Agreement. 6 .16 Closing Costs and Fees. Developer shall pay (a) all escrow fees and charges, (b) all recording fees and charges on any document recorded pursuant to this Agreement, and (c) the premium for the title insurance required hereunder. 7. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 7.1 Use Covenants and Restrictions. A. Developer agrees and covenants, which covenants shall run with the land and bind Developer, its successors, its assigns and every successor in interest to the Property that Developer will make all rental units on the Property available to very low households at rents affordable to such households for fifty -five (55) years from the effective date of this Agreement. The HOME restrictions for the eight (8) HOME assisted units shall be enforced until the date that is fifteen (15) years after the date on which the City reports the Project as complete to the Department of Housing and Urban Development. B. The Project shall consist of eight (8) HOME assisted units total, with 4 one - bedroom units, 2 two - bedroom units and 2 three - bedroom units. C. At initial lease up, households in the HOME assisted units cannot earn more than 50% of AMI, however existing tenants at the Property who are otherwise eligible under the HOME Program may continue their tenancy at the Property. Rental increases shall be in conformance with federal and state law. After the fifteen (15) year HOME compliance period, the City shall require that the units remain affordable, with rents calculated based on assumed household size at the same income levels D. All of the units will be restricted to occupancy by fifty percent (50 %) of the Area Median Income (AMI). Current residents whose incomes exceed eighty percent (80 %) of 13 251 -19 the AMI will be increased to either thirty (30 %) percent of their monthly household income or market rent for the neighborhood, whichever is lower. E. Maximum Occupancy will be two (2) people per room plus one (1). Example for a two - bedroom unit, five (5) people would be maximum occupancy. F. Affordable rents shall be governed by California Health and Safety Code Sections 50052.5 and 50053(b)(2), and as provided in the HOME Regulations 24 CFR section 92.2. G. Developer must have a written lease between tenant and owner for a period of at least one year, unless a shorter period is mutually agreed upon. Leases must be consistent with HOME Regulations 24 CFR section 92.209(g). H. Rents Durine Construction/Rehabilitation (a) All units shall be charged not more than the Low HOME rent, as amended from time to time (currently $903.00 for a one - bedroom unit). 7.1 Affordable Gross Startine Rents (Less Reasonable Utility Allowance): Initial rents may be recalculated to allowable rental amounts at the time of initial lease -up following completion of construction in accordance with any changes in allowable rent and income tables as published by HUD. A. HOME Assisted Units # of Units Max Gross Monthly Rent Very Low 1 Bedroom 4 $ 903 2 Bedroom 2 $ 1,083 3 Bedroom 2 $ 1,252 (1) In no event shall the rent charged to the HOME assisted units be more than that amount of the low rent as published by HUD, as amended from time to time. 7.2 Rent increases: On an annual basis, the City shall provide the Developer with the maximum allowable schedule of rents for the Property. In no event can Developer charge any tenant more than such amount. 7.3 Prohibited Fees. The Developer and subsequent owner is prohibited from charging fees that are not customary, consistent with HOME Regulations 24 CFR section 92.504(c)(3)(xi). The Developer and subsequent owner can charge reasonable application fees to prospective tenants; other fees only to the extent that they are reasonable and customary for the project area; and fees for services provided to tenants, provided that these services are not mandatory. 14 251 -20 7.4 Maintenance of the Property. Solely at Developer's expense, Developer agrees to maintain the Property in a clean and orderly condition and in good condition and repair and keep the Property free from any accumulation of debris and waste materials. If at any time Developer fails to maintain, or cause to be maintained, the Property as required by this section, and said condition is not corrected after the expiration of a reasonable period of time not to exceed thirty (30) days from the date of written notice from the City, unless such condition cannot reasonably be cured within thirty (3 0) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure, the City may perform the necessary maintenance and Developer shall pay all reasonable costs incurred for such maintenance. The City shall inspect the Property annually after the date of issuance of the Certificate of Completion as described in Article 17 of this Agreement. During the affordability period, the Property must meet all applicable State and local codes. The Property must be free of all health and safety defects during the affordability period. 7.6 Obligation to Refrain from Discrimination. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, mental or physical disability, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall Developer itself or any person claiming under or through him establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. The foregoing covenants shall run with the land and shall remain in effect for the term of the Agreement. 8. DEFAULTS AND REMEDIES 8.1 Event of Default. Failure or delay by either party to perform any term of provision of this Agreement within the time periods provided herein for such performance constitutes a default under the Agreement. If any party defaults in performance of its obligations, covenants or agreements hereunder, the defaulting party shall be entitled to cure the default in accordance with this section. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injure party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. The defaulting party must, within thirty (30) days following service of said written notice, commence to cure, correct or remedy such failure or delay and shall complete such cure, correction, or remedy with reasonable diligence. Upon a default by Developer which is not cured within thirty (30) days following service of said notice, unless such default cannot reasonably be cured within thirty (30) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure but no more than ninety (90) days, the City shall have the right to terminate this Agreement by delivery of written notice of termination to Developer. 8.2 Institution of Legal Actions. In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. 15 251 -21 8.3 _Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the right 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 rimes, of any other rights or remedies for the same default or any other default by the other party. 8.4 Damages. In the event that the City is liable for damages to Developer, such liability shall not exceed costs incurred by the Developer in the performance of this Agreement and shall not extend to compensation for loss of future income, profits or assets; provided, however, Developer's only remedy for any breach of this Agreement by the City shall be an action for specific performance of such party's obligations. 8.5 Nonrecourse Liability. Neither Developer, nor any partner of Developer, shall have any personal liability under this Agreement, or the attached Note and Deed of Trust, and any judgment, decree or order for the payment of money obtained in any action to enforce the obligation of Developer to repay the loan evidenced by such documents shall be enforceable against Developer only to the extent of Developer's interest in the Property. 9. GENERAL PROVISIONS AND WARRANTIES As a material inducement to City to enter into this Agreement, Developer represents and warrants as follows: 9.1 Formation, Qualification and Compliance. Orange Housing Development Corporation, the managing general partner of Developer (a) is a non -profit public- benefit corporation, validly existing and in good standing under the laws of the State of California, (b) has all requisite authority to conduct its business and own and lease its properties, and (c) is qualified and in good standing in every jurisdiction in which the nature of its business makes qualification necessary or where failure to qualify could have a material adverse effect on its financial condition or the performance of its obligations under the Loan Documents. Developer is in compliance with all laws applicable to its business and has obtained all approvals, licenses, exemptions and other authorizations from, and has accomplished all filings, registrations and qualifications with, any Governmental Authority that are necessary for the transaction of its business. 9.2 Execution and Performance of Loan Documents. 9.2.1 Developer has all requisite authority to execute and perform its obligations under the Loan Documents, 9.2.2 The execution and delivery of Developer of, and the performance by Developer of its obligations under, each Loan Document has been authorized by all necessary action and does not and will not: (a) require any consent or approval not heretofore obtained of any person having any interest in Developer; (b) violate any provision of, or require any consent or 16 251 -22 approval not heretofore obtained under, any articles of incorporation, by -laws or other governing document applicable to Developer; (c) result in or require the creation of any lien, claim, charge or other right of others of any kind (other than under the City Loan Documents) on or with respect to any property now or hereafter owned or leased by Developer; (d) violate any provision of any law presently in effect; or (e) constitute a breach or default under, or permit the acceleration of obligations owed under, any contract, loan agreement, lease or other agreement or document to which Developer is a party or by which Developer or any of its property is bound. 9.2.3 Developer is not in default, in any respect that is materially adverse to the interests of City under the Loan Documents or that would have any material adverse effect on the financial condition of Developer or the conduct of its business, under any law, contract, lease or other agreement or document described in sub- paragraph (d) or (e) of the previous subsection. 9.2.4 No approval, license, exemption or other authorization from, or filing, registration or qualification with, any Governmental Authority is required which has not been previously obtained in connection with: (a) the execution of Developer of, and the performance by Developer of its obligations under, the Loan Documents; and (b) the creation of the liens described in the Loan Documents. 9.3 Finaneial and Other Information. To the best of Developer's knowledge, all financial information furnished to City with respect to Developer in connection with the Loan (a) is complete and correct in all material respects as of the date of preparation thereof, (b) accurately presents the financial condition of Developer, and (c) has been prepared in accordance with generally accepted accounting principles consistently applied or in accordance with such other principles or methods as are reasonably acceptable to City. To the best of Developer's knowledge, all other documents and information furnished to City with respect to Developer, in connection with the Loans, are correct and complete insofar as completeness is necessary to give the City accurate knowledge of the subject matter. To the best of Developer's knowledge Developer has no material liability or contingent liability not disclosed to City in writing and there is no material lien, claim, charge or other right of others of any kinds (including liens or retained security titles of conditional vendors) on any property of Developer not disclosed in such financial statements or otherwise disclosed to City in writing. 9.4 No Material Adverse Change. There has been no material adverse 17 251 -23 change in the condition, financial or otherwise, of Developer since the dates of the latest financial statements furnished to City. Since those dates, Developer has not entered into any material transaction not disclosed in such financial statements or otherwise disclosed to City in writing. 9.5 Tax Liability. Developer has filed all required federal, state and local tax returns and has paid all taxes (including interest and penalties, but subject to lawful extensions disclosed to City in writing) other than taxes being promptly and actively contested in good faith and by appropriate proceedings. Developer is maintaining adequate reserves for tax liabilities (including contested liabilities) in accordance with generally accepted accounting principles or in accordance with such other principles or methods as are reasonably acceptable to City. 9.6 Governmental Requirements. Developer is in compliance with all laws relating to the Property and all Governmental Authority approvals, including zoning, land use, planning requirements, and requirements arising from or relating to the adoption or amendment of, any applicable general plan, subdivision and parcel map requirement; environmental requirements, including the requirements of the California Environmental Quality Act and the National Environmental Policy Act and the preparation and approval of all required environmental impact statements and reports; use, occupancy and building permit requirements; and public utilities requirements. 9.7 Riehts of Others. Developer is in compliance with all covenants, conditions, restrictions, easements, rights of way and other rights of third parties relating to the Property. 9.8 Litieation. There are no material actions or proceedings pending or, to the best of the Developer's knowledge, threatened against or affecting Developer or any property of Developer before any Governmental Authority, except as disclosed to City in writing prior to the execution of this Agreement. 9.9 Bankruptcy. To the best of Developer's knowledge, no attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings are pending or threatened against Developer, nor are any of such proceedings contemplated by Developer. 9.10 Information Accurate. To the best of Developer's knowledge, all information, regardless of its form, conveyed by Developer to City, by whatever means, is accurate, correct and sufficiently complete to give City true and accurate knowledge of its subject matter, and does not contain any misrepresentation or omission. 9.11 Conflicts of Interest. No member, official or employee of the City shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to this Agreement which affects his/her personal interests or the interests of any corporation, partnership or association in which he /she has a direct or indirect financial interest. The Developer warrants that it neither has paid nor given, nor will pay or give, any third party any money or other consideration for obtaining this Agreement. 18 251 -24 9.12 Nonliability of City Officials and Employees. No member, official or employee of the City shall be personally liable to the Developer in the event of any default or breach by the City or for any amount which may become due to Developer or on any obligations under the terms of this Agreement. 9.13 No Assignment. Developer expressly acknowledges and agrees that the City has only agreed to assist the Developer as a means by which to induce the rehabilitation/development of the Property. Accordingly, Developer further expressly acknowledges and agrees that this Agreement is a personal right of Developer that is neither negotiable, transferable, nor assignable except as set forth herein. Developer may assign some or all of its rights under the Agreement only with the prior written consent of the Executive Director (such consent not to be unreasonably withheld), except that no prior consent is necessary for an assignment by a limited partner of Developer to an affiliate, or as otherwise provided in the Deed of Trust. 9.14 Applicable Law. This Agreement shall be interpreted, governed and enforced under federal and state laws. 9.15 Third Parties. This Agreement is made for the sole benefit of Developer and the City and their successors and assigns, and no other person or persons shall have any rights or remedies under or by reason of this Agreement or any right to the exercise of any right or power of the City hereunder or arising from any default by Developer, nor shall the City owe any duty whatsoever to any claimant for labor performed or materials furnished in connection with the rehabilitation of the Property. 9.16 Control of Property. The parties acknowledge that neither the City has at anytime participated in any manner in the management or operation of the Property, and will not so participate at any time hereafter. 10. CONDITIONS FOR REHABILITATION 10.1 Permits and Approvals. Developer shall diligently obtain all permits, including all building permits, licenses, approvals, exemptions and other authorizations of Governmental Agencies required in connection with the rehabilitation and conversion of the Property. 10,2 Commencement and Completion of Rehabilitation. The rehabilitation shall be considered complete for purposes of this Agreement only when (a) all work described has been completed and fully paid for, and (b) all work requiring inspection or certification by Governmental Authority has been completed and all requisite certificates, approvals and other necessary authorizations (including required final certificates of occupancy) have been obtained. 10.3 Change Orders. The Rehabilitation Contract shall not be modified except pursuant to change orders. All change orders: 19 251 -25 (a) shall be in writing, numbered in sequence, signed by Developer and submitted to City prior to the proposed effectiveness thereof and accompanied by any working drawings and a written narrative of the proposed change. (b) Shall be subject to the Executive Director's and Bank's prior written approval of the Executive Director and Bank. 10.4 Entry and Inspection. At all times prior to completion of the rehabilitation, upon reasonable notice, City and their agents shall have (a) the right of free access to the Property and all sites away from the Property where materials for the rehabilitation are stored, (b) the right to inspect all labor performed and materials furnished for the rehabilitation, and (c) the right to inspect and copy all documents pertaining to the rehabilitation. 10.5 Compliance with Section 3 Clause. Section 3 of the Housing and Urban Development act of 1968, 12 U.S.C. 1701u, as amended by Section 915 of the Housing and Community Development Act of 1992 requires that economic opportunities generated by HUD financial assistance for housing and community development programs be targeted toward low- and very low- income persons. Whenever HUD assistance generates opportunities for employment or contracting, state and local grantees, as well as other recipients of HUD housing assistance funds must, to the greatest extent feasible, provide these opportunities to low- and very low- income persons and to businesses owned by or employing low- and very low- income persons. Section 3 applies to projects for which HUD's share of project costs exceeds $200,000 and contracts and subcontracts awarded on projects for which HUD's share or project costs exceeds $200,000 and the contract or subcontract exceeds $100,000. For purposes of this Section 3 Clause and compliance thereto, whenever the word "contractor" is used it shall mean and include, as applicable, the Developer, and its contractor and subcontractor(s), if any. The particular text to be utilized in any and all contracts of any contractor doing work covered by Section 3 shall be in substantially the form of the following, as reasonably determined by the City, or as directed by HUD or its representative, and shall be executed by the applicable contractor under penalty of perjury: "(a) The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 170lu ( "Section 3 "). The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD - assisted projects covered by Section 3, shall, to the greatest extent feasible, be directed to low -and very low- income persons [inclusive of Very Low Income Persons, Very Low Income Households, and Very Low Income Tenants served by the Project], particularly persons who are recipients of HUD assistance for housing. (b) The parties to this contract agree to comply with HUD's regulations in 24 CFR part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are 20 251 -26 under no contractual or other impediment that would prevent them from complying with the part 135 regulations. (c) The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this Section 3 clause, and will post copies of notices in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number of job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of person(s) taking applications for each of the position; and the anticipated date the work shall begin. (d) The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations 24 CFR part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135. (e) The contractor will certify that any vacant employment positions, including training positions, that are filled (a) after the contractor is selected but before the contract is executed, and (b) with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 CFR part 135. (f) Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts." After the foregoing Section 3 Clause, there shall be a signature block for the contractor, as applicable, the following text shall be included immediately above the signature block: "The contractor /provider by his/her signature affixed hereto declares under penalty of perjury that contractor has read the requirements of the Section 3 Clause and accepts all its requirements contained therein for all of his/her operations related to this contract." To the extent applicable, the Developer shall comply and /or cause compliance with Section 3 Clause requirements for the Project. For example, when and if Developer or its contractor(s)/subcontractor(s) hire(s) full time employees, rather than volunteer labor or materials, Section 3 is applicable and all disclosure and reporting requirements apply. 10.6 Rehabilitation Information. From time to time during the course of the 21 251 -27 rehabilitation, within ten (10) Business Days following City's written demand therefore, Developer shall furnish requested reports of project costs, progress schedules and contractors' costs breakdowns for the rehabilitation, itemized as to trade description and item, showing the name of the contractor(s) and /or subcontractor(s), and including such indirect costs as real estate taxes, legal and accounting fees, insurance, architects' and engineers' fees, loan fees, interest during construction and contractors' overhead. 10.7 Protection Against Liens: Developer shall diligently file a valid Notice of Completion upon completion of the rehabilitation, diligently file a notice of cessation in the event of a cessation of labor on the rehabilitation for a period of thirty (30) days or more, and take all actions reasonably required to prevent the assertion of claims of lien against the Property. In the event that any claim of lien is asserted against the property or any stop notice or claim is asserted against the City by any person furnishing labor or materials to the Property, Developer shall immediately give written notice of the same to City and shall, promptly and in any event within ten (10) Business Days after written demand therefor, (a) pay and discharge the same, (b) effect the release thereof by delivering to City a surety bond complying with the requirement of applicable laws for such release, or (c) take such other action as City may require to release City from any obligation or liability with respect to such stop notice or claim. 10.8 General Contractors who are Related Parties to the Developer. If the Project is developed with general contractors who are Related Parties to the Developer, the Developer must be audited to the subcontractor level by an outside auditing firm approved by the City. The Developer shall pay for the audit to the subcontractor level by an outside auditing firm. 11. FEDERAL (HOME PROGRAM) COVENANTS 11.1 Qualification as Affordable Housing. As more particularly provided in the Affordability Restrictions on Transfer of Property, Developer shall use, manage and operate the Property in accordance with the requirements of 24 CFR 92.252 so as to qualify the housing on the Property as Affordable Housing with affordable rents. 11.2 Tenant and Participant Protection. Developer shall comply with the requirements of 24 CFR 92.253. 11.3 [Intentionally Omitted] 11.4 Handicapped Accessibility. Developer shall comply with (a) Section 504 of the Rehabilitation Act of 1973, and implementing regulations at 24 CFR 8C governing accessibility of projects assisted under the HOME Program; and (b) the Americans with Disabilities Act of 1990, and implementing regulations at 28 CFR 35 -36 in order to provide handicapped accessibility to the extent readily achievable. 11.6 Use of Debarred. Suspended, or Ineligible Participants. Developer shall comply with the provisions of 24 CFR 24 relating to the employment, engagement of services, awarding of contracts, or funding of any contractor or subcontractor during any period of debarment, suspension, or placement in ineligibility status. 22 251 -28 11.7 Maintenance of Drug -Free Workplace. Developer shall certify that Developer will provide a drug -free workplace in accordance with 24 CFR 84.13. 11.8 Lead -Based Paint. Developer shall comply with the requirements of the Lead -Based Paint Poisoning Prevention Act (42 U.S.C. 4821 -4846) and implementing regulations at 24 CFR 35, as applicable. 11.9 Affirmative Marketing. Developer shall implement and perform such affirmative marketing procedures and requirements for the Property (24 CFR 92.351) in compliance with the City's adopted Program (a copy of which is attached hereto and incorporated herein as Exhibit H). 11.10 Equal Opportunity and Fair Housing. Developer shall carry out the rehabilitation and perform its obligations under this Agreement in compliance with all of the state and federal laws and regulations regarding equal opportunity and fair housing described in 24 CFR 92.350. 11.11 Property Standards. Developer shall cause the Property to meet the housing quality standards set forth in 24 CFR 882.109, as well as all applicable local, state and federal codes and ordinances, including zoning ordinances. Developer shall also cause the Property to meet the current edition of the Model Energy Code published by the Council of American Building Officials. 11.12 Displacement and Relocation. Developer acknowledges and agrees that, pursuant to 24 CFR 92.253 and consistent with the other goals and objectives of this part, City must ensure that it has taken all reasonable steps to minimize the displacement of persons as a result of the Project. Furthermore, to the extent feasible, residential tenants must be provided a reasonable opportunity to lease and occupy a suitable, decent, safe, sanitary and affordable dwelling unit on the Property upon completion of the rehabilitation. Developer agrees to cooperate fully and completely with City in meeting the requirements of 24 CFR 92.253 and shall take all actions and measures reasonably required by the Executive Director in connection therewith. All applicable state guidelines must also be followed. (a) Developer acknowledges and agrees to hire a Relocation Consultant to provide relocation services, pursuant to the Uniform Relocation Act and Real Property Acquisition Policies Act of 1970 ( "URA ") and 24 CFR 92.253. (b) The City, Developer, and Relocation Consultant will meet periodically during the relocation to provide updates and review tenant files, including at Project approval and prior to final benefit calculations. The Developer and Relocation Consultant shall carry out activity in compliance with URA and the City's Acquisition and Relocation Policy and Procedures Manual ( "Manual "). 23 251 -29 (c) The Developer and Relocation Consultant shall maintain accurate records and files pertaining to the temporary and permanent relocation of tenants, in accordance with URA and the City's Manual. (d) The Developer and Relocation Consultant shall provide all relocation and tenant files to the City once relocation is complete at the Project. 11.13 Other Proeram Requirements. Developer shall carry out each activity in compliance with all federal laws and regulations described in subpart H of 24 CFR 92, except that Developer does not assume City's responsibilities for environmental review in 24 CFR 92.352 or the intergovernmental review process in 24 CFR 92.359. 11.14 Request for Disbursements of Funds. Notwithstanding anything contained in this Agreement to the contrary, Developer may not request disbursements of funds under this Agreement until the funds are needed for payment of eligible costs (such funds shall be used solely towards the acquisition and rehabilitation of the Property). The amount of each request shall be limited to the amount needed. 11.15 Elieible Costs. Developer shall use HOME Funds to pay costs defined as "eligible costs" pursuant to 24 CFR 92.206. 11.16 Records and Reports. Developer shall maintain and from time to time submit to City such records, reports and information as the Executive Director may reasonably require in order to permit City to meet the record keeping and reporting requirements required of it pursuant to 24 CFR 92.508. 11.17 Uniform Administrative Requirements. Developer shall comply with the requirements and standards of OMB Circular No. A -122, "Cost Principles for Non - Profit Organizations," and with the following Attachments to OMB Circular No. A -110: (a) Attachment A, "Cash Depositories ", except for paragraph 4 concerning deposit insurance; (b) Attachment B, "Bonding and Insurance'; (c) Attachment C, "Retention and Custodial Requirements for Records ", except that in lieu of the provisions in paragraph 4, the retention period for records pertaining to individual CDBG activities starts from the date of submission of the annual performance and evaluation report, as prescribed in 24 CFR 570.507, in which the specific activity is reported on for the final time; (d) Attachment F, "Standards for Financial Management Systems'; 24 251 -30 (e) Attachment H, "Monitoring and Reporting Program Performance ", Paragraph 2; (f) Attachment O, "Procurement Standards." 11.18 Conflict of Interest. Developer shall comply with and be bound by the conflict of interest provisions set forth at 24 CFR 570.611, as well as state regulations pertaining to conflict of interest. 11.19 Monitoring. Developer shall allow the City to conduct periodic inspections of the HOME assisted units on the Property as required by the Program after the date of rehabilitation completion, with reasonable notice. Developer shall cure any defects or deficiencies found by the City while conducting such inspections within two weeks of written notice thereof, or such longer period as is reasonable within the sole discretion of the City. 11.20 Recertification of Tenant Income. (A) Developer shall take all necessary steps to review the income of all tenants prior to renting to them, as well as reviewing current tenants on an annual basis, in accordance with HOME regulations and guidelines. Every fifth (5`h) year, Developer shall require new original income documents to be submitted by tenants. Tenants in HOME assisted units whose incomes no longer comply with federal income guidelines shall have their rents adjusted in accordance with federal HOME guidelines (24 CFR 92.252- 92.253). (B) HOME assisted units continue to qualify as affordable housing despite a temporary non - compliance caused by increases in the incomes of existing tenants if actions satisfactory to HUD are being taken to ensure that all vacancies are filled in accordance with this section until the non - compliance is corrected. 11.21 Other HOME Program Requirements. Developer shall comply with all other applicable requirements of the HOME Program. 11.22 Controlling Covenants. If there is a discrepancy between State and Federal law with regard to any of the aforementioned covenants, the more stringent shall apply. 12. MAINTENANCE, MANAGEMENT, OPERATION, PRESERVATION AND REPAIR OF PROPERTY 12.1 Maintenance. Developer shall maintain the Property (and all abutting grounds, sidewalks, roads, parking and landscape areas which Developer is otherwise required to maintain) in good condition and repair; shall operate the Property in a businesslike manner; shall prudently preserve and protect its own as well as the City's interests in connection with the Property; shall not commit or permit any waste or deterioration of the Property (except for normal wear and tear); shall not abandon any portion of the Property or leave the Property unguarded or unprotected; and shall not 25 251 -31 otherwise act, or fail to act, in such a way as to unreasonably increase the risk of any damage to the Property or of any other impairment of City's interests under the Loan Documents. Without limiting the generality of the foregoing, and except as otherwise agreed by City in writing from time to time, Developer shall promptly and faithfully perform and observe each of the following provisions: 12.1.1 Alterations and Repair. Developer shall not remove, demolish or materially alter any Improvement without City's prior consent, except to make non- structural repairs which preserve or increase the Property's value, and shall promptly restore, in a good and professional manner, any Improvement (or other aspect or portion of the Property) that is damaged or destroyed from any cause. 12.2 Compliance. Developer shall comply with all laws and requirements of Governmental Authority (including, without limitation, all requirements relating to the obtaining of Governmental Authority approvals), all Governmental Authority approvals and all rights of third parties, relating to Developer, the Property or Developer's business thereon. 12.3 Taxes and Impositions. Developer shall pay, prior to delinquency, all of the following (collectively, the "Impositions "): (a) all general and special real property taxes and assessments imposed on the Property; (b) all other taxes and assessments and charges of every kind that are assessed upon the Property (or upon the owner and /or operator of the Property) and that create or may create a lien upon the Property (or upon any personal property or fixtures used in connection with the Property), including, without limitation, non - governmental levies and assessments pursuant to applicable covenants, conditions or restrictions; and (c) all license fees, taxes and assessments imposed on City (other than City's income or franchise taxes) which are measured by or based upon (in whole or in part) the amount of the obligations secured by the Property. If permitted by law, Developer may pay any Imposition in installments (together with any accrued interest). 12.1.3.1 Riuht to Contest. Developer shall not be required to pay any Imposition so long as (a) its validity is being actively contested in good faith and by appropriate proceedings, (b) Developer has demonstrated to City's reasonable satisfaction that leaving such Imposition unpaid pending the outcome of such proceedings could not result in conveyance of the Property in satisfaction of such Imposition or otherwise impair City's interests under the Loan Documents, and (c) Developer has furnished City with a bond or other security satisfactory in an amount not less than 100% of the applicable claim (including interest and penalties). 12.1.3.2 Evidence of Payment. Upon demand by City from time to time, Developer shall deliver to City, within thirty (30) days following the due date of any Imposition, evidence of payment reasonably satisfactory to City. 12.1.3.3 Books and Records. Developer shall maintain complete books of account and other records reflecting its operations (in connection with any other businesses as well as with respect to the Property), in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other 26 251 -32 principles or methods as are reasonably acceptable to City, in accordance with 24 CFR 92.508. 12.4 Project Operating Budget. Developer must promptly deposit all project income directly into a segregated depository account established exclusively for the Project ( "Project Operating Account "). Withdrawals from this account may be made only in accordance with the provisions of this Agreement and the approved Project Budget, as it may be revised from time to time with City approval. Developer may make withdrawals from this account solely for the payment of project expenses and project fees. Withdrawals from this account for other purposes may be made only with the prior written approval of the City. 12.5 Replacement Reserve Account. Developer must establish or cause to be established a segregated interest - bearing replacement reserve depository account ( "Replacement Reserve Account ") no later than sixty (60) days after the Certificate of Completion is filed. Developer must make monthly deposits from project income into the Replacement Reserve in accordance with Developer's Budget, as amended from time to time. Developer may withdraw funds from the Replacement Reserve Account solely to fund capital improvements for the Project, such as replacing or repairing structural elements, furniture, fixtures or equipment of the Project that are reasonably required to preserve the Project. Developer may not withdraw funds from the Replacement Reserve Account for any other purpose without the prior written approval of the City. 13. NONDISCRIMINATION COVENANTS 13.1 Obligation to Refrain from Discrimination. Developer covenants and agrees that: A. In Use of Property. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, sex, mental or physical disability, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Developer or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendors of the Property. B. In Affordable Housing Restrictions. The foregoing covenant shall (a) be included in the Affordability Restrictions on Transfer of Property, (b) run with the land, and (c) remain effective for the term of the contract (for 55 years). C. In Employment. In rehabilitation of the Property, Developer shall not discriminate against any employee or applicant because of race, color, creed, religion, sex, marital status, mental or physical disability, national origin, or ancestry. Developer shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. 27 251 -33 D. In all Contracts. Developer shall cause the foregoing covenants to be inserted in all contracts for any work covered by this Agreement so that such provisions will be binding upon each contractor and subcontractor for the benefit of City, provided that the foregoing covenant shall not apply to contracts or subcontracts for standard commercial supplies or raw materials. 14. ENVIRONMENTAL MATTERS 14.1 Representation and Warranty. Except as disclosed in writing to the City, Developer has no knowledge (a) of the presence on, under or about the Property, now or in the past, of any Hazardous Materials, or of the transportation to or from the Property of any Hazardous Materials, (b) that asbestos or polychlorinated biphenyls (PCBs) are contained in or stored on the Property, or (c) that there are any underground storage tanks located in, on or under the Property. 14.2 Compliance with Environmental Laws. Developer shall (a) comply with all environmental laws and environmental permits applicable to the Rehabilitation of the Property, (b) immediately pay or cause to be paid all costs and expenses incurred by reason of such compliance, (c) keep the Property free and clear of any environmental claims or liens imposed pursuant to any environmental law, and (d) obtain and renew all environmental permits required for ownership or use of the Property. 14.3 Presence of Hazardous Materials. Developer shall not, and shall not permit anyone else to, generate, use, treat, store, handle, release, or dispose of Hazardous Materials on the Property, or transport or permit the transportation of Hazardous Materials to or from the Property except for de minimis quantities used at the Property in compliance with all applicable environmental laws and required in connection with the routine operation and maintenance of the Property. 14.4 Notice of Environmental Matters. Developer shall immediately advise City in writing of any of the following: (a) any pending or threatened environmental claim against Developer or the Property, (b) any condition or occurrence that (i) results in noncompliance with any applicable environmental law, (ii) could reasonably be anticipated to cause the Property to be subject to any restrictions on the ownership, occupancy, use or transferability of the Property under any environmental Law, or (iii) could reasonably be anticipated to form the basis of an environmental claim against the Property or Developer. 14.5 Environmental Indemnification by the Developer. Developer agrees to defend, indemnify and hold harmless the City and their respective officers, directors, employees and agents (collectively the "lndemnitees ") from and against any and all obligations (including removal and remediation), losses, claims (including third party claims), suits, judgments, liabilities, penalties, damages (including consequential and punitive damages), costs and expenses (including consultants, and attorneys' fees) of whatever kind or nature whatsoever that may at any time be incurred by, imposed on, or asserted against the lndemnitees directly or indirectly based on, or arising or resulting from the actual or alleged presence of Hazardous Materials on the Property. 28 251 -34 15. OTHER AFFIRMATIVE COVENANTS While any obligation of Developer under the City Loan Note or Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that Executive Director otherwise consents in writing: 15.1 Existence. Developer's managing general partner (OHDC) shall maintain its existence in good standing under the laws of the State of California, and Developer shall provide documentation of such status annually to the City. 15.2 Protection of Lien. Developer shall maintain the lien of the City Deed of Trust as a valid second priority deed of trust on the Property and take all actions, and execute and deliver to City all documents, reasonably required by City from time to time in connection therewith. 15.3 Notice of Certain Matters. Developer shall give notice to City, within ten (10) days of Developer's learning thereof, of each of the following: (a) any filed litigation or claim affecting or relating to the Property and involving an amount in excess of $5,000; and any litigation or claim that might subject Developer or any general partner to liability in excess of $5,000, whether covered by insurance or not; (b) any dispute between Developer and a Governmental Authority relating to the Property, the adverse determination of which might materially affect the Property; (c) any change in Developer's principal place of business; (d) any aspect of the Improvements that is not in substantial conformity with the plans or code; (e) any Event of Default or event which, with the giving of notice or the passage of time or both, would constitute an Event of Default; (f) any material default by Developer or any other party under any Senior Loan document, or the receipt by Developer of any notice of default under any Senior Loan document; (g) the creation or imposition of any mechanics' or materialmans' lien or other lien against the Property which might materially affect the Property; and /or Developer. (h) any material adverse change in the financial condition of 29 251 -35 15.4 Further Assurances. Developer shall execute and acknowledge (or cause to be executed and acknowledged) and deliver to City all documents, and take all actions, reasonably required by City from time to time to confirm the rights created or now or hereafter intended to be created under the Loan Documents; to protect and further the validity, priority and enforceability of the City Deed of Trust; to subject to the Deed of Trust any property intended by the terms of any Loan Document(s) to be covered by the City Deed of Trust or otherwise to carry out the purposes of the Loan Documents and the transactions contemplated thereunder. 15.5 Annual Financial Statements. Developer shall deliver to City, within ninety (90) days after the end of each Calendar Year, (a) a certified public accountant reviewed balance sheet for Developer as of the end of such Calendar Year and a certified public accountant reviewed statement of profit and loss for Developer and for Developer's operations in connection with the Property for such Calendar Year, together with all supporting schedules, (b) a certificate of such certified public accountant that such documents were reviewed by such certified public accountant in accordance with generally accepted accounting principles and otherwise comply with generally accepted accounting principles review requirements, and (c) a certificate of Developer's chief financial officer that such documents: (i) were prepared in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City, (ii) fairly present Developer's financial condition, (iii) show all material liabilities, direct and contingent, and (iv) fairly present the results of Developer's operations. Developer shall also provide the City with any other annual audit reports issued by other monitoring agencies. 15.6 Audits and Access to Records. Developer agrees that City, the U.S. Department of Housing and Urban Development, the Comptroller General of the United States or any of their authorized representatives shall have the right of access, upon reasonable notice, to any books, documents, papers, or other records of Developer which are pertinent to this Agreement in order to make audits, examinations, abstracts, excerpts or transcripts. Developer will maintain all books and records pertaining to this Agreement for a period of not less than five (5) years after all matters pertaining to this Agreement (i.e., audit, disputes or litigation) are resolved in accordance with applicable federal or state laws, regulations or policies, and when a period of affordability or recapture applies to Developer's activities, for a period of not less than five (5) years after the affordability period ends. 15,7 Termite Inspection Report. Developer shall deliver a termite report pertaining to the Property to the City every fifth (5th) year beginning January 2019. 16. OTHER NEGATIVE COVENANTS While any obligation of Developer under the City Note or City Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that Executive Director otherwise consents in writing: 30 251 -36 16.1 Default on Senior Loan. Developer shall not default on any of the Senior Loan documents, provided however, that Developer shall have such period as is provided in the Senior Loan Documents during which to effectuate a cure. 16.2 Sale or Lease of Property. Unless and until Developer has received a Certificate of Completion for the rehabilitation from City, Developer shall not sell, lease, sublease or otherwise transfer all or any part of the Property or any interest therein without the prior written consent of the Executive Director, which consent may be withheld in the Executive Director's reasonable discretion. In connection with the foregoing consent requirements, Developer acknowledges that City relied upon Developer's particular expertise in entering into this Agreement and continues to rely on such expertise to ensure the satisfactory completion of the rehabilitation. Notwithstanding anything to the contrary contained herein, a "transfer" shall not include (i) a transfer of a General Partner's interest in Developer when made in connection with the exercise by the Developer's limited partner (the "Limited Partner ") of its rights upon a default by a General Partner under the Developer's Partnership Agreement (the "Partnership Agreement ") or upon a General Partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting General Partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the General Partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the Managing General Partner pursuant to the right of first refusal or to the General Partners pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in connection with a default by the Limited Partner under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of an interest in a limited partner of the Developer. 17. CERTIFICATE OF COMPLETION Upon satisfactory completion of the rehabilitation and upon the request of Developer, or at its own election, the City of Santa Ana shall issue a Certificate of Completion. Such Certificate of Completion shall be, and shall so state, conclusive determination of satisfactory completion of the rehabilitation. If City declines to furnish a Certificate of Completion after written request from Developer, the Executive Director shall, within thirty (30) days after receipt of the request, provide Developer with a written statement of the reasons therefore. The statement shall contain a description of the action Developer must take to obtain a Certificate of Completion. If the reason therefore is that the Developer has not completed a minor portion of the Rehabilitation, City may, in its sole and absolute discretion, issue the Certificate of Completion upon the posting with City of a bond or other form of security acceptable to the Executive Director in the amount of the fair value of the uncompleted work. 31 251 -37 A Certificate of Completion is not evidence of compliance with or satisfaction of the Loan Documents or any obligation of Developer to any other party whatsoever, including any holder of a mortgage or deed of trust. A Certificate of Completion is not "notice of completion" referred to in Section 3093 of the California Civil Code. 18. INDEMNIFICATION 18.1 Nonliability. of City. Developer acknowledges and agrees that: (a) The relationship between Developer and City is and shall remain solely that of borrower and lender, City neither undertakes nor assumes any responsibility to review, inspect, supervise, approve (other than for aesthetics) or inform Developer of any matter in connection with the rehabilitation, including matters relating to: (i) the performance of the rehabilitation work, (ii) architects, contractors, subcontractors and materialmen, or the workmanship of or materials used by any of them, or (iii) the progress of the rehabilitation; and Developer shall rely entirely on its own judgment with respect to such matters and acknowledges that any review, inspection, supervision, approval or information supplied to Developer by City in connection with such matters is solely for the protection of City and that neither Developer nor any third party is entitled to rely on it; (b) Notwithstanding any other provision of any Loan Document: (i) the City are not a partner, joint venture, alter -ego, manager, controlling person or other business associate or participant of any kind of Developer and City does not intend to ever assume any such status; (ii) City's activities in connection with the Loan(s) shall not be "outside the scope of the activities of a lender of money" within the meaning of California Civil Code Section 3434, as modified or recodified from time to time, and City does not intend to ever assume any responsibility to any person for the quality or safety of the Property; and (iii) City shall not be deemed responsible for or a participant in any acts, omissions or decisions of Developer; (c) City shall not be directly or indirectly liable or responsible for any loss or injury of any kind to any person or property resulting from any construction on, or occupancy or use of, the Property, whether arising from: (i) any defect in any building, grading, landscaping or other onsite or offsite improvement; (ii) any act or omission of Developer or any of Developer's agents, employees, independent contractors, licensees or invitees; or (iii) any accident on the Property or any fire or other casualty or hazard thereon; and (d) By accepting or approving anything required to be performed or given to City under the Loan Documents, including any certificate, financial statement, survey, appraisal or insurance policy, City shall not be deemed to have warranted or represented the sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a warranty or representation by City to anyone. 32 251 -38 18.2 Indemnity. Developer shall defend (by counsel satisfactory to City), indemnify and save and hold harmless the Indemnitees from and against all claims, damages, demands, actions, losses, liabilities, costs and expenses (including, without limitation, attorneys' fees and court costs) arising from or relating to (i) this Agreement; (ii) the making of the Loan(s); (iii) a claim, demand or cause of action that any person has or asserts against Developer; (iv) any act or omission of Developer, any contractor, subcontractor or material supplier, engineer, architect or other person with respect to the Property; or (vi) the ownership, occupancy or use of the Property. Notwithstanding the foregoing, Developer shall not be obligated to indemnify City with respect to the consequences of any act of gross negligence or willful misconduct of City. Developer's obligations under this Section shall survive the cancellation of the City Loan Note, release and reconveyance of the City Deed of Trust, issuance of the Certificate of Completion, and termination of this Agreement. 18.2.1 Nothwithstanding the foregoing, neither Developer, nor any of its partners, shall be personally liable for any indemnification obligation hereunder which would result as the repayment of principal and /or interest under the Loan. 18.3 Reimbursement of City. Developer shall reimburse City immediately upon written demand for all costs reasonably incurred by City (including the reasonable fees and expenses of attorneys, accountants, appraisers and other consultants, whether the same are independent contractors or employees of City) in connection with the enforcement of the Loan Documents and all related matters including all claims, demands, causes of action, liabilities, losses, commissions and other costs against which City is indemnified under the Loan Documents. Such reimbursement obligations shall bear interest from the date occurring twenty (20) days after City gives written demand to Developer and shall be secured by the City Deed of Trust. Such reimbursement obligations shall survive the cancellation of the Loan Note, release and reconveyance of the City Deed of Trust, issuance of a Certificate of Completion, and termination of this Agreement 19. INSURANCE, CASUALTY AND CONDEMNATION 19.1 Policies Required. While any obligation of Developer under the Loan Documents remains outstanding, Developer shall maintain at Developer's sole expense, with insurers either (i) admitted in California or (ii) are not admitted to California but have an A.M. Best Rating of "A" or above and reasonably approved by the City, the following policies of insurance in form and substance reasonably satisfactory to the City Attorney: (a) worker's compensation insurance and any other insurance required by law in connection with the rehabilitation; (b) prior to commencement and following completion of the rehabilitation, fire and hazard "all risk" insurance covering 100% of the replacement cost of the Improvements in the event of fire, lightning, windstorm, vandalism, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area 33 251 -39 where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (c) upon commencement of the rehabilitation and at all times prior to completion of the rehabilitation, builder's risk -all risk insurance covering 100% of the replacement cost of all Improvements (including offsite materials) during the course of construction in the event of fire, lightning, windstorm, vandalism, earthquake, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); (d) public liability insurance in amounts reasonably required by City from time to time, and in no event less than $1,000,000 for "single occurrence;" (e) property damage insurance in amounts reasonable required by City from time to time, and in no event less than $1,000,000; and (f) any other insurance reasonably required by City. All such insurance shall provide that it may not be canceled or materially modified without thirty (30) days prior written notice to City. The policies required under subparagraphs (b) and (c) shall include a "lender's loss payable endorsement" in form and substance satisfactory to City, showing the City as encumbrance. The City shall be named as an additional insured(s) in the policies required under subparagraphs (d) and (e) with primary coverage. Certificates of insurance for the above policies (and/or original policies, if required by City) shall be delivered within ten (10) days after demand therefore, and prior to start of any rehabilitation work. All policies insuring against damage to the Improvements shall contain an agreed value clause sufficient to eliminate any risk of co- insurance. No less than thirty (30) days prior to the expiration of each policy, Developer shall deliver to City evidence of renewal or replacement of such policy reasonably satisfactory to City Attorney. 19.2 City Attorney May Modify. The City Attorney may modify the type and amounts of insurance required pursuant to this Section. 19.3 Claims and Proceedings. Developer shall give City immediate notice of any material casualty to any portion of the Property, whether or not covered by insurance, and of the initiation or threatened initiation of any proceeding for the condemnation or other taking for public or quasi - public use of any portion of the Property (collectively, "Condemnation "), and shall provide City with copies of all documents which pertain to any such casualty or Condemnation. Developer shall take all action reasonably required by City in connection therewith to protect the interests of Developer and /or City, and City shall be entitled (without regard to the adequacy of its security) to participate in any action, claim, adjustment or proceeding and to be represented therein by counsel of its choice. Developer shall not settle, adjust, or compromise any claim, action, adjustment or proceeding without prior written approval, which approval shall not be unreasonably withheld or delayed. 34 251 -40 19.4 Delivery of Proceeds to City. In the event that, notwithstanding the "lender's loss payable endorsement" requirement set forth above, the proceeds of any casualty insurance policy described herein are paid to Developer, Developer shall, subject to any superior rights of the Senior Lender, deliver such proceeds to the City immediately upon receipt. 19.5 Application of Casualty Insurance Proceeds. Any proceeds collected (the "Proceeds ") under any casualty insurance policy described in this Agreement shall be disbursed to Developer as provided below, but only upon fulfillment of each of the following conditions (the "Restoration Conditions ") within ninety (90) days (unless extended by mutual agreement of Developer and City) following the occurrence of the damage for which the Proceeds are collected: (a) Developer shall demonstrate to City's reasonable satisfaction that the Proceeds (together with amounts deposited by Developer pursuant to subparagraph (b) will be adequate to repair the Improvements and to restore the fair market value of the Property, within a time period reasonably determined by City, to at least the value it had immediately prior to sustaining the damage. Such demonstration shall include delivery to City of (i) plans and specifications reasonably satisfactory to City, and (ii) a rehabilitation contract in form and content, and with a contractor, reasonably satisfactory to City. (b) To the extent that the Proceeds are insufficient to accomplish the restoration required above, Developer shall deliver to City funds (the "Shortfall Funds ") in the amount of such shortfall, which funds shall be assigned to City as security for Developer's obligation hereunder and held and disbursed in the same manner as the Proceeds. (c) Developer shall execute such documents as City requires to evidence and secure Developer's obligation to use all amounts disbursed for the diligent restoration of the Property. (d) No Event of Default shall remain uncured. 19.6 Method of Disbursement and Undisbursed Funds. Any Proceeds and Shortfall Funds to be disbursed to Developer shall be held by City and disbursed in accordance with then customary disbursement procedures and related provisions. Any amounts remaining undisbursed following completion of such restoration shall be returned to Developer up to the amount of any Shortfall Funds deposited by Developer, and any other amounts remaining shall either be paid to Developer or applied by City against any obligations to City that are secured by a lien on the Property, as they elects in their sole and absolute discretion. 19.7 Failure to Satisfy Conditions. In the event that Developer fails to fulfill the Restoration Conditions within ninety (90) days (unless extended pursuant to Section 19.5) following the date on which the damage occurs, the Proceeds shall be applied by City against any obligations to City that are secured by a lien on the 35 251 -41 Property, and the selection of which such obligations to apply the Proceeds against shall be made by City in their sole and absolute discretion. 19.8 Restoration. Nothing in this Article 19 shall be construed to excuse Developer from repairing and restoring all damage to the Property in accordance with other Loan Document provisions, regardless of whether insurance proceeds are available or sufficient. 19.9 Condemnation; Treatment of Compensation Subject to any superior rights of Senior Lender, Developer hereby assigns to the City, as security for all obligations to City secured by a lien on the Property, all amounts payable to Developer in connection with any Condemnation, and any proceeds of any related settlement (collectively, "Compensation "). Subject to any superior rights of Senior Lender, Developer shall deliver such remaining Compensation to City immediately upon receipt. If the taking results in a loss of the Property to an extent that, in the reasonable opinion of City, renders or is likely to render the Property not economically viable or if, in City's reasonable judgment Developer's security is otherwise impaired, City may apply the Compensation received due to judgment or settlement in connection with any condemnation or other taking to reduce the unpaid obligations secured in such order as City may determine, and without any adjustment in the amount or due dates of payments due under the Note. I£ so applied, any award in excess of the unpaid balance of the Note and other sums due to City shall be paid to Developer or Developer's assignee. City shall have no obligation to take any action in connection with any actual or threatened condemnation or other proceeding. 19.9.1 Notwithstanding the foregoing, as long as the value of City's liens are not impaired, any condemnation proceeds may be used by the Borrower for repair and /or restoration of the Project. 19.10 Waiver of Subrogation. Developer hereby waives all rights to recover against the City (or any officer, employee, agent or representative of the City) for any loss incurred by Developer from any cause insured against or required by any Loan Document, to be insured against; provided, however, that this waiver of subrogation shall not be effective with respect to any insurance policy if the coverage thereunder would be materially reduced or impaired as a result. Developer shall use its best efforts to obtain only policies which permit the foregoing waiver of subrogation. 20. DEFAULTS AND REMEDIES 20.1 Events of Default. The occurrence of any of the following, whatever the reason therefore, shall constitute an Event of Default by Developer: (a) Developer fails to make any payment of principal or interest under the City Loan Note when due, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; (b) Developer fails to perform any other obligation for the 36 251 -42 payment of money under any Loan Document, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such obligation was not performed when due; (c) Developer fails to perform any obligation (other than the obligations described in subparagraphs (a) and (b) above) under any Loan Document, and such failure is not cured within thirty (30) days after Developer's receipt of written notice that such obligation was not performed; provided that, if cure cannot reasonably be effected within such thirty (30) -day period, such failure shall not be an Event of Default so long as Developer (in any event, within ten (10) days after receipt of such notice) commences to cure, and thereafter diligently (in any event within ninety (90) days after receipt of such notice) prosecutes such cure to completion; (d) Any representation or warranty in any Loan Document proves to have been incorrect in any material respect when made; (e) The Property is materially damaged or destroyed by fire or other casualty unless Developer fulfills the Restoration Conditions set forth in the insurance provisions of this Agreement within ninety (90) days (unless extended pursuant to Section 19.5) and thereafter diligently restores the Property in accordance with this Agreement; (f) Work on the rehabilitation ceases for thirty (30) consecutive days for any reason (other than governmental orders, decrees or regulations, acts of God or any other deity, strikes or other causes beyond Developer's reasonable control), provided that the same do not, in the aggregate and in the City's reasonable judgment, threaten to delay the completion of the rehabilitation beyond the required completion date set forth in this Agreement; (h) Developer is enjoined or otherwise prohibited by any Governmental Authority from constructing and /or occupying the improvements and such injunction or prohibition continues unstayed for sixty (60) days or more for any reason; (i) Developer is dissolved, liquidated or terminated, or all or substantially all of the assets of Developer are sold or otherwise transferred without the Executive Director's prior written consent; 0) Developer is the subject of an order for relief by a bankruptcy court, or is unable or admits its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or Developer applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or any part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of Developer and the appointment continues undischarged or unstayed for ninety (90) days; or Developer institutes or consents to any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, custodianship, 37 251 -43 conservatorship, liquidation, rehabilitation or similar proceeding relating to it or any part of its property; or any similar proceeding is instituted without the consent of Developer and continues undismissed or unstayed for ninety (90) days; or any judgment, writ, warrant of attachment or execution, or similar process is issued or levied against any property of Developer and is not released, vacated or fully bonded within ninety (90) days after its issue or levy; or (k) (i) any of the Senior Loan documents is revoked or terminated, in whole or in part and for any reason (except due to repayment of such loans), without the Executive Director's prior written consent, or (ii) Developer defaults or otherwise fails to perform any of its duties or obligations under or in connection with any of the Senior Loan documents, subject to all applicable notice and cure periods, or (iii) any of the Senior Loan documents is amended, supplemented or otherwise modified without City's prior written consent, which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary contained herein, City hereby agrees that any cure of any default made or tendered by Developer's Limited Partner shall be deemed to be a cure by Developer and shall be accepted or rejected on the same basis as if made or tendered by Developer. 20.2 Remedies Upon Default. Upon the occurrence of any Event of Default, City may, at its option and in its absolute discretion, do any or all of the following: (a) By written notice to Developer, declare the principal of all amounts owing under the Loan Documents, together with all accrued interest and other amounts owing in connection therewith, to be immediately due and payable, regardless of any other specified due date; provided that any Event of Default described in Section 20.1 shall automatically, without notice or other action on City's part, cause all such amounts to be immediately due and payable; (b) In its own right or by a court- appointed receiver, take possession of the Property, enter into contracts for and otherwise proceed with the completion of the rehabilitation by expenditure of its own funds; (c) Exercise any of its rights under the Loan Documents and any rights provided by law, including, without limitation, the right to seek specific performance and the right to foreclose on any security and exercise any other rights with respect to any security, all in such order and manner as City elects in its sole and absolute discretion; and, (d) Suspend or terminate the award of HOME funds if Developer fails to comply with any term of that award. 20.3 Cumulative Remedies: No Waiver. City's rights and remedies under the Loan Documents are cumulative and in addition to all rights and remedies provided by law. The exercise by City of any right or remedy shall not constitute a cure or waiver of any default, nor invalidate any notice of default or any act done pursuant to any such notice, nor prejudice the City in the exercise of any other right or remedy. No waiver of any default shall be implied from any omission by City to take action on account of such 38 251 -44 default if such default persists or is repeated. No waiver of any default shall affect any default other than the default expressly waived, and any such waiver shall be operative only for the time and to the extent stated. No waiver of any provision of any Loan Document shall be construed as a waiver of any subsequent breach of the same provision. City's consent to or approval of any act by Developer requiring further consent or approval shall not be deemed to waive or render unnecessary City's consent to or approval of any subsequent act. The City's acceptance of the late performance of any obligation shall not constitute a waiver by City of the right to require prompt performance of all further obligations; City's acceptance of any performance following the sending or filing of any notice of default shall not constitute a waiver of either party's right to proceed with the exercise of its remedies for any unfulfilled obligations; and City's acceptance of any partial performance shall not constitute a waiver by City of any rights. 21. MISCELLANEOUS 21.1 Oblisations Unconditional and Independent. Notwithstanding the existence at any time of any obligation or liability of City to Developer, or any other claim by developer against City, in connection with the Loan or otherwise, Developer hereby waives any right it might otherwise have (a) to offset any such obligation, liability or claim against Developer's obligations under the Loan Documents, or (b) to claim that the existence of any such outstanding obligation, liability or claim excuses the nonperformance by Developer of any of its obligations under the Loan Documents. 21.2 Notices. All notices, demands, approvals and other communications provided for in the Loan Documents shall be in writing and be delivered to the appropriate party by personal service or U.S. mail at its address as follows: If to Developer: 940 Minnie, LP c/o OHDC Properties 1, LLC 414 East Chapman Avenue Orange, California 92866 Attn: Executive Director With a copy to: C &C Properties Group I, LLC 1411 Yorba St., Suite 200 Tustin, CA 92780 If to City: City of Santa Ana Executive Director (CDA) 20 Civic Center Plaza (M -37) P.O. Box 1988 Santa Ana, California 92702 With a copy to: City Attorney City of Santa Ana 20 Civic Center Plaza, 7th Floor (M -29) Santa Ana, California 92702 39 251 -45 Addresses for notice may be changed as required by written notice to all other parties. All notices personally served shall be effective when actually received. All notices mailed shall be effective three (3) days after deposit in the U.S. Mail, postage prepaid. The foregoing notwithstanding, the non - receipt of any notice as the result of a change of address of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such notice. 21.3 Survival of Representations and Warranties. All representations and warranties in the Loan Documents shall survive the making of the Loan described herein and have been or will be relied on by City notwithstanding any investigation made by either party. 21.4 No Third Parties Benefited. This Agreement is made for the purpose of setting forth rights and obligations of Developer and the City, and no other person shall have any rights hereunder or by reason hereof. 21.5 Binding Effect; Assignment of Obligations. This Agreement shall bind, and shall inure to the benefit of, Developer and City and their respective successors and assigns. Other than as expressly provided to the contrary in this Agreement, Developer shall not assign any of its rights or obligations under any Loan Document without the prior written consent of City, which consent may be withheld in City's sole and absolute discretion. Any such assignment without such consent shall, at City's option, be void. 21.6 Prior Agreements; Amendments; Consents. This Agreement (together with the other Loan Documents) contains the entire agreement between the City and Developer with respect to the Loan and the Property, and all prior negotiations, understandings and agreements are superseded by this Agreement and such other Loan Documents. No modification of any Loan Document (including waivers of rights and conditions) shall be effective unless in writing and signed by the party against whom enforcement of such modification is sought, and then only in the specific instance and for the specific purpose given. 21.7 Governing Law. All of the Loan Documents shall be governed by, and construed and enforced in accordance with, the laws of the State of California and Federal law, whichever is more stringent. Developer irrevocably and unconditionally submits to the jurisdiction of the Superior Court of the State of California for the County of Orange or the United States District Court of the Central District of California, as City may deem appropriate, in connection with any legal action or proceeding arising out of or relating to this Agreement or the Loan Documents. Assuming proper service of process, Developer also waives any objection regarding personal or in rem jurisdiction or venue. 21.8 Severability of Provisions. No provision of any Loan Document that is held to be unenforceable or invalid shall affect the remaining provisions, and to this end all provisions of the Loan Documents are hereby declared to be severable. 21.9 Headings. Article and section headings are included in the Loan Documents for convenience of reference only and shall not be used in construing the Loan Documents. 40 251 -46 21.10 Conflicts. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, this Agreement, unless otherwise expressly provided, shall prevail; provided however that, with respect to any matter addressed in both such documents, the fact that one document provides for greater, lesser or different rights or obligations than the other shall not be deemed a conflict unless the applicable provisions are inconsistent and could not be simultaneously enforced or performed. 21.11 Time of the Essence. Time is of the essence under this Agreement and in the performance of every term, covenant, and obligation contained herein. 21.12 Conflict of Interest. No member, official or employee of the City shall have any direct or indirect interest in this Agreement, nor participate in any decision relating to the Agreement which is prohibited by law. 21.13 Warranty Against Payment of Consideration. Developer warrants that it has not paid or given, and will not pay or give, any third person any money or other consideration for obtaining this Agreement. 21.14 Nonliability of City Officials and Employees. No member, official or employee of City shall be personally liable to Developer, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Developer or successor, or on any obligation under the terms of this Agreement. 21.15 Plans and Data. Where Developer does not proceed with the work and rehabilitation of the Property, and when this Agreement is terminated with respect thereto for any reason, Developer shall deliver to City any and all plans and data concerning the Property, and City or any person or entity designated by City shall have the right to use such plans and data without compensation to Developer. Such right of City shall be subject to any right of the preparer of the plans to their use. 21.16 Authority to Enter Agreement. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify the City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 41 251 -47 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date set forth at the beginning of this Agreement. 940 Minnie, LP a California limited partnership MANAGING GENERAL PARTNER OHDC Properties I, LLC a California nonprofit, public benefit corporation LE Eunice Bobert, Chief Executive Officer DEVELOPER GENERAL PARTNER C &C Properties Group I, LLC a California limited liability company BY: Cottle Family Trust Dated 3/8/87, its Member Barry Cottle, Trustee 42 251 -48 ATTEST: CITY OF SANTA ANA Maria D. Huizar David Cavazos Clerk of the Council City Manager APPROVED AS TO FORM: SONIA R. CARVALHO, City Attorney By: e Sandoval ,,Chief Assistant City Attorney 43 251 -49 LIST OF EXHIBITS Exhibit A— Legal Description Exhibit B — Project Budget & Sources and Uses of Funds Exhibit C — Scope of Work Exhibit D — Project Schedule and Tasks Exhibit E — Deed of Trust Exhibit F — City /HOME Loan Note Exhibit G — Affordability Restrictions on Transfer of Title Exhibit H — City's Affirmative Marketing Program Exhibit I — City of Santa Ana Rehabilitation Standards 251 -50 Exhibit A Legal Description The land referred to in this Commitment is situated in the City of Santa Ana, County of Orange, State of California, and is described as follows: PARCEL 1: LOT 16 OF TRACT NO. 2437, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 109, PAGES 39 AND 40 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. APN: 011 - 256 -05 PARCEL 2: THAT PORTION OF LOT "A" OF TRACT NO. 2437, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 109, PAGES 39 AND 40 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, LYING BETWEEN THE WESTERLY PROLONGATION OF THE SOUTHERLY LINE OF LOT 16 AND THE WESTERLY PROLONGATION OF THE NORTHERLY LINE OF LOT 16 OF SAID TRACT NO. 2437, WHICH WOULD PASS WITH THE CONVEYANCE OF SAID LOT 16, DESCRIBED IN PARCEL 1, ABOVE. APN:011- 251 -48 251 -51 940 S. Minnie, Santa Ana Use of Funds Sources City of Santa Bank Loan Total Ana (3) Developer Acquisition Cost $ 1,050,000 $ 1,050,000 General Development Costs Residential Construction () $ 400,000 $ 264,990 $ 135,010 Contractor Overhead 4.5% $ 18,000 $ 18,000 Contractor GR 1.5% $ 6,000 $ 6,000 Contractor Profit 8.0% $ 32,000 $ 32,000 Construction Contigency (Residential) 10.0% $ 40,000 $ 40,000 Architecture- Design $ 4,000 $ 4,000 Engineering $ 2,000 $ 2,000 Lender Appraisal $ 5,000 $ 5,000 Environmental $ 5,000 $ 5,000 Relocation (Z) $ 196,204 $ 159,573 $ 36,631 Perm Loan Fees $ 7,557 $ 7,557 Title /Recording /Escrow- Permanent $ 5,000 $ 5,000 Insurance $ 7,500 $ 7,500 Real Estate Taxes $ 3,360 $ 3,360 Soft Cost Contigency $ 50,000 $ 50,000 Legal: Acqusition $ 2,500 $ 2,500 Permanent Closing $ 5,000 $ 5,000 Organization of Ptrshp $ 2,500 $ 2,500 Operating Reserve $ 20,000 $ 20,000 Replacement Reserve $ 16,000 $ 16,000 Lender Counsel $ 10,000 $ 10,000 Developer Fee 8.0% $ 151,010 $ 71,010 $ - $ 80,000 $ 988,631 $ 372,000 $ 500,000 $ 116,631 Total Project Cost/Total Sources $ 2,038,631 $ 1,422,000 $ 500,000 $ 116,631 " Construction cost estimate does not assume the payment of Davis Bacon wages (2) Development budget includes costs for relocation. (3) Developer will bridge bank loan until construction completion. 251 -52 Exhibit C Scope of Work The proposed 940 S. Minnie project involves the acquisition, rehabilitation, and reconfiguration of a 10 unit building into an 8 unit building. The building currently consists of 10 one - bedroom units. To better suit large families the building will be reconfigured to 4 one - bedroom, 2 two- bedroom, and 2 three - bedroom units. INTERIOR WORK - Interior Demolition- - Framing- - Electrical- o Demolition work will include removal of cabinets, HVAC units, appliances, finish hardware, electrical fixtures and finish items, demo of existing bathrooms, and demo of living rooms and kitchens. • Existing walls and subfloors to be reframed on an as needed basis due to dryrot and termite damage. • New framing associated with the reconfiguration of the existing units. • Deck plywood to be replaced due to water damage and decks will be sloped so that they fall away from the buildings. • New outlets, switches, and electrical fixtures. • Kitchen outlets will be modified as necessary to meet code requirements. • Rewire of the units that are being subdivided. Low Voltage- Existing low voltage cable and telephone system to be reworked so as to be operational. Outlets and plates to be replaced. Plumbing- o The units will receive new: Shower valves - 10 total Tubs /Showers -10 total • Sinks- bathroom 10, Kitchen 8 • Garbage disposals -8 total Toilets- 10 total Fixtures -10 total o Existing drain lines and hot and cold copper water supply lines will be replaced on an as needed basis. 251 -53 Exhibit C • Drain lines to be snaked. • New individual hot water heaters. • Test all gas lines within each unit and repair /replace as necessary. Drywall- New drywall installed will be installed as necessary. Tub /Shower surrounds- Each tub /shower will receive a new tile tub surround with shower enclosure. o 10 total Paint- each unit will be painted throughout. Finish Hardware - o New finish hardware will be installed throughout. • New interior and front doors- 44 total • Casing • Base board • Door hardware -44 total • Stops -44 total • Towel bars -10 total Toilet paper holders -10 total Vanity mirrors -10 total Shelving Cabinets- Each unit will receive new kitchen cabinets. o 8 total -16 If uppers and lowers. Appliances- • Stoves- 8 total • Refrigerators- 8 total Countertops- New laminate countertops will be installed o 8 total Flooring- Vinyl, carpet, and carpet pad will be installed. HVAC- New combination wall heater units to be installed. New bath and kitchen fans to be installed which will be vented to the exterior to improve air quality. • Wall units- 8 total • Kitchen range hood- 8 total • Bathroom fan- 10 total 251 -54 Exhibit C Windows- New dual pane windows with Low -E glass to be installed o 36 total Window coverings- new window blinds to be installed. o 26 total (blinds shall not be installed in bathroom locations.) Final clean up- Final clean up of the units after construction is complete. Field Labor- General labor for the construction phase. EXTERIOR WORK Exterior demo- demolition work will include stucco, doors, windows, and decks Concrete- Misc concrete walkways and paths to be replaced as needed. Decks- Existing decking system to be repaired. Wrought Iron- New wrought access gates and fencing. Stucco- Stucco repairs to be done as needed. - Electrical- New site lighting throughout property. Photo cells will be installed to regulate the use of exterior fixtures. - Landscaping- New irrigation and plants as needed. - Landscape demo - removal of existing plant material as needed - Roofing- New composition shingle roof. - Gutters and downspouts- New rain gutter system will be installed on all buildings. Painting- Exterior painting to occur throughout property. This will include fascia, stair railing, gates, wrought iron, exterior doors, stucco, and all metal trim. Fire extinguishers -New fire extinguishers will be installed. Mailboxes- New mailboxes will be installed. 251 -55 Exhibit C Construction dumpster- Waste Management construction 40 yard waste dumpsters will be used during construction for disposal of debris. Pest control -The building will be fumigated for termites, bugs and rodents prior to construction. Temporary services- Includes: fencing, toilet, tool storage containers, and jobsite office trailer. 251 -56 Exhibit D 940 S. Minnie Street Project Tasks and Schedule Task Date City Council Funding Commitment and Density Bonus for Parking Variance Approval March 4, 2014 Permanent Financing Commitment Approved/Signed Aril, 2014 HOME Funds Fully Committed May 1, 2014 Close of Escrow- Earliest Date to Close Escrow Ma 15, 2014 Close of Escrow- Outside Date to Close Escrow August 13, 2014 Initiate Relocation Process August 15, 2014 Construction Permit Application August 15, 2014 Construction Permit Issued/ Completion of Relocation Process November 15, 2014 Begin Construction December, 2014 Construction Completed August, 2015 Project Fully Leased November 2015 The Schedule of Performance is subject to revision from time to time as mutually agreed upon in writing between Developer and the City Manager, and City Manager is authorized on behalf of City to agree to make such revisions as he deems reasonably necessary. 251 -57 Exhibit E FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: Community Development Agency City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 (M -37) Santa Ana, California 92702 Attn: Housing Manager CITY DEED OF TRUST AND ASSIGNMENT OF RENTS (940 S. Minnie Street, Santa Ana, CA) THIS CITY DEED OF TRUST AND ASSIGNMENT OF RENTS (the "City Deed of Trust ") made this _ day of May, 2014, by 940 Minnie, L.P., a California limited partnership (the "Truster "), AmeriNational Community Services, a California corporation (the "Trustee "), and the City of Santa Ana, a charter city and municipal corporation (the 'Beneficiary "). Trustor, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Exhibit A and more commonly lmown as 940 South Minnie Street, Santa Ana, California (the "Property "); TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this City Deed of Trust; TOGETHER with the right, power and authority during the continuance of these Trusts, to collect the rents, issues, and profits of the Property, reserving unto the Trustor the right, prior to any default by Trustor in payment of the indebtedness secured by this City Deed of Trust or in the performance of any agreement under this City Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected, or hereafter to be erected, on the Property which are necessary to the complete and comfortable use and 251 -58 occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are, or shall be attached to said building or buildings in any manner; and all of the foregoing, together with the Property, is herein referred to as the "Security "; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; TO SECURE to the Beneficiary (a) the repayment of the sums evidenced by a promissory note to the Beneficiary executed by Trustor of even date herewith in the principal amount of One Million Four Hundred Twenty Two Thousand Dollars ($1,422,000.00) (the "City Loan Note "); (b) the performance of the covenants and agreements of Borrower contained in a certain Loan Agreement as hereinafter defined; and (c) the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this City Deed of Trust; and the performance of the covenants and agreements of Trustor contained herein. TRUSTOR AND THE BENEFICIARY COVENANT AND AGREE AS FOLLOWS: 1. The Loan Agreement. This City Deed of Trust is executed and delivered, along with the City Loan Note and the Loan Agreement, to benefit the Property. A copy of said Loan Agreement is on file as a public record with the Beneficiary and is incorporated herein by reference (the "Agreement "). Trustor acknowledges that but for the execution of this City Deed of Trust, the Beneficiary would not enter into the Agreement or City Loan Note secured by this City Deed of Trust. 2. Trustor's Estate. Truster is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security; that other than this City Deed of Trust, the Security is not encumbered except for obligations secured by deeds of trust, or any other security agreement, to secure financing or refinancing for the purchase and rehabilitation of the Property. 3. Repayment of the Loan. Truster will promptly repay, when due, the principal and interest, as required by the City Loan Note secured by this City Deed of Trust. 4. Subordination. This obligation secured by this City Deed of Trust shall be subordinated to the Senior Loan and to the City Deed of Trust and Note. 5. Prior Mortgages and Deeds of Trust; Charges; Liens. Trustor shall perform all of Trustor's obligations under any mortgage, deed of trust or other security agreement with a lien which has priority over this Instrument, including Trustor's covenants to make payments when due (subject to an applicable notice and cure provisions). Trustor will pay all taxes, assessments and other charges, fines and impositions attributable to the Security 251 -59 which may attain a priority over this Deed of Trust, by Trustor making any payment, when due, directly to the payee thereof Trustor will promptly furnish to the Beneficiary all notices of amounts due under this paragraph, and in the event Trustor makes payment directly, Trustor will promptly discharge any lien which has priority over this Deed of Trust; provided that Trustor will not be required to discharge the lien of the Deed of Trust securing any senior lender or any other lien described in this paragraph so long as Trustor will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to the Beneficiary, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof. 6. Hazard Insurance. Trustor will keep the Security insured by such insurance policies in such amounts and for such periods as called for in the Agreement. All insurance policies and renewals thereof will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of any senior lender and the Beneficiary as their interests may appear and in a form acceptable to the Beneficiary. The Beneficiary shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and Trustor shall promptly famish to the Beneficiary, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums. In the event of loss, Trustor will give prompt notice to the insurance carrier and the Beneficiary or its designated agent. The Beneficiary, or its designated agent, may make proof of loss if not made promptly by Trustor. The Beneficiary shall receive 30 days advance notice of cancellation of any insurance policies required under this Section. Unless the Beneficiary and Trustor otherwise agree in writing, insurance proceeds, subject to the rights of any senior lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the security of this City Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this City Deed of Trust would be impaired, again, subject to the rights of any senior lender, the insurance proceeds will be used to repay the loan secured by this Deed of Trust, with the excess, if any, paid to Trustor. If the Security is abandoned by Trustor, or if Trustor fails to respond to the Beneficiary, or its designated agent within 30 days from the date notice is mailed by either of them to Trustor that the insurance carrier offers to settle a claim for insurance benefits, the Beneficiary, or its designated agent, is authorized to collect and apply the insurance proceeds at the Beneficiary's option either to restoration or repair of the Security or to repay the loan. If the Security is acquired by the Beneficiary, all right, title and interest of Trustor in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the Beneficiary to the extent of the sums secured by this City Deed of Trust immediately prior to such sale or acquisition subject to the rights of any senior lender. 7. Preservation and Maintenance of Security. Trustor will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 251 -60 8. Protection of the Beneficiary's Security. If Trustor fails to perform the covenants and agreements contained in this City Deed of Trust or if any action or proceeding is commenced which materially affects the Beneficiary's interest in the Security, including, but not limited to, default under the City Deed of Trust securing any senior lender, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the Beneficiary, at the Beneficiary's option, upon notice to Trustor, may make such appearances, disburse such sums and take such action as it determines necessary to protect the Beneficiary's interest, including, but not limited to, disbursement of reasonable attorneys' fees and entry upon the Security to make repairs. Any amounts disbursed by the Beneficiary pursuant to this paragraph, with interest thereon, will become an indebtedness of Trustor secured by this City Deed of Trust. Unless Trustor and the Beneficiary agree to other terms of payment, such amount will be payable upon notice from the Beneficiary to Trustor requesting payment thereof, and will bear interest from the date of disbursement at the rate payable from time to time on outstanding principal under the City Loan Note unless payment of interest at such rate would be contrary to applicable law, in which event such amounts will bear interest at the highest rate permissible under applicable law. Nothing contained in this paragraph will require the Beneficiary to insure any expense or take any action hereunder. 9. Inspection. The Beneficiary may make, or cause to be made, reasonable entries upon and inspections of the Security during normal business hours; provided that the Beneficiary will give Trustor reasonable notice of inspection. 10. Forbearance by the Beneficiary Not a Waiver. Any forbearance by the Beneficiary in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by the Beneficiary will not be a waiver of the Beneficiary's right to accelerate the maturity of the indebtedness secured by this City Deed of Trust. 11. Remedies Cumulative. All remedies provided in this City Deed of Trust are distinct and cumulative to any other right or remedy under this City Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. 12. Successors and Assieps Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the Beneficiary and Trustor subject to the provisions of this City Deed of Trust. 13. Joint and Several Liability. All covenants and agreements of Trustor shall be joint and several. 14. Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Trustor provided for in this City Deed of Trust will be given by certified mail, return receipt requested, addressed to Trustor at 414 East Chapman Avenue, Orange, California 92866, with copies to C &C Properties Group 1, LLC. 1411 4 251 -61 Yorba St., Suite 200, Tustin, CA 92780; (b) any notice to the Beneficiary will be given by certified mail, return receipt requested, to the Beneficiary at 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, California 92702, Attention: Housing Manager, or at such other address as the Beneficiary may designate by notice to Truster as provided above, and (c) to Trustee at 8121 E. Florence Avenue, Downey, California 90240. Notice shall be effective as of the date received as shown on the return receipt. 15. Governing Law. This City Deed of Trust shall be governed by the laws of the State of California. 16. Severability. In the event that any provision or clause of this City Deed of Trust or the City Loan Note conflicts with applicable law, such conflict will not affect other provisions of this City Deed of Trust or the City Loan Note which can be given effect without the conflicting provision, and to this end the provisions of the City Deed of Trust and the City Loan Note are declared to be severable. 17. Captions. The captions and headings in this City Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 18. Default in Foreclosure: Remedies. Upon Trustees breach of any covenant or agreement of Trustor in this City Deed of Trust or the City Loan Note secured by this City Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this City Deed of Trust, the Beneficiary may declare all sums secured by this City Deed of Trust immediately due and payable by delivering to Trustor notice thereof specifying: (1) The breach; (2) the action required to cure such breach; (3) a date not less than 30 days from the date the notice is received by Trustor as shown on the return receipt, by which such breach is to be cured provided, however, that if such default is not reasonable susceptible to being cured within 30 days, Trustor shall have a reasonable period to cure the defect so long as Trustor is diligently prosecuting the cure to completion; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this City Deed of Trust and sale of the Security. The notice will also inform Truster of Trustor's right to reinstate after acceleration and the right to bring a court action to assert the non - existence of default or any other defense of Trustor to acceleration and sale. Notwithstanding anything to the contrary contained herein, a "default" shall not include (i) a transfer of a general partner's interest in Truster when made in connection with the exercise by the Trustor's limited partner (the "Limited Partner ") of its rights upon a default by a general partner under the Truster's Agreement of Limited Partnership agreement (the "Partnership Agreement ") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Trustor 251 -62 pursuant to the right of first refusal or to the general partners of Truster pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in connection with a default by the Limited Partner under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of an interest in a limited partner of the Trustor, provided that after any such sale, transfer or other disposition an affiliate of Truster remains the managing member or general partner of such limited partner. If the breach is not cured on or before the date specified in the notice or such longer period as provided above or in the City Loan Note or the Agreement, the Beneficiary, at the Beneficiary's option, may: (a) declare all of the sums secured by this City Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by California law; (b) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of the Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (d) deliver to the Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et seq., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. Notwithstanding anything to the contrary herein, Beneficiary hereby agrees that any cure of any default made or tendered by Trustor's limited partner shall be deemed to be a cure by Trustor and shall be accepted or rejected on the same basis as if made or tendered by Trustor. The Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorneys' fees. 19. Truster's Right to Reinstate. Notwithstanding the Beneficiary's acceleration of the sums secured by this City Deed of Trust, Trustor will have the right to have any proceedings begun by the Beneficiary to enforce this City Deed of Trust discontinued at any time prior to 5 days before sale of the Security pursuant to the power of sale contained in this City Deed of Trust or at any time prior to entry of a judgment enforcing this City Deed 251 -63 of Trust if. (a) Trustor pays the Beneficiary all sums which would be then due under this City Deed of Trust and no acceleration under the City Loan Note has occurred; (b) Trustor cures all breaches of any other covenants or agreements of Trustor contained in this Deed of Trust and the Affordability Restrictions on Transfer of Property; (c) Trustor pays all reasonable expenses incurred by the Beneficiary and the Trustee in enforcing the covenants and agreements of Trustor contained in this City Deed of Trust and the Affordability Restrictions, and in enforcing the Beneficiary's and the Trustee's remedies, including, but not limited to, reasonable attorneys' fees; and (d) Trustor takes such action as the Beneficiary may reasonably require to assure that the lien of this City Deed of Trust, the Beneficiary's interest in the Security and Trustor's obligation to pay the sums secured by this City Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this City Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. 20. Acceptance by Trustee. Trustee accepts this Trust when this City Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party to this City Deed of Trust of pending sale under any other deed of trust or any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee. 21. Reconvevance. Upon payment or forgiveness of all sums secured by this City Deed of Trust, the Beneficiary will request the Trustee to reconvey the Security and will surrender this City Deed of Trust and the City Loan Note to the Trustee. The Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any. 22. Substitute Trustee. The Beneficiary, at the Beneficiary's option, may from time to time remove the Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 23. Request for Notice. Trustor requests that copies of the notice of default and notice of sale be sent to Trustee at the address set forth in Section 14 above. 24. Nomecourse Liability. Neither Trustor nor any partner of Trustor shall have any personal liability under the Loan Agreement, City Loan Note, and this City Deed of Trust and any judgment, decree or order for payment of money obtained in any action to enforce the obligation of Trustor to repay the loan evidenced by such documents shall be enforceable against T In LOY only to the extern of Ttustor's interest in the Property. 251 -64 IN WITNESS WHEREOF, Truster has executed this City Deed of Trust as of the date first written above. 940 Minnie, LP a California limited partnership MANAGING GENERAL PARTNER OHDC Properties I, LLC a California nonprofit, public benefit corporation 10 Eunice Bobert, Chief Executive Officer DEVELOPER GENERAL PARTNER C &C Properties Group I, LLC a California limited liability company BY: Cottle Family Trust Dated 3/8/87, its Member in Barry Cottle, Trustee 251 -65 Exhibit F CITY LOAN NOTE SECURED BY SUBORDINATED DEED OF TRUST TO THE CITY OF SANTA ANA, CALIFORNIA $1,422,000.00 May _, 2014 Santa Ana, California 1. Principal Amount of Loan For value received, and 940 Minnie, L.P., a California limited partnership ( "Borrower ") promises to pay to the order of THE CITY OF SANTA ANA ( "City "), at 20 Civic Center Plaza, 6`h Floor, Santa Ana, California 92701, or at such other place as the City may from time to time designate in writing, or to the assignee of the City, the principal sum of ONE MILLION FOUR HUNDRED TWENTY TWO THOUSAND DOLLARS ($1,422,000.00) or so much thereof as shall be disbursed hereunder, with three percent interest (3.0 %) commencing upon filing of Notice of Completion. City and Borrower have heretofore entered into that certain Loan Agreement dated concurrently herewith (the "Loan Agreement "), pertaining to the acquisition and rehabilitation of certain real property described in the Loan Agreement as the 'Property," commonly known as 940 South Minnie Street, and the operation of the Property as affordable housing for Low Income households. This Note is made pursuant to, entitled to the benefits of and referred to as the City Loan Note in the Loan Agreement; that certain "Affordability Restrictions on Transfer of Property" between Borrower and City, dated on or about the date hereof; and that certain Subordinated City Deed of Trust and Assignment of Rents between Borrower and City, dated on or about the date hereof (the "City Deed of Trust "). This Note, the Loan Agreement, the Affordability Restrictions on Transfer of Title, and the Deed of Trust are sometimes collectively referred to herein as the "Loan Documents." The Loan Documents and the rights and responsibilities inure to the benefit of the City of Santa Ana. Any capitalized term which is not otherwise defined herein shall have the meaning ascribed to such term in the Loan Agreement. 2. Definitions. For the purpose of calculating the payments to be made by Borrower to City pursuant to this Note, the following terms shall have the following respective meanings: "Acquisition Costs" shall mean the costs and expenses of Borrower to acquire the Property, as set forth in the Project Budget attached to the Loan Agreement. "City Loan" shall mean the loan evidenced by this Note. 251 -66 Exhibit F "City's Percentage" with reference to the Residual Receipts, shall mean fifty percent (50 1/o) of the City's share of the total Residual Receipts from the Property as further described in Section 5 hereof. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 30. "Closing Costs" shall mean: (i) In the case of a Sale, reasonable brokerage commissions payable to a broker as a result of the Sale, which shall not in any event exceed the customary amount charged -for similar transactions in the immediate market place, costs of title insurance premiums, documentary stamp taxes, escrow fees, recording charges, loan repayment charges and other costs reasonably incurred with respect to the Property, in each case actually paid by Borrower as a condition of the Sale. (ii) In the case of a Refinancing, the reasonable and necessary costs of consumating such Refinancing, including, without limitation, loan fees, loan repayment charges, costs of title insurance premiums, escrow fees, recording fees and attorneys' fees. "Gross Revenues" shall mean all revenues and receipts of every kind actually received by Borrower from operating the Property, and all parts thereof, including, but not limited to, income from both cash and credit transactions, rental from leased and /or subleased spaces and parking fees and charges (but not including security deposits and other tenant deposits, except to the extent such deposits are forfeited to the Borrower under the tenant's lease). Gross Revenues also includes any casualty insurance proceeds in excess of those used to restore the Property and any rental interruption insurance proceeds. Any credit consideration shall be included in Gross Revenues at the time cash proceeds (principal, interest and /or other) are received. Borrower shall establish and maintain accounts for the Gross Revenues (the "'Project Accounts ") that are segregated from revenues and income received by Borrower from all other projects. Gross Revenues shall also include all interest earned on the Project Accounts. "Operating Expenses" shall mean the sum of the following: (i) payments of principal and interest and all other charges relating to the Senior Loan(s); (ii) a property management fee equal to 8% of gross rents; (iii) Owner Administration Fee of 6% of gross rents; (iv) Deposits into required reserves; 251 -67 Exhibit F (v) all other actual, reasonable cash operating costs and expenses, calculated on an amoral basis, that are directly attributable to managing and operating the Property, including, without limiting the generality of the foregoing, the following: costs and expenses for real and personal property taxes, special assessments or similar charges; water, fuel, electricity and other utilities; heating, ventilation and air conditioning expenses; labor; supplies; tools; equipment; insurance; advertising and marketing; accounting and legal fees; brokerage commissions and other leasing expenses; reasonable reserves for all anticipated expenses as approved by the City; and other such items constituting operation, maintenance and repair costs actually paid by the Borrower, subject to the following conditions: (a) Depreciation and amortization expenses shall not be considered Operating Expenses, except as otherwise provided herein. (b) All furniture, fixtures, machinery and equipment expenditures with an individual cost of $1,000 or more and a useful life of more than one year, shall be amortized over a period determined in accordance with generally accepted accounting principles (except to the extent purchased with reserve funds which have otherwise been included as an Operating Expense). Such amortization shall assume equal annual installments of principal and interest with an interest factor at the actual rate not to exceed the reference rate of the Bank of America plus two percent (2 %) if such furniture, fixtures, machinery and equipment are financed, or said reference rate plus two percent (2 %) if paid for in cash by Borrower. All furniture, fixtures, machinery and equipment with an individual cost of less than $200 or a useful life of less than one year shall be treated as expense items. (c) Any expenses, compensation or fees paid to any affiliate of Borrower shall only be included as Operating Expenses to the extent they are not in excess of the reasonable expenses, compensation or fees which would be payable to unrelated third parties in arms- length transactions for similar services in the Santa Ana, California area. (vi) Any other expenses necessary to meet senior lender requirements and requirements of Borrower's limited partner, or its assignee, as set forth in Borrower's Agreement of Limited Partnership (the "Partnership Agreement "). (vii) Deferred Developer Fee due to cost over -runs during initial rehabilitation. "Project" shall mean the acquisition and rehabilitation of the Property by Borrower pursuant to the Loan Agreement. "Property" shall ;nean the real property located at 940 South Minnie Street, Santa Alta, California, described in the City Deed of Trust. "Refinancing" shall mean changing the then existing financing on the Property by, without limitation, modifying the interest rate and /or the term of the existing Senior Loan, 251 -68 Exhibit F increasing or reducing the amount of the existing Senior Loan, paying off the existing Senior Loan and obtaining new Senior Loan. "Refinancing Proceeds" shall be disbursed as set forth in Section 7 hereof. "Residual Receipts" shall mean the Gross Revenues from the Properties located at 940 S. Minnie Street, Santa Ana, California, for each year, less deductions for Operating Expenses from the same buildings, applicable to each such year less the items listed in Article 5 of the Partnership Agreement, to the extent not already deducted as an Operating Expense. "Sale" shall mean any transfer, assignment, conveyance or lease (other than to a tenant for occupancy or a transaction between the Partners /Limited Partners) of the Property or any portion thereof, or any interest therein by the Borrower, and includes any transfer, assignment or sale of any partnership interest in the Borrower by an individual or entity which is a general or limited partner in the Borrower, or any interest by any individual or entity which holds an interest in any such general or limited partner in the Borrower, which brings the cumulative total of all such direct and indirect transfers, assignments and sales during the term of this Note to more than thirty -five percent (35 %) of the ownership interests in the Borrower, and any such transfer, assignment or sale of a direct or indirect partnership interest thereafter. Sale includes a sale in condemnation or under threat thereof. Sale does not include dedications and grants of easements to public and private utility companies of the kind customary in real estate development. "Sale Proceeds" shall be disbursed as set forth in Section 8 hereof. "Senior Loan" shall mean the senior loan being made by , concurrent to the City Loan for payment of a portion of the Acquisition and Rehabilitation Costs, and shall include any subsequent loan that refinances the initial Senior Loan. "Term" the term for repayment of this Note shall mean fifty -five (55) years from the date of recording. 3. Loan Repayment. Borrower shall make payments to the City as provided in Sections 5 (Residual Receipts), 7 (Refinancing Proceeds), 8 (Sale Proceeds) and 10 (Accelerated Loan Repayment). 4. Operating Capital Improvement Loan. If the replacement reserve account ( "reserves ") is depleted due to unforeseen repairs and the General Partner makes a loan to the Partnership, the reserves must be fully funded prior to repayment of said loan. Such loan shall be repaid with net cash flow prior to the residual receipt split. The outstanding loan balance will be reflected in the annual report. 251 -69 Exhibit F 5. Annual Loan Repayment. a. After any deferred Developer Fee has been paid, as set forth hereinabove, the Borrower shall thereafter make a loan payment to the City annually, in the amount of the lesser of the outstanding balance due under this Note or the City's Percentage of the Residual Receipts, as provided in this Section 5. b. Within ninety (90) days after the close of the initial Calendar Year following the Real Estate Closing and on or before the 90th day of each Calendar Year thereafter, the Borrower shall submit to the City a detailed statement of Gross Revenues and Operating Expenses attributable to the Property for the applicable Calendar Year, along with a computation of the amount of the Residual Receipts applicable to such Calendar Year with which to make a City Loan payment then due. c. Except as otherwise provided in Section 4, the Borrower shall pay to the City a total of fifty percent (50 %) of the Residual Receipts as payment of principal and interest under their loans. The remaining fifty percent (50 %) of the Residual Receipts shall remain with the Borrower. d. The Residual Receipts payment shall be made not later than one hundred fifty (150) days after the close of the Calendar Year. Such payment shall be applied first to any accrued but unpaid interest, if any, then to reduce the principal balance of the loans. 6. Reserved. Loan Repayment from Refinancing Proceeds. The Borrower shall make a loan payment to the City from every Refinancing that occurs during the term of this Note not to exceed the outstanding balance of principal and interest on this Note, to the extent of the City's Percentage of the Refinancing Proceeds (if any), as follows: the cash proceeds from such Refinancing shall be applied first to pay Closing Costs; next, the amount necessary to pay in full the balance remaining on the Senior Loan; next, the Borrower shall pay to the City fifty percent (50 %) of the Refinancing Proceeds to the extent of the outstanding balance on this Note. The remaining Refinancing proceeds shall remain with Borrower. Such payment shall be due on the date of such Refinancing, and shall be applied first to any accrued but unpaid interest, then to reduce the principal balance of the Loans. The City shall not be required to reconvey the lien of the Deed of Trust if Sale Proceeds are insufficient to repay the Loans in full. 8. Loan Repayment from Sale Proceeds. The Borrower shall make a loan payment, not to exceed the outstanding balance of principal and interest on this Note, to the City from any Sale that occurs during the term of the City Loan, to the extent of the City's Percentage of the Sale Proceeds, as follows: gross sale 251 -70 Exhibit F proceeds are applied first to pay Closing Costs, next to pay in full the balance remaining on the Senior Loan; next the Borrower shall pay to the City fifty percent (50 %) of the total Sale Proceeds, not to exceed the outstanding amount of principal and interest due on this Note. This fifty percent (50 %) represents the total payment due under the City Note. The remaining Sale Proceeds shall remain with Borrower. Such payment shall be due on the date of such Sale, and shall be applied first to any accrued but unpaid interest, then to reduce the principal balance of the Loans. The City shall not be required to reconvey the lien of the Deed of Trust if Sale Proceeds are insufficient to repay the Loans in full. 9. Buy Out Option. In the event that there is a decision to sell the Property to an outside entity not affiliated with the Developer or its Developer General Partner , the Managing General Partner of Borrower (Orange Housing Development Corporation) shall be given the first right of refusal or the General Partners may exercise the purchase option pursuant to the Borrower's Partnership Agreement. If neither of these options or the right of first refusal are exercised by the General Partners of Borrower, then the City shall have the second right of refusal. 10. Accelerated Loan Payment. The full principal amount outstanding plus accrued but unpaid interest thereon, shall be due and payable on the earlier to occur of the following: a. Sale or Refinancing of the Property as provided further in Section 15 hereof; unless: (i) in the case of a Sale in which the Sale Proceeds are insufficient to repay in full the City Loan, the City approves such sale -and the purchaser assumes the balance of the City Loan in accordance with the terms of this Note; or (ii) in the case of a Refinancing in which the Refinancing Proceeds are insufficient to repay in fall the City Loan, the City approves such Refinancing and the Borrower remains obligated pursuant to the terms of this Note. b. In event of default pursuant to any of the Loan Documents or the Senior Loan Documents. c. Any default by Borrower as to any other loan or loans by City to Borrower with respect to the Property; or d. The date that is fifty five (55) years after the date of execution of this Note. On that date, the City agrees to review the performance of the Property and consider in good faith any reasonable request by Borrower to modify the terms or extend the Term of this City Loan Note. 11 251 -71 Exhibit F 11. Prepayment Borrower may prepay the outstanding principal balance under this Note, in whole or in part, together with any accrued but unpaid interest, if any, and other sums owed to the City under this Note, if any, at any time without penalty. 12. Lawful Money. Principal and interest are payable in lawful money of the United States of America. 13. Application of Pavments: Late Charges. a. Any payments received by the City pursuant to the terms hereof shall be applied first to sums, other than principal and interest, due the City pursuant to this Note, next to the payment of all interest accrued to the date of such payment, and the balance, if any, to the payment of principal. b. If any payment is not received by the City within ten (10) days following the due date thereof, then in addition to the remedies conferred upon the City pursuant to this Note and the other Loan Documents, (i) a late charge of four percent (4 %) of the amount due and unpaid will be added to the delinquent amount to compensate the City for the expense of handling the delinquency and (ii) the amount due and unpaid, excluding the late charge, shall bear interest at the highest annual rate which may lawfully be charged and collected under applicable law on the obligation evidenced by this Note, computed from the date on which the amount was due and payable until paid. Without prejudice to the rights of the City hereunder or under any of the other Loan Documents, Borrower shall indemnify the City against, and shall pay the City on demand, any expense or loss which it may sustain or incur as a result of the failure by Borrower to pay when due any installment of interest and /or principal, fees, or other amounts payable to the City under this Note or any other Loan Document, to the extent that any such expense or loss is not recovered pursuant to such foregoing provisions. A certificate of the City setting forth the basis for the determination of the amounts necessary to indemnify the City in respect of such expenses or direct loss, submitted to Borrower by the City, shall be conclusive and binding for all purposes except as immediately corrected by Borrower notice to City. 14. Securi This Note is secured by the City Deed of Trust. 15. Acceleration by Reason of Transfer or Financine. a. In order to induce City to make the loan evidenced hereby, Borrower agrees that in the event of any transfer of the Property without the prior written consent of City (other than a transfer resulting from a foreclosure, or conveyance by deed in lieu of foreclosure, 251 -72 Exhibit F by the holder of the Senior Loan Deed of Trust), City shall have the absolute right at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. City may grant or deny such consent in its sole discretion and, if consent should be given, any such transfer shall be subject to this Section 12, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. Such assumption shall not, however, release Borrower from any liability thereunder without the prior written consent of City. b. As used herein, "transfer" includes the Sale, agreement to sell, transfer or conveyance of the Property, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or otherwise, the execution of any installment land sale contract or similar instrument affecting all or a portion of the Property, or the lease of all or substantially all of the Property. 'Transfer' shall not include the leasing of individual residential units on the Property, so long as Borrower complies with the provisions of the Loan Agreement and the Affordable Housing Restrictions relating to such leasing activity, nor shall it include a conveyance of the Property to a limited partnership in which Borrower is a general partner, or to a corporation that is wholly owned by the Borrower and that is formed for the sole purpose of owning and operating the Property, or the sale back to the Borrower. In the event of any Refinancing or partial Refinancing in an amount in excess of the balance of the Senior Loan, without the prior written consent of City (which consent City may grant or deny in its sole discretion), then the entire outstanding balance of the City Loan together with all accrued and unpaid interest, shall be repaid to the City at the time of each Refinancing or partial Refinancing. c. Notwithstanding anything to the contrary contained herein, a "transfer" shall not include (i) a transfer of a general partner's interest in Borrower when made in connection with the exercise by the Borrower's limited partner (the "Limited Partner ") of its rights upon a default by a general partner under the Borrower's partnership agreement (the "Partnership Agreement ") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Borrower pursuant to the right of first refusal or to the general partners of Borrower pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in connection with a default by the Limited Partner under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of an interest in a limited partner of the Borrower. 16. Event of Default. Subject to the provisions of Sections 23 and 25 hereof, the occurrence of any of the following shall be deemed to be an event of default ( "Event of Default ") hereunder: (a) failure by 251 -73 Exhibit F Borrower to make any payments provided for herein, and if such default is not made good within five (5) days of the due date; (b) failure by Borrower to perform any covenant or agreement in the Deed of Trust, the Loan Agreement, or the Affordability Restrictions on Transfer of Property within thirty (30) days after written demand therefor by City (or, in the event that more than thirty (30) days is reasonably required to cure such default, should Borrower fail to promptly commence such cure, and diligently and continuously prosecute same to completion); or (c) a default under the Senior Loan Deed of Trust that remains uncured after the cure period, if any, provided therein. 17. Remedies. Upon the occurrence of an Event of Default, after any applicable notice has been provided and the expiration of any applicable cure period therefore, City may declare all sums evidenced hereby immediately due and payable by delivery to the Trustee named in the City Deed of Trust securing this Note, and to Borrower, written declaration of default and demand for sale, and written notice of default and of election to cause the Property to be sold, which notice Trustee shall cause to be duly filed for record and City may foreclose on the City Deed of Trust. City shall also deposit with Trustee the Deed of Trust, this Note and all documents evidencing expenditures secured thereby and evidenced hereby. Upon the occurrence of an Event of Default (and so long as such Event of Default shall continue), the entire balance of principal together with all accrued interest shall bear interest at the Bank of America reference rate on the due date of the delinquent payment plus four percent (4 %). No delay or omission on the part of the City in exercising any right under this Note or under any of the other Loan Documents shall operate as a waiver of such right. 18. Attorneys' Fees. If this City Loan Note is not paid when due or if any Event of Default occurs, Borrower promises to pay all costs of enforcement and collection, including but not limited to, reasonable attorneys' fees, whether or not any action or proceeding is brought to enforce the provisions hereof. 19. Severability. Every provision of this Note is intended to be severable. In the event any term or provision hereof is declared by a court of competent jurisdiction, to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. 20. Number and Gender. In this Note the singular shall include the plural and the masculine shall include the feminine and neuter gender, and vice versa, if the context so requires. 251 -74 Exhibit F 21. Non - recourse. The City Loan is a nonrecourse obligation of the Borrower. Neither Borrower nor any other party shall have any personal liability for repayment of the City Loan or for any other amounts under any of the documentation evidencing, securing or describing the City Loan. The sole recourse of City under this Note and the Deed of Trust for repayment of the City Loan and for such other amounts arising therefrom shall be the exercise of its rights against the Property and related security thereunder. 22. Subordination. It is hereby expressly agreed and acknowledged by Borrower and City that the City Deed of Trust is a subordinate deed of trust, and that this Note is subject and subordinate to the Senior Loan Deed of Trust held by 23. Notice of Default. a. Subject to the applicable cure periods set forth in Section 16 and extensions of time set forth in Section 25, and subject to the further provisions of this Section 23, failure or delay by the Borrower to perform any term or provision of this Note constitutes a default under this Note. The Borrower must immediately commence to cure, correct, or remedy such failure or delay and shall complete such cure, correction or remedy -with reasonable diligence and during any period of curing shall not be in default. b. The City shall give written notice of default to the Borrower, specifying the default complained of by the City. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. C. Except in the case of a monetary event of default, the Borrower shall not be in default so long as it endeavors to complete such cure, correction or remedy with reasonable diligence, provided such cure, correction or remedy is completed within the applicable time period set forth herein after receipt of written notice (or such additional time as may be deemed by the City to be reasonably necessary to correct the default). d. Any failures or delays by the City in asserting any of its rights and remedies as to any default shall riot operate as a waiver of any default or of any such rights or remedies. Delays by the City in asserting any of its rights and remedies shall not deprive the City of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. 10 251 -75 Exhibit F e. If a monetary event of default occurs under the terms of this Note or the City Deed of Trust, prior to exercising any remedies thereunder City shall give Borrower written notice of such default. Borrower shall have a period of seven (7) days after such notice is given within which to cure the default prior to exercise of remedies by City under this Note and the City Deed of Trust. f. If a non - monetary event of default occurs under the terms of this Note or the City Deed of Trust, prior to exercising any remedies thereunder, City shall give Borrower notice of such default. If the default is reasonably capable of being cured within thirty (30) days, Borrower shall have such period to effect a cure prior to exercise of remedies by the City under this Note and the Deed of Trust. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Borrower (i) initiates corrective action within said period, and (ii) diligently, continually, and in good faith works to effect a cure as soon as possible, then borrower shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by City. In no event shall City be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within one hundred eighty (180) days after the first notice of default is given. 24. Insurance and Condemnation. In the event of any fire or other casualty to the Project or eminent domain proceedings resulting in condemnation of the Project or any part thereof, Borrower shall have the right to rebuild the Project, and to use all available insurance or condemnation proceeds therefor, provided that (a) such proceeds are sufficient to keep the City Loan in balance and rebuild the Project in a manner that provides adequate security to City for repayment of the City Loan or if such proceeds are insufficient then Borrower shall have funded any deficiency, (b) City shall have the right to approve plans and specifications for any major rebuilding and the right to approve disbursements of insurance or condemnation proceeds for rebuilding under a construction escrow or similar arrangement, and (c) no material default then exists under this Note or the Deed of Trust. If the casualty or condemnation affects only part of the Project and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the City Loan in a manner that provides adequate security for repayment of the remaining balance of the City Loan. 25. Force Mai cure. Notwithstanding specific provisions of this Note, performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; acts of God or other deities; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the City or any other public or governmental City or entity (except that any act or failure to 11 251 -76 Exhibit F act of City shall not excuse performance by City); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time the party claiming such extension gives notice to the other party, provided notice by the party claiming such extension is given within thirty (30) days after the commencement of the cause. Times of performance under this Note may also be extended in writing by the City and the Borrower. 26. Assianments. The City, and the assignee of the City, shall have the right to assign this Note and the Deed of Trust securing this Note, without any further act of Borrower. The assignee shall give notice to Borrower as soon as practicable after such assignment. This City Note is hereby agreed to and executed on the date first set forth above. "BORROWER" 940 Minnie, LP a California limited partnership MANAGING GENERAL PARTNER OHDC Properties I, LLC a California nonprofit, public benefit corporation : Eunice Bobert, Chief Executive Officer DEVELOPER GENERAL PARTNER C &C Properties Group I, LLC a California limited liability company BY; Cottle Family Trust Dated 3/8/87, its Member am Barry Cottle, Trustee 12 251 -77 Exhibit G RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Santa Ana Community Development Agency Housing Department M -37 20 Civic Center Plaza, 6th Floor P.O. Box 1988 Santa Ana, California 92702 SPACE ABOVE THIS LINE FOR RECORDING USE FREE RECORDING REQUESTED [Government Code Section 6103] AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (940 S. Minnie Street, Santa Ana, CA) THESE AFFORDABLE HOUSING RESTRICTIONS ON TRANSFER OF PROPERTY (the "Restrictions ") are entered into as of May , 2014, by and among and 940 Minnie, L.P., (referred to herein as the "Developer ") a California limited partnership, the City of Santa Ana, a charter city and municipal corporation (the "City "). A. Developer is the owner of that certain real property located at 940 South Minnie Street, (the "Property ") located in the City of Santa Ana more particularly described in Exhibit A, which is attached hereto and incorporated herein by this reference. B. For the purpose of providing eight units of housing that will be affordable to Very Low Income households ( "Assisted Units "), the Developer, the City have entered into that certain Loan Agreement, dated on or about the date hereof (the "Loan Agreement') to which these Restrictions are attached as Exhibit G, which, along with all of its attachments, is incorporated herein by this reference (any capitalized term that is not otherwise defined in these Restrictions shall have the meaning ascribed to such term in the Loan Agreement). C. The Loan Agreement provides, among other things, for the use of the Property for affordable housing with all Assisted Units being restricted to Very Low Income households, at Affordable Rent(s). D. The Loan Agreement contains certain provisions relating to the use of the Property. 1 of 12 251 -78 NOW, THEREFORE, CITY AND DEVELOPER COVENANT AND AGREE AS FOLLOWS: 1. Developer covenants and agrees (for itself, its successors, its assigns, and every successor in interest to the Property or any part thereof) that Developer, such successors, and such assigns shall use the Property exclusively to provide affordable housing of Very Low Income households, as provided in these Restrictions and in the Loan Agreement. 2. Developer, for itself and its successors and assigns, hereby covenants and agrees that all of the apartments in the Property (the "Units ") shall be rented exclusively, at Affordable Rent, to Very Low Income households. Area median income levels and Affordable Rents are subject to adjustment from time to time as provided in Section 3 below. 3. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 3.1 Use Covenants and Restrictions. A. Developer agrees and covenants, which covenants shall run with the land and bind Developer, its successors, its assign and every successor in interest to the Property that Developer will make all rental units on the Property available to very low households at rents affordable to such households for fifty -five (55) years from the effective date of this Agreement. The HOME restrictions for the eight (8) HOME assisted units shall be enforced until the date that is fifteen (15) years after the date on which the City reports the Project as complete to the Department of Housing and Urban Development. Upon expiration of the 15 year HOME compliance period, the City will enforce affordability of the eight (8) units with the same income and rent restrictions as the other units, pursuant to City guidelines and the California Health and Safety Code, B. The Project shall consist of eight units. There shall be eight (8) HOME assisted units. The HOME assisted units shall be floating units and shall be distributed throughout the complex with comparable amenities to the other units. C. At initial lease up, households in the HOME assisted units cannot earn more than 50% of AMI, however existing tenants at the Property who are otherwise eligible under the HOME Program may continue their tenancy at the Property. Rental increases shall be in conformance with federal and state law. After the fifteen (15) year HOME compliance period, the City shall require that the units remain affordable, with rents calculated based on assumed household size at the same income levels, as required by the California Health & Safety Code. D. All of the units will be restricted to occupancy by fifty percent (50 %) of the Area Median Income (AMI). Current residents whose incomes exceed eighty percent (80 %) of the AMI will be allowed to remain. Rents for these households will be increased to either thirty (30 %) percent of their monthly household income or market rent for the neighborhood, whichever is lower. 2of12 251 -79 Exhibit G E. Affordable rents shall be governed by California Health and Safety Code Sections 50052.5 and 50053(b)(1), and as provided in the HOME Regulations 24 CFR section 92.2. F. Rents During Construction/Rehabilitation: (a) All units shall be charged the Low HOME rent, as amended from time to time (currently $903 for one - bedroom unit). 3.2 Affordable Gross Startine Rents (Less Reasonable Utility Allowance): Initial rents may be recalculated to allowable rental amounts at the time of initial lease -up following completion of construction in accordance with any changes in allowable rent and income tables as published by HUD. A. HOME Assisted Units # of Units Max Gross Monthly Rent Very Low I Bedroom 4 $ 903 2 Bedroom 2 $ 1,083 3 Bedroom 2 $ 1,252 (1) In no event shall the rent charged to the HOME assisted units be more than that amount of the low rent as published by HUD, as amended from time to time. 3.3 Rent Increases: On an annual basis, the City shall provide the Developer with the maximum allowable schedule of rents for the Property. In no event can Developer charge any tenant more than such amount. 4. Developer, its successors and assigns shall not charge rents for the Units in excess of the amounts set forth herein, as adjusted on the basis of the revised schedules of area median incomes issued from time -to -time by HUD. The Executive Director shall notify Developer in writing of the adjusted allowable maximum incomes and rents. 5. Developer shall adopt and include as part of its Management Plan (described in Section 11 below), written tenant selection policies and criteria for the Units, that meet the following requirements: (a) Are consistent with the purpose of providing housing for Very Low Income households; (b) Are reasonably related to program eligibility and the applicants' ability to perform the obligations of the lease; (c) Give reasonable consideration to the housing needs of households 3of12 251 -80 that would have a preference under 42 CFR §906.211 (Federal selection preferences for admission to Public Housing); (d) Provide for: (i) The selection of tenants from a written waiting list in the chronological order of their application, insofar as is practicable; and (ii) The prompt written notification to any rejected applicant of the grounds for any rejection; (e) Provide first priority in the selection of qualified eligible tenants to households that are referred by the City; and (f) Carry out the Affirmative Marketing procedures of the City of Santa Ana, which are designed to provide information and otherwise attract eligible persons from all racial, ethnic and gender groups in the housing market area to the units. Developer, the City shall cooperate to effectuate this provision prior to the initial renting, or upon occurrence of a vacancy, and the re- renting of any Restricted Units ( 24 CFR 92.351). 6. Developer, its successors and assigns, shall not refuse to lease a unit to a holder of a rental voucher under 24 CFR part 887 (Housing Choice Voucher Program) or to a holder of a comparable document evidencing participation in a HOME tenant -based assistance program because of the status of the prospective tenant as a holder of such certificate of family participation, rental voucher, or comparable HOME tenant -based assistance document. Total rents charged to such tenants, including the tenant contribution and rental assistance, shall not exceed the allowable rents as described above. 7. Any lease of any of the units must be for not less than one year, unless by mutual agreement between the tenant and the Developer. Should the tenant and Developer agree to a term of less than one year, said agreement shall be expressed in some type of written form, signed by the tenant, and maintained in the tenant's rental file held by the Developer. The lease may not contain any of the following provisions (in which references to "owner" shall mean the Developer, its successors or assigns): (a) Agreement by the tenant to be sued, to admit guilt, or to a judgment in favor of the owner in a lawsuit brought in connection with the lease; (b) Agreement by the tenant that the owner may take, hold, or sell personal property of household members without notice to the tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the housing Unit after the tenant has moved out of the Unit. The owner may dispose of this personal property in accordance with state law; (c) Agreement by the tenant not to hold the owner or the owner's agent legally responsible for any action or failure to act, whether intentional or negligent; 4of12 251 -81 (d) Agreement of the tenant that the owner may institute a lawsuit without notice to the tenant; (e) Agreement by the tenant that the owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties; (0 Agreement by the tenant to waive any right to a trial by jury; (g) Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease; and (h) Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. 8. Developer, its successors or assigns, must adhere to state law requirements with regard to termination of tenancy. 9. Developer shall maintain the improvements on the Property in compliance with all applicable housing quality standards [24CFR 92.504 (c)(6)] and state and local code requirements (California Health and Safety Code section 33418), and shall keep the Property free from any unreasonable accumulation of debris or waste materials. Developer shall also maintain in a healthy condition any landscaping planted on the Property. 10. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, there shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, sex, mental or physical disability, marital status, national origin or ancestry in the sale, lease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, as required by the Title VI of the Civil Rights Act of 1964, the Fair Housing Act (42 U.S.C. 3601 -20) and all implementing regulations, and the Age Discrimination Act of 1975, and all implementing regulations. 11. Not later than five (5) business days prior to the execution of the documents, Developer shall submit to the Executive Director a Management Plan in a form that is acceptable to the Executive Director, including, but not limited to, the components listed below. Approval of the Management Plan must be obtained from the Executive Director not later than the time for the Closing. Developer shall manage the Assisted Units in accordance with the approved Management Plan, including such amendments as may be approved in writing from time to time by the Executive Director, for the term of the income and rent restrictions contained in these Restrictions. The components of the Management Plan shall include: 5of12 251 -82 (a) Management Agent. Developer shall submit the name and qualifications of the proposed Management Agent. The Executive Director shall approve or disapprove the proposed Management Agent in writing based on the experience and qualifications of the Management Agent. (b) Management Agreement. Developer shall submit a copy of the proposed management agreement specifying the amount of the management fee, and the relationship and division of responsibilities between Developer and Management Agent. (c) Annual Budget and Projected Cash Flows. Prior to the Closing, and annually thereafter not later than ninety (90) days after the close of each calendar year thereafter, Developer shall submit a projected operating budget and cash flow to the Executive Director. The budget and cash flow shall be in a form that is acceptable to the Executive Director. (d) Tenant Selection Policies. Developer shall include in the Management Plan the tenant selection policies in accordance with Section 4, above. 12. If at any time the City determines that the units are not being managed or maintained in accordance with the approved Management Plan, Developer shall change the management agent or the practices complained of, upon receipt of written notice from the Executive Director. The Executive Director may require Developer to change management practices or to terminate the management contract and designate and retain a different management agent. The management agreement shall provide that it is subject to termination by Developer without penalty, upon thirty (30) days prior written notice, at the direction of the Executive Director. Within ten (10) days following a direction of the Executive Director to replace the management agent, the Developer shall select another management agent or make other arrangements satisfactory to the Executive Director or designee for continuing management of the units. 13. The covenants established in these Restrictions and any amendments hereto approved by the City and Developer shall, without regard to technical classification and designation, be binding for the benefit and in favor of the City and their respective successors and assigns. These Restrictions shall remain in effect for fifty -five (55) years. In its discretion, the City may defer repayment of the HOME Loan or the City may agree to such reasonable modifications to the requirements of these Restrictions, as they may determine are necessary for the continued maintenance and operation of the Assisted Units. The covenants against discrimination shall remain in effect for the period of these Restrictions. 14. Developer shall not request disbursement of HOME funds until the funds are needed to pay eligible costs. The City shall have the right to disapprove any request if the City determines the request is for an ineligible item or is otherwise not in compliance with or inconsistent with the Loan Agreement and these Restrictions [24 CFR 92.504 (c)(10)]. 15. Developer shall prepare, maintain and submit to the City, as appropriate, 6of12 251 -83 the following records and reports in compliance with 24 CFR 92.504 (c) (12): a. Annual Reports. Developer shall file with the City an Annual Report (herein referred to as the "Annual Report") within ninety (90) days following the end of each calendar year, commencing with the end of the calendar year (or portion thereof) in which the Real Estate Closing occurs. The Annual Report shall contain a certification by Developer as to such information as the City Executive Director may then require, including, but not limited to, the following: (1) The fiscal condition of the Project, including the Annual Budget and Project Cash Flow report required by Section 10 (c) of the Affordable Housing Restrictions which shall include a financial statement for the previous calendar year that includes a balance sheet and a profit and loss statement indicating any surplus or deficit in operating accounts; a detailed itemized listing of income and expenses; and the amounts of any fiscal reserves. Such Annual Budget and financial statement shall be prepared in accordance with generally accepted accounting practices. The City Executive Director may require that the financial statement be audited at Developer's expense by an independent certified public accountant acceptable to the Executive Director. (2) Any substantial physical defects in the Project, including a description of any major repair or maintenance work undertaken or needed in the previous and current years. Such statement shall describe what steps Developer has taken in order to maintain the Project in a safe and sanitary condition in accordance with applicable housing and building codes and the property standards set forth in 24 CFR 92.251. (3) The occupancy of the units indicating the income of each current resident and the current rents charged each resident and whether those rents include utilities, including records that demonstrate that the Project meets the requirements of 24 CFR 92.253 for tenant and participant protection under the HOME Program. (4) General management performance, including tenant relations and other relevant information. (5) Records that demonstrate that the units meet the affordability requirements of 24 CFR 92.252, 50052.5 and 50053(b)(1) of the California Health and Safety Code, for the required period of affordability according to section 33334.3 of the California Health and Safety Code. (6) Evidence of a currently paid hazard insurance policy in accordance with the requirements of Section 6 of the City/HOME Deed of Trust, with a loss payable endorsement naming the City as a loss payee(s) together with other approved lenders (as their interests may appear), with a "Replacement Cost Endorsement" in amount sufficient to prevent Developer or City from becoming a co- insurer tinder the terms of the policy, but in any event in an amount not less than 100% of the then full replacement cost, to be determined at least once annually and subject to reasonable approval by the Executive Director. (7) Evidence of a currently paid liability insurance policy, naming the 7of12 251 -84 City as additional insured and in a form approved by the City Attorney with coverage as described in the Loan Agreement. (8) Termite reports pertaining to the Property every fifth (5th) year. (9) Such other information as may be reasonably required by the Executive Director or his/her designee. b. Records and Audits. Developer shall maintain the following general program records, and make them available for inspection by the City, the State or HUD: (1) records which demonstrate that the project meets the property standard specified in 24 CFR 92.251; (2) records, for each HOME Assisted Unit, which demonstrates that the project meets the requirements of 24 CFR 92.252. (3) records which demonstrate compliance with the tenant and participant protections, as specified in 24 Section 29.253; (4) records which demonstrate compliance with the Equal Opportunity and Fair Housing requirements outlined in these Restrictions, including: (A) data on the extent to which each racial and ethnic group and single head of household (by gender of head of household) have applied for, participated in, or benefited from, any program or activity funded in whole or in part with HOME funds; (B) documentation of actions undertaken to meet the equal opportunity requirements of 24 CFR 92.350, which implements Section 3 of the Housing Development Act of 1968, as amended (12 U.S.C. 1701u); (C) documentation and data on the steps taken to implement Developer's outreach programs to minority -owned and women -owned businesses to meet the minority outreach requirements of 24 CFR 92.350; (5) documentation of the steps taken to carry out an affirmative marketing program in accordance with 24 CPR 92.351, if applicable; (6) if applicable, records which demonstrate compliance with the requirements relating to relocation of displaced persons, as described in 24 CFR 92.353. At a minimum, these shall include project occupancy lists identifying the name and address of all persons occupying the project property up until the date of the Real Estate Closing (i.e., the date on which Developer obtained site control); (7) records concerning lead -based paint in accordance with 24 CFR 92.355; 8of12 251 -85 (8) if applicable, records which support any requests for waivers of the conflict of interest prohibition as stated in 24 CFR 92.356; (9) records of certifications of contractor qualifications as they relate to the debarment and suspension requirement as stated in 24 CFR 92.357 and 24 CFR Part 24; and (10) any other reports issued by other monitoring agencies. C. All records pertaining to each calendar year of HOME funds must be retained for the most recent five year period, except that for rental housing projects, records may be retained for five years after the project completion date; except that records of individual tenant income verifications, project rents and project inspections must be retained for the most recent five year period, until five years after the affordability period terminates (24 CFR 92.508). Developer shall cooperate with the City to retain all books and records relevant to the Loan Agreement for a minimum of five years after the expiration of the Loan Agreement and any and all amendments hereto, or for five years after the conclusion or resolution of any and all audits or litigation relevant to the Loan Agreement, whichever is later. The City, the State, the Office of the Auditor General of HUD, and /or their representatives shall have unrestricted reasonable access to all locations, books, and records for the purpose of monitoring, auditing, or otherwise examining said locations, books, and records with or without prior notice. d. If so directed by the City, the State or HUD upon termination of the Loan Agreement, Developer shall cause all records, accounts, documentation and all other materials relevant to the work to be delivered to the City, the State or HUD, as depository e. All records, accounts, documentation and other materials relevant to the Project shall be accessible at any time to the authorized representatives of the City, the State or HUD, on reasonable prior notice, for the purpose of examination or audit. f. Pursuant to 24 CFR Part 44, the City shall perform an annual audit at the close of each calendar year in which these Restrictions are in effect. Developer shall reasonably cooperate with City in performing such audit. 16. The City is a beneficiary of the terms and provisions of these Restrictions and the covenants herein, both for and in their own right and for the purposes of protecting the interests of the community and other parties, public or private, for whose benefit these Restrictions and the covenants running with the land have been provided. The City shall have the right if the covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which they or any other beneficiaries of these Restrictions and covenants are entitled. 17. The covenants and agreements contained herein shall run with the land and not be personal obligations of Developer, Upon the sale, conveyance or other transfer of the Property (a "Transfer ") and the assumption of the obligations hereunder by a transferee, Developer's liability for performance shall be terminated as to any obligation to 9of12 251 -86 Exhibit G be performed hereunder after the date of such Transfer. is. The Loan Agreement and all of its attachments shall be enforceable by City in accordance with the terms thereof. Each of the Loan Agreement, the Affordability Restrictions on Transfer of Property, the City/HOME Loan Note and the City /HOME Deed of Trust provide a means of enforcement by the City if Developer is in breach of its obligations hereunder and thereunder, including liens on the Property, use and deed restrictions and covenants running with the land [24 CFR 92.504 (c) (13)]. 10 of 12 251 -87 IN WITNESS WI3EREOF, the parties hereto have caused these Affordability Restrictions on Transfer of Property to be executed on the date set forth hereinabove. ATTEST: CITY OF SANTA ANA Maria D. Huizar David Cavazos Clerk of the Council City Manager APPROVED AS TO FORM: SONIA R CARVALHO City Attorney 1 By Jo?Assistant dov Chi City ttorney 11 of 12 251 -88 940 Minnie, LP a California limited partnership MANAGING GENERAL PARTNER OHDC Properties I, LLC a California nonprofit, public benefit corporation C Eunice Bobert, Chief Executive Officer DEVELOPER GENERAL PARTNER C &C Properties Group I, LLC a California limited liability company BY: Cottle Family Trust Dated 3/8/87, its Member LIN Barry Cottle, Trustee 12 of 12 251 -89 2/24103LS . CITY OF SANTA ANA AFFIRMATIVE MARKFTING AND MINORITY OUTREACH PROGRAM AFFIRMATIVE MARKETING PROGRAM The City of Santa Ana is a participating jurisdiction in the federal HOME Investment Partnership Program (HOME) and the Community, Development Block Grant Program (CDBG). Federal law requires that all participating jurisdictions adopt affirmative marketing policies that. include: A. Methods to inform the public about federal fair housing laws and the City's affirmative marketing policy; B. Requirements, and practices owners must adhere to in order to carry out this policy; C. Procedures owners must use to inform and solicit applications from persons in the housing market area who are not likely to apply for the housing without special outreach; D. Records that owners and the City will keep describing the actions they have taken to affirmatively market units and records to assess the results of these actions; and E. A description of how the City will annually assess the success of affirmative marketing actions and determine what corrective actions are needed. The City's affirmative marketing procedures and requirements for rental and homebuyer projects containing five or more HOME or.CDBG- assisted housing units are set forth below. These procedures and requirements constitute the City's Affirmative Marketing Program. These procedures and "requirements do not apply to .families with Section 8 tenant -based rental housing assistance or families with tenant -based rental assistance provided with HOME funds. A. Methods to infonr: the public aboutfederal fair housing laws. B' The City will display the Equal Housing logotype or slogan in housing - related press releases and solicitations for owners, and on the website page for the City's Housing and Neighborhood Development Division. The City will request that the County of Orange include information on the City's HOME and CDBG - assisted rental units in its countywide Affordable Housing List maintained by the County. This list can be found on the internet at http / /�tiliry oc ca eov lhousin� /AffordableHousinaList httn. The City will maintain a link to this -website on the website page for the City's Housing and EXHIBIT l Resolution No. 2003 -031 251.90 Page 3 of 5 Neighborhood Development. Division and for the Santa -Ana Housing Authority. Copies of the list will be available at the public reception counters for the Housing and Neighborhood Development Division and the Santa Ana Housing Authority. B. Requirements and practices owners mast adhere to: - The City will require mvners of City HOME and CDBG- assisted rental units covered under this marketing plan. to display the Equal Housing Opportunity logotype or slogan in all correspondence with current or potential tenants, and on lease agreements. The City will require them to display the fair housing poster in their leasing offices, and to develop written procedures for selecting tenants. These procedures must meet the following criteria: • They must be consistent with the purpose of providing housing for very low- income and low- income families; • They must be reasonably related to.program eligibility and the applicants' ability to perform the obligations of the lease; • They must give reasonable consideration to the housing needs of families that would have a federal preference under section 6 0(4)(A) of the Act; • They must provide for the selection of tenants from a written waiting list in chronological order of their application, insofar as is practicable; • They must call for prompt written notification to any rejected applicant of the grounds for any rejection. C. Procedures for owners: The City will require owners of City HOME and CDBG- assisted rental units to continuously review the demographic makeup of their tenants. If and when such review indicates that their tenants no longer reflect the City's minority population, they will be required to inform the City of that fact and request City review and approval of steps they will take to correct that deficiency. Compliance with the City's affirmative marketing-requirements and procedures will be made an obligation of all rental property owners receiving HOME or CDBG assistance from the City of Santa Ana, and will be enforceable by means of appropriate actions described in loan documents recorded through the County of Orange. D. Record keeping: The City will require owners of its HOME and- CDBG- assisted rental units covered under this marketing plan to make an annual report to the City detailing the steps they have taken to comply with this program. They will also be required to report on the ethnicity of their tenants, as well as rents, income levels, and other household characteristics. Reports will be made on a form that is acceptable to Resolution No. 2003 -031 EXHIBIT I Page 4 of 5 251 -91 2v2aiosLs. the City of Santa Ana, and that will enable the City In capture the data it needs to evaluate owner compliance with this program. S• The City will maintain records on owner reports and its evaluation of those reports for a period of not less than ten years after expiration of the affordability period required by applicable HUD regulations. E. Annual assessment: >3 Upon receipt of owner reports, the City will evaluate the ethnic and racial characteristics of tenants being served to determine if they reflect the City's housing market. If they do not, the City will direct the owner to take further affirmative marketing steps to correct the imbalance. The City will track and evaluate the steps taken to ensure they have the desired effect. MINORITY OUTREACH PROGRAM As a participating jurisdiction, the City is also required to adopt certain affirmative steps to ensure maximum feasible participation in HOME and CDBG - funded projects by minority business enterprises, women's business enterprises, labor surplus area firms and other small businesses. These affirmative steps are listed below and constitute the City's Minority Outreach Procedures and Requirements Program for HOME and CDBG- funded projects. ❖ The City will place qualified small and minority businesses and women's business enterprises on solicitation lists; ❖ The City will assure that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources; :• The City will divide total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women's business enterprises; Thd City will use the services and . assistance of the Small Business Administration and the Minority Business Development Agency of the Department of Commerce; and The City will require the prime contractor, if subcontracts are to be let, to take the affirmative steps listed above. The City will annually review the results of these procedures to determine if additional steps should be taken. EXHIBIT 1 Resolution No. 2003 -031 251 -92 Pago 6 of 5 EXHIBIT I CITY OF SANTA ANA REHABILITATION STANDARDS PREFACE The primary purpose of these standards is to address the quality of workmanship and materials expected, and to achieve consistency throughout the program activities administered by the City of Santa Ana. These standards are not intended to reduce or exclude the requirements of any federal, state or local codes, standards, ordinances and regulations that apply to residential rehabilitation. WORKMANSHIP All work shall be performed in a professional and workmanlike manner. The quality and durability of the work shall meet or exceed the standards established by the construction industry and various trades. MATERIALS & EQUIPMENT • All materials and equipment shall comply with and be installed in accordance with the manufacturer's requirements and all applicable codes, standards, ordinances and regulations. If a discrepancy occurs between the requirements, the more stringent shall prevail. • Unless otherwise specified, all materials and equipment shall be medium grade. • Economy grade materials and equipment are unacceptable. • All materials and equipment shall be new, in excellent condition, and delivered to the job in the manufacturer's original packaging. • The description of materials and equipment found in this document establish a minimum standard. ENERGY EFFICIENCY, WATER CONSERVATION & RECYCLED MATERIALS To the extent possible and practical, standard measures related to energy conservation, energy efficiency, water conservation and the use of recycled materials have been incorporated herein. Gut rehabilitation or new construction of residential buildings up to three stories will be designed to meet the standard for Energy Star Qualified New Homes. Gut rehabilitation or new construction of mid or high rise multi - family housing must be designed to meet the American Society of heating, Refrigerating and Air- Conditioning Engineers (ASHRAE) Standard 90.1 -2004, Appendix G plus 20 percent. LEAD -BASED PAINT All housing built before 1975 must comply with 24 CFR Part 35 Subpart 1 and HUD's Lead Safe Housing Rule regarding the evaluation and control of lead -based paint hazards. HUD's guidelines are available at http:Z/www.hud.govLoffices/lead/lbp/`hudguidelines /index cfm. BUILDING STANDARDS Minimum Standard . The site shall be hazard -free and sanitary. • The site and all paving shall drain away from the dwelling and accessory buildings, but not onto adjacent properties. • Paving and walkways shall be hazard -free and intact. 251 -93 • Landscaping and irrigation systems shall be hazard -free and in relatively good condition. All dead vegetation shall be removed. • Fencing, walls and gates hazard -free and intact. All gates shall be in good working order. • The site shall be free from trash, debris and hazardous materials. • Access2y buildings shall be safe and sound. Paving • All new paving and walkways shall be constructed with concrete (2,000 PSI @ 28 days). • Driveways shall be reinforced with wire mesh. Sawn expansion - contraction joints shall be placed every 8 feet in both directions. • All paving and walkways shall be finished with a light broom texture. • All walkways shall be at least 3 feet wide. Sawn expansion- __ contraction joints shall be placed every 4 feet. Landscaping & Irrigation • To the extent possible and practical all new landscaping shall be drought resistant. • When a lawn is being replaced, the new lawn area shall be reduced to aid in the reduction of water consumption. New irrigation controllers shall be weather or sensor based and EPA Water -Sense qualified. All new irrigation systems shall be designed to conserve water. _ Fences, Walls & Gates • All new wood fences shall be made from good quality materials. They shall be properly supported with 4X4 pressure treated posts (8 feet O.C.) and 2X4 rails (top and bottom). The posts shall be embedded in a concrete footing at least 18" deep. • All new block walls shall be constructed with 6X8X16 concrete block. They shall be properly supported by a continuous footing and reinforced with steel bar. Minimum Standard • Safe, structurallv sound and 251 -94 Rehabilitation Decks, balconies and railing that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Finishes • Zero or low VOC orimers, paint and coatings. Minimum Standard • Safe and structurally sound. Rehabilitation • Ext. steps, stairways and railing that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. _ Finishes • Zero or low VOC primers, paint and coatings. Minimum Standard • Safe and structurall sound. Rehabilitation 0 Foundations that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • If the project involves a gut rehab, raised foundations shall be completely insulated. Concrete • 2,000 PSI (minimum). Minimum Standard 0 Safe, structurally sound and watertight. Rehabilitation • Exterior walls that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • If the project involves a gut rehab, all exterior walls shall be insulated. Minimum Standard Safe, sound, weather -tight and in good working order. _ Rehabilitation Exterior doors that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as New Doors 0 EPA Energy Star qualified, zero or low VOC finish. New Hardware 0 Reputable manufacturer, lifetime finish. Minimum Standard i Safe, sound and in good working order. Doors shall be impermeable (primed and painted). • Five or more years of practical utility._ q Rehabilitation Garage doors and openers that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. 251 -95 Minimum Standard 0 • • Homes built before 1975 must comply with 24 CFR Part 35 Subpart 1 and HUD's Lead Safe Housing Rule regarding the evaluation and control of lead -based paint hazards. All exterior paint shall be intact and free of corrosion. Five or more years of practical utility. Rehabilitation • _ All surfaces to be painted shall be prepared properly. All loose material and peeling paint shall be removed. i All holes and cracks shall be filled and finished so that they blend into the surrounding area. • All stucco surfaces to be painted shall receive a complete and even coverage of stucco paint. • All wood surfaces to be painted shall receive a complete and even coverage of flat exterior paint. • Poor workmanship will not be tolerated. New Paint Reputable manufacturer. • Highest quality available. • Zero or low VOC paint, caulkina and fillers. Minimum Standard • Safe and structurally sound. • Allplaster d ywall and paneling shall be safe and intact. Rehabilitation 0 Walls and wall coverings that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • If the project involves a gut rehab, the attic, walls and floor on raised foundations shall be insulated. Minimum Standard • Safe, sound and sanitary. Five or more years of practical utility. Rehabilitation Floor coverings that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement Floor • Carpet & Pad (Reputable manufacturer, recycled materials). 251 -96 Coverings Resilient Flooring (Reputable manufacturer, 10 year wear warranty). • Ceramic Tile (Reputable manufacturer) Minimum Standard • Safe, sound and in good working order. • Five or more years of practical utility. Rehabilitation • Interior doors that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement Doors 0 Doors (Reputable manufacturer, masonite, raised panel). Hardware • Hardware (Reputable manufacturer, lifetime finish). Minimum Standard Homes built before 1978 must comply with 24 CFR Part 35 Subpart J and HUD's Lead Safe Housing Rule regarding the evaluation and control of lead -based paint hazards. i All interior paint shall be intact and corrosion -free. Five or more years o�utility Rehabilitation i All surfaces to be painted shall be prepared properly. All loose material and peeling paint shall be removed. • All holes and cracks shall be filled and finished so that they blend into the surrounding area. • All surfaces to be painted shall receive a complete and even coverage of flat paint (semi -gloss in kitchens, bathrooms and laundry rooms). • Poor workmanship will not be tolerated. New Paint Reputable manufacturer. • Highest quality available. • Zero or low VOC paint, caulking and fillers. Minimum Standard • Safe, sound, sanitary and in good working order. 6 Faucets shall (at a minimum) be eauiaoed with a low -flow 251 -97 • Five or more years of practical utilit Rehabilitation • Kitchen fixtures, equipment and appliances that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement Sinks • Reputable manufacturer. • 18- ua a (minimum) stainless steel. Replacement Faucets • EPA Water -Sense qualified. • Reputable manufacturer. • Brass construction, metal housin . Replacement Disposals • Reputable manufacturer. • V2 HP motor (minimum). • Stainless steel swivel lugs. Replacement • EPA Energy Star qualified. Dishwashers • Reputable manufacturer. Replacement Range • EPA Energy Star qualified. Hoods i Reputable manufacturer. Replacement Ranges • Reputable manufacturer. • Pilot -free ignition. • Four sealed burners. • Self - cleaning oven with timer. Replacement Cook Tops _. Reputable manufacturer. • Pilot -free ignition. • Four sealed burners. Wall Ovens 0 Reputable manufacturer. • Pilot -free ignition. • Self- cleanin oven with timer. • Faucets shall (at a minimum) be equipped with a low -flow aerator. 7m2e • Showerheads shall (at a minimum) be equipped with low -flow aerator. • Porcelain sinks shall be free from any cracks or chips. Steel sinks shall be free from any rust or corrosion. • Five or more years of practical utility. Rehabilitation • Bathroom fixtures and equipment that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • Toilets that require more than 1.6 GPF shall be replaced regardless of their condition. Replacement Sinks 0 Reputable manufacturer. • Cast iron, white enamel finish. Replacement Faucets EPA Water -Sense qualified. • Reputable manufacturer. • Brass construction, metal housing. 251 -98 Replacement Toilets 0 • Reputable manufacturer. EPA Water -Sense qualified (1.28 GPF) Replacement Tubs i Reputable manufacturer. • Cast iron body, white enamel finish, slip resistant bottom. • EPA Water -Sense qualified plumbiinq fixtures. Replacement • Reputable manufacturer. Combination • Cast iron body, white enamel finish, slip resistant bottom. Tub - Showers . 4" ceramic tile surround. • Anodized aluminum doors with tempered glass. • EPA Water -Sense qualifiedl olumbilnq fixtures. Replacement Showers • Reputable manufacturer. • 4" ceramic tile. • Anodized aluminum door with tempered glass. • EPA Water -Sense qualified plumbing fixtures. Replacement • Reputable manufacturer. Medicine Cabinets • Steel body, beveled mirror door. Towel Bars & Toilet Reputable manufacturer. Pa er Holders Metal construction, polished chrome finish. Minimum Standard • Safe, sound and leak -free. Rehabilitation • Piping (supply, waste and vent) that does not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be Replacement Copper, type "L ". Water Supply Piping Replacement Schedule 40 ABS. Waste & Vent Pioina Minimum Standard Safe, sound and in good working order, • 100- ampere minimum service. 251 -99 Rehabilitation Electrical service panels, breakers and wiring that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • Knob and tube wiring shall be replaced regardless of its condition. Overhead wiring from a dwelling to a detached garage or accessory building shall be installed underqround regardless of its condition. Replacement • Reputable manufacturer. Service • 100- ampere (minimum). Replacement • Romex (NM cable). Minimum Standard • Safe, sound and in good working order. Light fixtures shall (at a minimum) be equipped with CFL bulbs. Exterior lighting fixtures used for security shall be equipped with a motion sensor. Rehabilitation • Electrical switches, outlets and lighting fixtures that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • All new light fixtures shall be U.L. approved and Energy Star qualified. • Outlets located within 6 feet of a source of water shall be ground fault protected. Exterior switches and outlets shall be weatherproof. Replacement • U.L. approved. Switches & Outlets _ Replacement 0 Reputable manufacturer. Liphtinp Fixtures • U.L. approved and EPA Enerqv Star qualified. 251 -100 Minimum Standard • Safe, sound and in good working order. • Five or more years of practical utility. Rehabilitation 0 HVAC that does not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • Tune -up all HVAC equipment (as a minimum). • Seal all ducts (as a minimum). • All new HVAC equipment shall be sized properly. Furnaces Reputable manufacturer. • EPA Energy Star qualified. Central Air Conditioners 0 Reputable manufacturer. •_ EPA Energy Star ualified.^ Thermostats Reputable manufacturer. • EPA Energy Star qualified. • Programmable. 251 -100 Minimum Standard • Additions and alterations that were constructed without a building permit and are clearly substandard shall be removed. • Garages converted to living quarters shall be returned to their original use. • Additions and alterations that were constructed without a building permit, but appear to be compliant, shall be inspected by the City's Building Official to determine if a building permit can be issued and 251 -101 251 -102 0 CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: EXCLUSIVE NEGOTIATING AGREEMENT FOR RENOVATION AND REUSE OF THE YMCA PROPERTY tj CITY MANA R 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 Authorize the City Manager and City Attorney to negotiate an Exclusive Negotiation Agreement on behalf of the City of Santa Ana with St. Joseph Health and Taller San Jose for the reuse of the YMCA building, and authorize the City Manager and City Attorney to negotiate, finalize and execute a Reimbursement Agreement with the parties in substantially the same form attached hereto, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The YMCA building, located 205 West Civic Center Drive, was purchased by the City in 1992. The building has been vacant since that time and is in serious disrepair due to age and vandalism. Over the years, the City has, on numerous occasions, considered proposals to renovate this historic building but none were financially feasible. In 2013, with the local economy improving, it was timely to again seek proposals for the site. With Council approval, a Request for Qualifications (RFQ) was released in August 2013 and potential reuses identified by the Development and Transportation City Council Committee (D &TC) which included: retail, office, hotel, residential and entertainment uses. As part of the RFQ, staff originally envisioned a two -step process for selecting a qualified developer. Once the best qualified developers were identified through the RFQ, a separate Request for Proposals (RFP) was anticipated, which would result in the recommended team and their development proposal being considered by the City Council. The depth of submissions received as part of the RFQ process was substantial and as a result, staff advised the D &TC that it was unnecessary to issue an extensive RFP; rather staff would interview the top firms and ask them for additional information regarding financing the reuse and renovation as well as conceptual plans for the YMCA building. Therefore, all proposals were to be evaluated by a city- created selection committee which included representatives from the Community Development and Planning & Building Agencies, and the City's financial consultant, 25J -1 Exclusive Negotiations for YMCA March 18, 2014 Page 2 Keyser Marston Associates. Criteria included experience of the firm and key personnel, financial capacity, development schedule, project concept and completeness of proposal. RFQ Submittal Overview The following firms submitted an RFQ and conceptual plans: • St. Joseph Health /Taller San Jose - medical fitness center • Abode Communities — single room occupancy (SRO) units or low income senior /special need housing • Caribou Industries — new boutique hotel on adjacent parcel including consolidation of YMCA as reception area, gym and health center and multipurpose event center • Vineyard Community Church — homeless support center and emergency shelter • Orange County Coalition - mentoring university, concert hall and ball room • Affirmed Housing Group /Path Ventures — one -stop homeless service center including supportive housing • Irvine Housing Opportunities /LA Housing Partnership — affordable housing for artists, seniors and single veterans Following an extensive review of all of the submittals, the selection committee presented the three top developers (in concept only) to the DUC in December, 2013. The finalists represented a range of development opportunities including a medical facility, an affordable housing project and a boutique hotel. As part of this process, it was agreed that once interviews were conducted, the selection committee would recommend to the City Council the developer with whom to enter into an Exclusive Right to Negotiate. Following the DUC meeting, the selection committee set up interviews with the top three ranking firms, Caribou Industries, Inc., St. Joseph Health /Taller San Jose, and Abode Communities. Subsequent to the DUC meeting, Abode Communities withdrew their application. The remaining two developers were interviewed by the selection committee on February 12, 2014. Exhibit 1 details Caribou's and St. Joseph /Taller San Jose's RFQ summaries and financial overviews. Both proposals represented development teams that have both the experience and vision to undertake the reuse and renovation of the YMCA building; however, the selection committee recommended that the St. Joseph /Taller San Jose team be offered the Exclusive Right to Negotiate for the following reasons: 1. The City Council has a stated objective to implement a strong economic development program in the Downtown, in combination with the goals of the Civic /Professional District land use designation, which provides a linkage between Civic Center and related professional office and non - profit organizations. Both firms have a long history of working 25J -2 Exclusive Negotiations for YMCA March 18, 2014 Page 3 in partnership with many Santa Ana organizations that are instrumental in helping Santa Ana residents. 2. The St. Joseph/Taller San Jose team will provide a much needed fitness center /community venue for the underserved population living near the downtown as well multiple wellness programs for surrounding employers. This is consistent with Santa Ana's proposed 5 -Year Strategic Plan, which includes numerous strategies addressing community health and wellness, as well as the need for recreational opportunities and youth development. 3. The St Joseph /Taller San Jose team proposal to share operating revenues and expenses lends strength to their financial proposal, and helps ensure that they share in each other's strengths while assisting each other to balance any organizational weaknesses. 4. The St. Joseph /Taller San Jose team is proposing to complete the development within a three -year timeframe, which is two years shorter than the one proposed by Caribou Industries. While the proposed timeline includes aggressive fundraising, the fact that the proposers would be the users of the building is definitely more secure venture than a conceptual hotel development. Based on both their written proposal and subsequent interviews, the selection committee recommends that the City Council authorize the City Manager to negotiate an Exclusive Right to Negotiate Agreement with the St. Joseph Health Care /Taller San Jose team. As part of this negotiation, it is anticipated that a separate Reimbursement Agreement (Exhibit 2) will be negotiated to address project related and legal expenses incurred by the City to advance the project. FISCAL IMPACT There is no fiscal impact associated with this action. Scott Kutner District Manager Community Development Agency SK/MU -GL /kg Exhibit: 1. RFQ Summaries and Project Financials 2. Reimbursement Agreement 25J -3 25J -4 EXHIBIT 7 RFQ SUMMARIES AND PROJECT FINANCIALS FOR TOP TWO PROPOSALS FOR YMCA REUSE CARIBOU INDUSTRIES RFQ SUMMARY Caribou Industries, Inc. (Caribou) owns approximately 4 million square feet of commercial property in Santa Ana including the development site for the proposed One Broadway Plaza project. Other significant projects include the Masonic Temple and Original Mike's restaurant. Caribou also completed the design /build of the Orange County High School of the Arts and the OC Pavilion. Caribou is proposing to consolidate three parcels downtown and build a two -phase hotel and conference facility. They have a long history of development in Santa Ana and have demonstrated an ability to renovate older, challenging buildings. Phase I entails modernization of the YMCA including upgrading the mechanical, electrical and plumbing systems, seismic compliance, Air Quality Management District (AQMD) and asbestos abatement compliance. Phase II entails building out the main lobby in the YMCA as an historic arts display /reception area and hotel front desk. The basement would be restored to a full service gym, including a pool for both hotel guests and public membership use. The basketball court would be converted into a 300 person multi- purpose event center. Additionally, Caribou is proposing to build a 12 -story west wing hotel tower consisting of 133 rooms, 8 penthouse suites, 1 presidential suite, and a combination of 20 -40 hotel room suites on the second and third floor of the YMCA. Additional space would be reserved for conference rooms in a variety of sizes. Pursuant to Caribou's proposal, the new conference facility would serve as a focal point for the community and give local businesses the ability to hold presentations, mini conventions, host live theater and serve as a fund raising venue. Caribou is proposing to complete the proposed project within approximately 60 months. However, they are not in negotiations with a hotel operator at this time, nor have they undertaken a formal market study to assess the potential for hotel development on the site. Caribou indicates that the ultimate construction of the hotel and choice of an operator type will be based on the tenant leasing One Broadway Plaza, and their potential hotel requirements. If Caribou is unsuccessful in attracting a tenant to the proposed One Broadway Plaza project during this period, they may decide to build more of a residential suite /business hotel in an effort to attract government users and existing local businesses. PROJECT FINANCIAL OVERVIEW Caribou proposes to renovate the existing structure, and build an additional hotel building on the site. As proposed, the project would be completed in two phases, with Phase I consisting of the renovation of the YMCA building and Phase II consisting of the construction of the hotel tower. Caribou has not yet decided what type of hotel will be Page 1 of 4 25J -5 developed, but they anticipate it to include between 162 and 182 rooms. Caribou estimates the project costs at approximately $38 million. Caribou indicated that the initial $10 to $13 million will be self- financed in order to perform the asbestos abatement, mold abatement and seismic retrofitting. Prospective lenders for the construction loan are Farmers and Merchant Bank or US Bank. Caribou is currently in negotiations to obtain a tenant for the proposed One Broadway Plaza project. Caribou indicated that there is the possibility that this tenant will be interested in pre - leasing a majority of the proposed hotel rooms. If this occurs, Caribou may develop a first class hotel — along the lines of the W Hotel brand. Caribou anticipates that the average daily rate (ADR) of this type of first class hotel would be approximately $170 - $240. If the tenant for the proposed One Broadway Plaza project is not secured, or is not interested in pre - leasing the proposed hotel, Caribou anticipates that it will develop the project as a more budget - friendly hotel. Caribou projects the ADR of this type of hotel to be in the range of approximately $85. Caribou anticipates that the target market of this type of hotel would be visitors to the courthouse and Civic Center. Based on Caribou's proposal, it is expected the project will be completed 60 months after the execution of the Disposition and Development Agreement (DDA). Caribou proposes to purchase the Site from the City for $1 million, with the payment due at the earlier of the issuance of a certificate of occupancy for the project or 60 months following DDA execution. Caribou would prefer to purchase the site outright, but might be amenable into entering a long -term ground lease. At the interview, Caribou indicated that if the seismic retrofit and all of the exterior and interior construction of the YMCA building is not reasonably complete within the identified timeframe, the YMCA building will be returned to the City. In addition, if the construction lender provides approval, Caribou stated that the City will be allowed to keep the $1 million purchase price as liquidated damages. Caribou acknowledges that without the development of the One Broadway Plaza project, and the attraction of a tenant that wishes to prelease a significant number of first class hotel rooms, it is unlikely that a hotel concept can be supported in the vicinity. As such, a hotel project is speculative in nature, and there is significant risk that the project may not be able to obtain financing needed for renovations. Furthermore, the site would be encumbered over a lengthy five -year timeline, at the end of which the renovation may not have been completed. Page 2 of 4 25J -6 ST. JOSEPH HEALTH CENTER /TALLER SAN JOSE RFQ SUMMARY St. Joseph Health in partnership with Taller San Jose is proposing a neighborhood fitness and wellness center at the YMCA building. The wellness center will focus on promoting a healthier community by integrating exercise and fitness. Comprehensive services will be offered that reinforce healthy behaviors through a variety of programs including disease prevention, rehabilitation, chronic disease management, nutritional counseling and cancer wellness. It will not only be a place to become physically healthy, but also a center to serve individuals that work and live in the area. St. Joseph Health operates five integrated medical fitness centers in the Western United States including Brea, Napa and Eureka, California, as well as Lubbock, Texas. They are the owner and operator of several community health care sites and have successfully established new business ventures in areas in which they serve. They are also in constant contact with community groups to ensure the decisions its ministries make are aligned with community ends. Taller San Jose has been serving Santa Ana for nearly 20 years. It is a local organization which serves Orange County disadvantaged youth through training and skills needed to attain and retain employment. Taller San Jose's goal is to assist students to become self - reliant adults through three key job training academies — office careers, medical careers and construction — as well as support services such as mentoring, legal assistance, and substance abuse recovery support. Their primary population is low income teens and families who may not have access to such programs elsewhere. Last year, Taller San Jose placed 175 unemployed young adults into employment at an average salary of $11.13 per hour. The proposed fitness and wellness center will provide 19,000 square feet for the Taller San Jose facility. Additionally, the proposed partnership will result in potential job opportunities in both the wellness center construction phase and ongoing operations for Taller San Jose students. The St. Joseph /Taller San Jose time line is approximately 24 months. St. Joseph also informed the selection committee that any jobs created through the partnership will be at a "socially just" wage. PROJECT FINANCIAL OVERVIEW St. Joseph/Taller San Jose proposes to renovate the existing structure and subsequently operate a fitness and wellness center at the site. Based on due diligence performed to date, St. Joseph/Taller San Jose estimate the total renovation costs at approximately $17.95 million, with the assumption that the renovation project will be subject to prevailing wage requirements. In addition, the renovation costs include allowances for lead abatement, mold abatement and seismic retrofitting. St. Joseph/Taller San Jose proposes to finance the project costs through cash -on -hand, fundraising and New Market Tax Credits. The development team is currently meeting with prospective entities that would Page 3 of 4 25J -7 help obtain New Market Tax Credits for the project. It is anticipated that St. Joseph Health and Taller San Jose will equally share funding for project costs. However, the two entities will work together to raise the necessary funds to complete the project. If there is a shortfall in the fundraising efforts, St. Joseph Health has the ability to provide a loan to the project to fund the renovation costs, giving the team additional time to continue fundraising. St. Joseph/Taller San Jose proposes that the City donate the fee interest in the site at no cost to the project. Furthermore, St. Joseph/Taller San Jose is not willing to enter into a long -term ground lease. However, the team may accept a provision in the DDA that would provide the City with a first right of refusal if the project is sold after conveyance to the St. Joseph /Taller San Jose development team. These provisions will be negotiated in further detail if St. Joseph/Taller San Jose is selected to enter into an Exclusive Right to Negotiate for the project. Based on a review of the financial statements, it appears that St. Joseph has sufficient cash -on -hand to complete the proposed project if the necessary funds are not raised within the proposed timeline. However, Taller San Jose, as a separate entity, does not have sufficient cash -on -hand to fund the proposed improvements. As such, Taller San Jose will need to embark on an aggressive fundraising campaign in order to raise their share of the estimated project costs. It is possible that Taller San Jose will not be able to meet their fundraising targets with regards to the development timeline of the project. However, St. Joseph stated that they may be willing to loan funds to the project to allow for additional fundraising time for Taller San Jose to obtain the necessary funds for their share of the project costs. Page 4 of 4 25J -8 EXHIBIT 2 FORM /SAMPLE REIMBURSEMENT AGREEMENT This Reimbursement Agreement ( "Agreement ") is made this th day of _, 2014, by and between the CITY OF SANTA ANA, a California charter city ( "City "), and LLC, a [limited liability company] ( "Business "). City and Business are sometimes referred to herein as the "Parties" or individually as a "Party ". RECITALS A. Business' primary location is in and it does B. Business desires to discuss a potential transaction with City. C. The purpose of this Agreement is to provide for Business to reimburse City for fees and costs incurred by City in evaluating the proposed transaction and documenting an agreement if one is reached between the parties. The parties anticipate that such fees and costs should not exceed Thousand Dollars ($_,000). NOW THEREFORE, in consideration of the mutual covenants set forth herein and the mutual benefits to be derived therefrom, the Parties agree as follows: TERMS 1. Incorporation of Recitals. The Parties agree that the Recitals constitute the factual basis upon which City and Business have entered into this Agreement. City and Business each acknowledge the accuracy of the Recitals and agree that the Recitals are incorporated into this Agreement as though fully set forth at length. 2. Reimbursement of Costs. Within three (3) days following the date that both Parties have signed this Agreement, Business shall provide City with a deposit of _Thousand Dollars ($ 00), in immediately available funds. City shall use these funds solely for the purpose of paying fees or costs associated with the proposed transaction and shall, upon Business' request, provide an accounting of the expenses. If additional funds are needed for reimbursement, City shall make a written request to Business and Business shall provide payment to City. 3. Assignability. This Agreement may not be assigned by either Party without the prior and express written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Any attempted assignment of this Agreement not in compliance with the terms of this Agreement shall be null and void and shall confer no rights or benefits upon the assignee. 4. No Prior Agreements and No Oral Modifications. This Agreement represents the entire understanding of City and Business and supersedes all other prior or contemporaneous written or oral agreements pertaining to the subject matter of this Agreement. This Agreement may be modified, only in writing signed by the authorized representatives of both City and Business. 25J -9 5. Binding Upon Successors. This Agreement and each of its terms shall be binding upon City and Business and their respective officers, elected officials, employees, agents, contractors, and permitted successors and assigns. 6. No Third Party Beneficiaries. This Agreement is entered into solely for the benefit of the Parties. No person or entity has any rights or remedies under this Agreement. 7. Attorneys' Fees. In the event that any action or proceeding, including arbitration, is commenced by either City or Business against the other to establish the validity of this Agreement or to enforce any one or more of its terms, the prevailing party in any such action or proceeding shall be entitled to recover from the other, in addition to all other legal and equitable remedies available to it, its actual attorneys' fees and costs of litigation, including, without limitation, filing fees, service fees, deposition costs, arbitration costs and expert witness fees, including actual costs and attorneys' fees on appeal. 8. Jurisdiction and Venue. This Agreement is executed and is to be performed in San Bernardino County, California, and any action or proceeding brought relative to this Agreement shall be heard in the appropriate court in the County of Orange, California. City and Business each consent to the personal jurisdiction of the court in any such action or proceeding. 9. Severability. If any term or provision of this Agreement is found to be invalid or unenforceable, City and Business both agree that they would have executed this Agreement notwithstanding the invalidity of such term or provision. The invalid term or provision may be severed from the Agreement and the remainder of the Agreement may be enforced in its entirety, 10. Headings. The headings of each Section of this Agreement are for the purposes of convenience only and shall not be construed to either expand or limit the express terms and language of each Section. 11. Representations of the Parties. Each person signing this Agreement on behalf of a Party which is not a natural person hereby represents and warrants to the other Party that all necessary legal prerequisites to that Party's execution of this Agreement have been satisfied and that he or she has been authorized to sign this Agreement and bind the Party on whose behalf he or she signs. BUSINESS: , LLC, a limited liability company By: -2- 25J-10 ATTEST: M CITY: CITY OF SANTA ANA, a California municipal corporation EY:.. _ Name: Its: -3- 25J -11 David Cavazos City Manager 25J -12 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: AUTHORIZE CITY MANAGER TO EXERCISE OPTION TO RENEW CONTRACTS ON PREVIOUSLY APPROVED AGREEMENTS CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: .0 ra„ ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER 1. Authorize the City Manager to exercise the options to renew as provided for in the agreements identified in Exhibit A. 2. Authorize the City Manager, Clerk of the Council and City Attorney to execute the options to renew and Letters of Renewal as provided for in the agreements DISCUSSION In alignment with the City's Strategic Plan of creating a culture of efficiency, innovation and transparency, City staff is seeking approval to authorize the City Manager to exercise the option to renew contracts on existing contracts that have been previously approved by the City Council. The authority and approval to renew contract amendments will streamline processes. Current practice requires staff to generate an agenda report for each option to extend contracts and place on the City Council agenda for re- approval. The streamline practice proposed will allow staff and the City Manager to determine if the option to extend should be exercised. It is important to note that authority is sought on contracts that have been previously approved by City Council and include an option to renew; this is not a request for blanket authority on any other contracts. Exhibit A is a listing of all agreements with options to extend contracts. FISCAL IMPACT Funds encumbered for when initially approved by the City Council. There is no additional fiscal impact associated with this action. Attachment: List of Contracts 29A -1 29A -2 d NNNNNNNNNNNNNNNNNNNNNNNNNNNN (gNNNNNNNNNNNNNNN Q Q Q Q Q 6 6 Q¢ U U U U Gug. wwww. wwwwwwwwwwwwwwwwwwwwwwwwwwwwLLwwwwww LLwww a u n a u d a a a a. o. o. a W o. 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K Q W O O J>� woz wN �Ow O w > wLL2, °NtiZ x 4d� O F Q N-aLL.m K Qm U U K LL QK d O zz ¢ rq W ~ U O W J O O J 2 2 O¢ z W Z 0m OOUO U�K azpd )wUNO O W "Z=UQ OZ N J w N Q m a K °yyK 7a HyzKF �¢N u:UOVOi mWU?�OUW N dW N.�UUQ K 0 w 0 z z zcaiw >w> pUFpOUpO�Njw Wd>i Fja� WZwQ O~ =z02 W Nz2FFa HZZ'' F N w O Z K W K > 0 F F 2 °2��Fwz zppwo` -�oz O >Oi�az °mw az�i�w�acxi �^aa�NCYi WUX'= wz�¢y° m w z >> °° Y W-- g z w 9�w QLLOWW OO'K 77 zU �wottNZtt K�aU2Fm �NNh OK °WWNO�zz z =jUw O�z mQUOLL Y¢U'OLL LLHFF 2LL W U'U' mm KwWW Off_ zy ==OLLa >F- F�NamO KFF -NUKE a�0 FQ O ¢ ° °¢¢ww$azwwm�ooizz¢om < °LL�nas °w 'wroropx�OZaWw_wo °¢¢wv�zzOm ¢� >¢6mm000UUUUw LLLLU'0222�O��OOma mNNNNNNF- 0����NO 2�mO¢ W70¢¢¢ mp 29A -3 a r- m__ W [ §§ §§ \ \ \ \\ \ \ \ \((( //(()/ §00DD ) \ \ } /( /) / //( \ \ \ \ \\\\ \\ \\ §)[ \[ / \ /)) /\ § \( : \()§)�( /K /7> \\ \\ \1 /\\ 0 N oz 0 , \ \ 'o :: - \} \ �z) \ _ / ; � ! i0§ §\ / /(( \)! § : : ®/K , rz /( \ \ \ \( \ § \\\ 2§A- REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: ALLOW REDFLEX TRAFFIC SYSTEMS CONTRACT TO EXPIRE IN JUNE 2015 �,-L/ ZL4-,�� CITY MANAGER RECOMMENDED ACTION 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 Direct staff to not exercise the available contract options with Redflex Traffic Systems for Automated Red Light Camera System and allow the contract to expire in June 2015. DISCUSSION The City's Automated Red Light Camera System (ARLCS) is operated by Redflex Traffic Systems and is scheduled to expire on June 21, 2015. Fifteen (15) intersections are covered by the existing contract. Chief Rojas has provided the attached memo outlining detailed information on the program, legislative updates, as well as revenue and expenditures for the past five years. The expense and revenue breakdown since FY 2008 -09 is listed below. During this period, the net revenue impact is $291,583, equivalent to $58,316 annually. Staff surveyed cities in Orange County to determine which agencies are utilizing ARLCS; Los Alamitos, Garden Grove, and Laguna Woods operate similar systems. It is staff's recommendation that the City not exercise the options at the conclusion of the contract in 2015 for the following reasons: ARLCS revenues have had a minimal impact, of red light activations only 50% are submitted to the court, and legislative changes threaten the sustainability of ARLCS. 29B -1 FY 2008 -09 FY 2009 -10 FY 2010 -11 FY 2011 -12 FY 2012 -13 Fines Collected $ 1,241,015 $ 1,308,608 $ 1,836,005 $ 1,636,212 $ 2,541,745 Paid to Redflex $ 1,282,115 $ 1,281,249 $ 942,011 $ 913,633 $ 737,249 Attorney Fees $ - $ - $ - $ 24,055 $ 68,035 Est. Personnel Costs $ 537,539 $ 571,135 $ 604,731 $ 638,327 $ 671,923 Net Revenues $ (578,639) $ (543,776) $ 289,263 $ 60,197 $ 1,064,538 Staff surveyed cities in Orange County to determine which agencies are utilizing ARLCS; Los Alamitos, Garden Grove, and Laguna Woods operate similar systems. It is staff's recommendation that the City not exercise the options at the conclusion of the contract in 2015 for the following reasons: ARLCS revenues have had a minimal impact, of red light activations only 50% are submitted to the court, and legislative changes threaten the sustainability of ARLCS. 29B -1 Redflex Traffic Systems Expiration of Contract March 18, 2014 Page 2 Upon expiration of the contract, Redflex would have sixty (60) days to remove the equipment and restore damaged infrastructure at its sole cost and expense. Should Redflex not remove or make the required restoration, the City would be able to remove the equipment and charge the company. FISCAL IMPACT There will be sufficient funds to meet the contract payments requirements through June 2015. APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Mgmt. Services Agency ir ' r Attachment: Memo from Interim Police Chief 29B -2 MEMORANDUM To: Chief Rojas via Chain of Command From: Cmdr.Ibarra Subject: Automated Red Light Camera Background Date: 2 -12 -14 The Santa Ana Police Department has operated an Automated Red Light Camera System (ARCLS) since 2003 through Redflex Traffic Systems who provides equipment and support. There are 297 controlled intersections with tri -phase traffic signals throughout the city. The red light camera system operates at 15 intersections with a total of 20 approaches being monitored in various directions. The monitored intersections were selected based on volume, number of collisions and injuries, and overall pedestrian traffic. On an average day, over 1,850,000 vehicles travel through the 15 monitored intersections, making these intersections some of the busiest in the county. The most active intersection is 17th Street and Bristol Street, which averages approximately 172,000 vehicles per day. A recent study suggests that traffic cameras change drivers' behavior, reduce crashes, and saves lives. In 2011, the Insurance Institute for Highway Safety (IIHS) concluded there was a 24% reduction in the number of fatal collisions in the 14 largest U.S. cities using photo enforcement cameras including reductions of 53% in Sacramento, 44% in Santa Ana, 62% in San Diego and 34% in Long Beach. The IIHS study also concluded 159 lives were saved in the 14 cities studied and 800 more lives could have been saved had every large city in the country used photo enforcement cameras. Purpose and Effectiveness The primary purpose of our red light camera program is safety. An internal study conducted by the Santa Ana Police Department's Traffic Division analyzed collisions involving red light violations from 2005 and 2009 and compared the current 15 photo enforced intersection with 15 other non -photo enforced intersections. The study found collisions were down 54% in 2009 compared to 2005, and injury collisions were down 77 %. Within the two intersection groups, the study examined four categories: number of reported collisions, rear -end collisions, red light violation collisions, and number of injuries reported. Reported collisions were down at photo enforced intersection by 1% and up by 27% at non -photo enforced intersections. Rear -end collisions were down 2% at photo enforced intersections and up 32% at non -photo enforced intersections. Red light violation collisions were down at both groups, 54% at photo enforced intersections and down 16% at non -photo enforced intersections. At the photo enforced intersections, injuries were down by 77% and 1 % at non -photo enforced intersections. On average there are 4,000 red light activations captured by our system each month, but only 2,100 violations are submitted to the court. After a potential violation has been captured, the information is sent to Redflex in Phoenix, AZ. The citation is then processed in accordance with the guidelines established in our business rules. Many violations get rejected in this phase because of the established rules. For instance, we do not process incidents involving vehicles with paper plates, motorcyclists wearing full face helmets, drivers with the face more than % P•- hidden, activations which occur while police officers are conducting traffic control and activations which occur during inclement weather. If an incident clears the vendor it is then placed into a queue and a Santa Ana Police Officer examines the incident. The officer either accepts or rejects the incident based upon his /her judgment and application of the law. At this juncture, the officers reject many incidents if, in their opinion, they would not have issued a citation in the field. The officer often rejects incidents for reasons such as clarity of the picture, license plate is unclear, gender mismatch, invalid offense, safe turn on red, funeral procession, police controlled intersection, on or passed the limit line, unclear scene image, red -light not visible, sun glare or the driver is unidentifiable. In FY 2011 -12, 22,504 citations were filed with the courts and the department received $1,636,212 in court fines. In FY 2012 -13, 30,099 citations were filed and the department received $2,541,745 in fines. The total cost for a red light violation is $490. State legislation sets a mandatory fee for a red light violation (CVC 21453a) at $100 but additional pre - established "penalty and assessment" fees add an additional $390. The City of Santa Ana receives $153.71 for each violation, the County of Orange gets $101.69 and $234.60 goes to the State of California. These fees are not negotiable and cannot be adjusted. Operational Considerations Santa Ana experiences a significant increase in commuter traffic during the normal business week. With limited police resources, the system serves as a force multiplier to deal with serious traffic violations that present a danger to the public. Elimination of the Red Light Camera Program makes enforcement of red light violations more challenging and could potentially put the commuting public at greater risk. Legislative / Legal Considerations The most recent law to impact existing Automated Traffic Enforcement Systems was SB 1303, which was enacted on September 28, 2012. SB 1303 has two primary impacts: it addresses the admissibility of red -light camera- generated evidence and it adds certain requirements regarding the adoption of notices of non - liability, signage, and reporting on the effectiveness of Automated Traffic Enforcement Systems. The impact on the admissibility of photo enforcement evidence was addressed in two parts of SB 1303. First, there is now a presumption of authenticity applied to photo enforcement evidence. This changes the existing Evidence Code Section 1552 and 1553 to create a presumption of authenticity for printed representation of computer information and a presumption of authenticity for "a printed representation of images stored on a video or digital medium." Secondly, SB 1303 clarifies that photo enforcement evidence is not hearsay. SB 1303 amends Vehicle Code Section 21455.5 to state — "the printed representation of computer - generated information, video, or photographic images stored by an automated traffic enforcement system does not constitute an out -of- custody hearsay statement by a declarant. This amendment should eliminate hearsay challenges. The second impact of SB 1303 is the operational requirements. Those requirements include Notice of Non - Liability, additional requirements for operation of an Automated Traffic Enforcement System, and Reporting by Vendor. SB 1303 amends Vehicle Code Section 40518 to create a standard form "notice of non - liability" to be sent to the registered owner of a vehicle when the driver appears different from the registered owner. The additional operational requirements also created a uniformed guideline for the operation and established procedures to ensure compliance. Examples of this include posting signs within 200 feet of an operating photo enforced intersection, and the decision as to where to install a photo enforced intersection without considering revenue generation beyond that sufficient to cover operating costs. The Santa Ana Police Department's Photo Enforcement System is in total compliance with all of these operating requirements. SB 1303 also amends Vehicle Code Section 21455.5 to require photo enforcement vendors to submit an annual report to the Judicial Council that includes information readily available regarding the number of alleged violations captured, the number of citations issued, the number and percentage of citations dismissed by the court, and the number of traffic collisions at each intersection that occurred prior to and after the installation of a photo enforcement system. In conclusion, SB 1303 was a vote by the California Legislature in favor of Automated Traffic Enforcement Systems. The changes enacted by this legislation overrule several court decisions that are commonly used to challenge cases. AB666 is a current bill in committee that will make a photo enforcement citation a civil offense and not a criminal offense. The bill has yet to determine the penalty if guilty or how DMV points will be assessed. SB1362 (2010) would have changed the process by which the "nominations" were conducted. This would have resulted in the identification of fewer drivers, thereby reducing the number of violations we are able to file. Approximately one -third of our citations are completed through the "nomination" process, so it could have had a severe impact on revenues and the subsequent sustainability of the program. The bill passed the Senate on 06 -01 -2010 by a vote of 31 -1 but stalled and was never enacted. AB 909 passed the legislature on August 25, 2010, but then was vetoed on September 29, 2010 by Governor Schwarzenegger. The bill would have changed the penalty language of red light violations from "a fine of $100" to "a fine not exceeding $100," thereby giving the court discretion to impose a lesser fine for these infractions. Revenue and Expenses FY 2008 -09 through FY 2012 -13 r • FY 2008 -09 FY 2009 -10 FY 2010 -11 FY 2011 -12 FY 2012 -13 Fines Collected 1,241,015 1,308,608 1,836,005 1,636,212 2,541,745 Paid to Redflex 1,282,115 1,281,249 942,011 913,633 737,249 Attorney Fees 0 0 0 24,055 68,035 Est. Personnel Costs 537,539 571.135 604,731 638,327 671.923 Net Revenues (578,639) (543,776) 289,263 60,197 1,064,538 r • The City Attorney's Office (CAO) outsourced attorney services related to the ARLCS in 2013. Although it is not quantified with a value under attorney fees, the CAO handled court appearances and other legal matters prior to 2013. They continue to handle court appearances for city records and certain legal matters. Additional personnel were added in 2012 and 2013 to assist with the program. However, in 2014 the ARLCS was reorganized which allowed for a reduction in the amount of personnel necessary while still maintaining the same efficiency level. The anticipated annual personnel cost to operate the ARLCS in 2014 is approximately $612,284. Contractual Obligation The current five year contract with Redflex expires on 6- 21 -15, but the department has the option for two -one year contract extensions. The contract obligates the department to pay $78,000 a month for 20 approaches ($3,900 each), and $1,100 per month for data communication fees. In addition, the department pays approximately $8,000 monthly in legal fees for prosecution. Respectfully Submitted, RUBEN IBARRA, Commander POE REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: EXTENSION OF CONDITIONAL USE PERMIT NO. 2010 -15 TO ALLOW A CARE HOME FOR THE ELDERLY AT 1600 EAST FIRST STREET — FARAMARZI FAMILY TRUST, APPLICANT CITY MANAGER RECOMMENDED ACTION 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 Adopt a resolution approving the extension of Conditional Use Permit No. 2010 -15. DISCUSSION In March 2011, the City Council approved Conditional Use Permit No. 2010 -15 to allow a care home at 1600 East First Street. The conditional use permit allowed the conversion of an existing hotel and restaurant into a licensed residential care facility for the elderly (RCFE). Due to a weak economy over the past few years, the Faramarzi Family Trust had been unable to secure the funds necessary to begin the project. As a result, the entitlements for the site are ready to expire. Pursuant to Section 41 -647 of the Santa Ana Municipal Code (SAMC), conditional use permits (CUP) automatically become void should the property owner fail to institute an action to comply with the provisions of the CUP within two years of its approval. This section of the code also allows the property owner to request an extension of the entitlement up to a period of three years from the date of expiration. Since construction has yet to begin, the applicant would like to maintain the entitlements for the conditional use permit and is requesting a one -year extension of the entitlements. The applicant is in the process of vacating the building and has been working with a new architect to prepare construction plans for submittal into Building plan check. Further, the applicant is working to bring in foreign investors as well as local financial institutions to provide funding for the project. Since the applicants are hopeful that they can move forward this year, the Planning Division recommends that the entitlements for the licensed residential care facility for the elderly (RCFE) be extended by a period of one year from the date of approval to March 7, 2015. This will be the second one -year extension request for the property with one additional year available if needed. 55A -1 Extension of CUP No. 2010 -15 March 18, 2014 Page 2 Environmental Impact In accordance with the California Environmental Quality Act, this project is exempt from CEQA per Section 15061 (b)(3). This determination has been made as it has been determined that the proposed action will not cause a significant effect on the environment. FISCAL IMPACT There is no fiscal impact associated with this action. Karen Haluza Interim Executive Director Planning and Building Agency AN:rb AN \CC \CUP 10- 15EMenslon=2014 55A -2 ROH — 03/18/14 RESOLUTION NO. 2014- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA FOR THE EXTENSION OF CONDITIONAL USE PERMIT NO. 2010 -15 FOR ONE YEAR FOR THE PROPERTY LOCATED AT 1600 EAST FIRST STREET BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. In March of 2011, the City Council approved Conditional Use Permit No. 2010 -15 to allow the conversion of an existing hotel and restaurant into a licensed residential care facility for the elderly (RCFE) at 1600 East First Street. B. On May 6, 2013, the City Council approved a one (1) year extension of Conditional Use Permit No. 2010 -15. C. The applicant has requested another one (1) year extension for Conditional Use Permit No. 2010 -15. It is the Planning Division's policy to recommend no more than one year extensions, mainly in an effort to encourage the construction of previously approved projects. As a result, the Planning Division recommends that the entitlements for the project be extended by a period of one (1) year to March 7, 2015. D. The extension request came before the City Council on March 18, 2014. E. Due to a weak economy over the past few years, the applicant had been unable to secure the funds necessary to begin the project. However, the applicant is in the process of vacating the building and has been working with a new architect to prepare construction plans for submittal into Building plan check. Further, the applicant is working to bring in foreign investors as well as local financial institutions to provide funding for the project. F. Pursuant to City of Santa Ana Municipal Code section 41 -647, where construction does not commence, these types of entitlements expire after two (2) years unless the applicant applies for, and the City Council approves, an extension. The extension may not be for a period or periods exceeding three (3) years in total beyond the date it would otherwise become void. 55A -3 Resolution No. 2014 -XXX Page 1 of 3 G. In accordance with the California Environmental Quality Act, this project is exempt from CEQA per Section 15061(b)(3). This determination has been made as it has been determined that the proposed action will not cause a significant effect on the environment. Section 2. Conditional Use Permit No. 2010 -15 is hereby extended for a period of one (1) year to March 7, 2015. This decision is based upon the evidence submitted, which includes, but is not limited to, the Request for Council Action dated March 18, 2014, and exhibits attached thereto, and any public testimony, all of which are incorporated herein by this reference. Section 3. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this _ day of March, 2014. Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho City Attorney In Ryan O. Hodge Assistant City Attorney AYES: NOES: Councilmembers Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers Resolution No. 2014 -XXX 55A -4 Page 2 of 3 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2014- 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 55A -5 Resolution No Page 3 of 3 'P�PM REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: PROPOSED AMENDMENTS TO CLASSIFICATION AND COMPENSATION PLANS AND ANNUAL BUDGET CITY MANAQtR RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt a resolution that amends the City's Basic Management and Non - Management Classification and Compensation Plans (Resolution Nos. 91 -066 and 82 -110) and amends the City's Budget for Fiscal Years 2013 -15 to reflect these changes. DISCUSSION It is the City's practice to create new job classifications to respond to the needs of City departments when certain duties and responsibilities must be performed that are unassigned to current classifications. In an effort to meet the organization's anticipated needs, two full -time and one part -time job classification are proposed for inclusion in the City's classification and compensation plan: The City Manager proposes the creation of Downtown Development Liaison. This classification will respond to the goals of the proposed Strategic Plan by pursuing objectives that continue to shape downtown Santa Ana into a thriving, culturally diverse shopping, dining and entertainment destination. In addition, the Executive Director of Personnel Services proposes the creation of Neighborhood Improvement Projects Specialist. This classification will assist with facilitating diverse housing opportunities and support efforts to preserve and improve the livability of Santa Ana neighborhoods. Finally, the Interim Police Chief proposes the creation of Correctional Services Officer. This part -time job classification is designed to augment full -time correctional staff as part of the comprehensive plan to align cost and revenues in the Santa Ana Jail. Additionally, a minimum wage law (Assembly Bill 10) adopted by the California state legislature in September 2013 establishes the minimum wage for all employees in the State of California at $9.00 per hour, effective July 1, 2014. Hourly pay rates assigned to one unaffiliated and seven represented part -time classification titles need to be adjusted accordingly to ensure City compliance with this new mandate. 55B -1 Proposed Amendments to Classification and Compensation Plans and Annual Budget March 18, 2014 Page 2 Further, the Personnel Services Department recently commissioned a comprehensive labor market survey of compensation rates for Management job classifications. This study was deemed necessary to analyze salary compaction which exists between the City's Middle Manager job classifications and unrepresented Executive Management job classifications. Based on this analysis, the City Manager proposes adjusting the compensation for six Executive Management classifications to match the median rate paid to comparable job classifications in the labor market. These parity adjustments will ensure that the City continues to attract and retain highly qualified executive managers. Finally, the interim Executive Director of Public Works requests the addition of one Street Lighting Maintenance Worker position in order to provide more staff dedicated to repairing and maintaining the city's street lighting system and requests the reallocation of one Management Aide (UC) position to Public Works Projects Specialist in order to allocate the position to the classification most representative of the assigned duties and responsibilities. FISCAL IMPACT The cost of the increase in hourly wage rates due to the mandated minimum wage increase is estimated to be $5,639.36 for FY 2013 -14 and $22,557 for FY 2014 -15. The cost of the proposed market parity adjustments for Executive Management (EM) job classifications is $23,583 for FY 2013 -14 and $94,332 for FY 2014 -15. There is no additional cost for the proposed addition of one Street Lighting Maintenance Worker and the reallocation of one Management Aide (UC) position to the classification of Public Works Projects Specialist. These positions will be funded by utilizing monies from two budgeted vacant part -time positions. Funds are available in the respective departmental salary accounts. �A E ward S. Raya �- Executive Director PenoPe artme Carlos Rojas Acting Police ih'e,, 37=t William Galvez Interim Executive Director Public Works Agency APPROVED AS TO FUNDS AND ACCOUNTS Francisco Gutierrbl- Executive Director Finance & Management Services Agency 55B -2 RESOLUTION NO. 2014- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA TO AMEND RESOLUTION NOS. 82 -110 AND 91 -066 TO EFFECT CERTAIN CHANGES TO THE CITY'S BASIC CLASSIFICATION AND COMPENSATION PLANS WHICH INCLUDES PROVIDING PAY INCREASES FOR SEVEN PART TIME TITLES, TO ENSURE COMPLIANCE WITH STATE MINIMUM WAGE LAW, AND TO AMEND THE CITY'S BUDGET FOR FISCAL YEARS 2013 -2015. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1: The City Council hereby finds, determines and declares as follows: A. Section 1004, Article X of the City Charter of the City of Santa Ana requires the City Manager to prepare, install and maintain a position classification and pay plan subject to civil service rules and regulations and the approval of the City Council. B. On August 2, 1982, the City Council passed and adopted Resolution No. 82 -110 revising and re- establishing the Basic Classification and Compensation Plan for Officers and Employees of the City of Santa Ana. C. On July 1, 1991, the City Council passed and adopted Resolution No. 91 -066, re- establishing the Basic Classification and Compensation Plan for classifications of employment designated as unrepresented Executive Management (EM) and Middle Management (MM). D. On June 17, 2013, the City Council passed and adopted Ordinance No. NS -2844, establishing the City's Budget for Fiscal Years 2013 -2015, authorizing position allocations for Fiscal Years 2013 -2015, and requiring that alterations in the allocation of authorized positions be reviewed and approved by the City Council, E. The State of California has adopted a new minimum wage law requiring that a new minimum wage rate be put into effect beginning on July 1, 2014. Hourly pay rates assigned to one unaffiliated and six represented part -time classification titles need to be adjusted accordingly, to ensure City compliance with this new mandate. F. It is the City's practice to assign job titles that reflect the duties and responsibilities of the classification and are consistent with other classifications within the City's organizational structure as well as comparable job titles in the labor market, while maintaining internal pay equity relationships and attracting and retaining qualified candidates. 55B -3 G. In keeping with the goals of the proposed Strategic Plan, the City Manager proposes creating the new full time classification title of Downtown Development Liaison in order to continue to pursue objectives that shape downtown Santa Ana into a thriving, culturally diverse, shopping, dining and entertainment destination. H. In order to assist with facilitating diverse housing opportunities and support efforts to preserve and improve the livability of Santa Ana neighborhoods, the Executive Director of Personnel Services proposes creating the new full time classification title of Neighborhood Improvement Projects Specialist which properly reflects the duties and responsibilities to be performed, and is consistent with the City's overall classification structure. In order to continue providing efficient and effective services within the Santa Ana Jail and ensuring a sound fiscal model for jail operations, the Interim Police Chief proposes creating the new part time classification title of Correctional Services Officer. J. Based on a labor market compensation study, the City Manager proposes providing market median parity adjustments to six (6) Executive Management Classifications to ensure that the City attracts qualified applicants and retains qualified incumbents in these positions. K. The Interim Executive Director of Public Works proposes adding one (1) full time position and reallocating one (1) full time position in the current annual budget in order to ensure departmental needs are met. L. It is now desired to amend Council Resolution Nos. 82 -110 and 91 -066, as amended, and the Annual Budget for Fiscal Years 2013 -2015, as amended, in order to effect these changes. Section 2: That Section 3 Assignment of Classes of Employment To Salary Rate Ranges of Resolution No. 82 -110, as amended, be further amended by adding, in alphabetical sequence, the following two full time classification titles at the monthly seven -step salary rate ranges as set forth below: Classification Title Downtown Development Liaison Neighborhood Improvement Projects Specialist 7 -Step Salary Rate Range Effective 4/1/14 SRR Monthly Salary Minimum - Maximum 664 $5330 - $7141 663 $5304 - $7107 Section 3: That Section 3.5.1 Classification Titles and Wage Rates for Unaffiliated Categories of Non -Civil Service Part Time Employment of Resolution No. 82 -110, as amended, be further amended by: 55B -4 A. Adding, in alphabetical sequence, the following part time classification title assigned to the five hourly wage rates as set forth below: Classification Title Hourly Wage Rates Effective 4/1/14 Step A Step B Step C Step D Step E Correctional Services Officer $20.01 $21.01 $22.06 $23.19 $24.32 B. Adjusting the five hourly wage rates assigned to the following part time classification title as set forth below: Classification Title Hourly Wage Rates Effective 4/1/14 Step A Step B Step C Step D Step E Student Intern $9.00 $9.45 $9.92 $10.41 $10.93 Section 4: That Section 3.5.2 Classification Titles and Wage Rates for Long- Term Represented Categories of Non -Civil Service Part Time Employment of Resolution 82 -110, as amended, be further amended by adjusting the five hourly wage rates assigned to the following six part time classification titles as set forth below: Classification Title Hourly Wage Rates Effective 411/14 Step A Step B Step C Step D Step E Clerical Assistant $9.00 $9.45 $9.92 $10.41 $10.93 General Assistant $9.00 $9.45 $9.92 $10.41 $10.93 Maintenance Aide 1 $9.00 $9.45 $9.92 $10.41 $10.93 Page $9.00 $9.45 $9.92 $10.41 $10.93 Program Leader 1 $9.00 $9.45 $9.92 $10.41 $10.93 Sports Attendant $9.00 $9.45 $9.92 $10.41 $10.93 Section 5: That Section 3A Executive Management Classifications of Resolution No. 91 -066, as amended, be further amended by adjusting the salary rate ranges assigned to the following six full time classification titles as set forth below: Classification Title 15 -Step Salary Rate Range (SRR) Effective 4/1/14 FROM Monthly Salary TO Monthly Salary SRR Min -Max SRR Min -Max Executive Director of Community EM -31 ($9135 - $12909) EM -33 ($9599 - $13562) Development (EM) Executive Director of Finance and EM -32 ($9365- $13231) EM -37 ($10596- $14971) Management Services (EM) Executive Director of Parks, Rec EM -31 ($9135- $12909) EM -37 ($10596- $14971) and Community Services (EM) Executive Director of Personnel EM -30 ($8914 - $12593) EM -33 ($9599 - $13562) Services (EM) 55B -5 Executive Director of Planning EM -31 ($9135 - $12909) EM -35 ($10086 - $14248) and Building Safety (EM) Executive Director of Public EM -35 ($10086 - $14248) EM -38 ($10860- $15346) Works (EM) Section 6: That Ordinance NS -2844, the Annual Budget for Fiscal Years 2013- 2015, as amended, be further amended by: A. Allocating one (1) additional full time position at the following classification title and seven -step salary rate range as set forth below: Classification Title Street Lighting Maintenance Worker 7 -Step Salary Rate Range Effective 4/1/14 SRR Monthly Salary Minimum - Maximum 612 $4132 - $5542 B. Reallocating one (1) full time position as set forth below: Classification Title Salary Rate Range (SRR) Effective 4/1/14 FROM Monthly Salary TO Monthly Salary SRR Min -Max SRR Min -Max FROM Management Aide (UC) 638 ($4694- $5992) TO Public Works Projects Specialist 663 ($5304 - $7101) Section 7: That except as amended by this Resolution, all other provisions of Resolution Nos. 82 -110 and 91 -066, as amended, and the Annual Budget for Fiscal Years 2013 -2015. as amended. shall remain in full force and effect. Section 8: This Resolution shall be operative from and after April 1, 2014. ADOPTED this 18th day of March, 2014. APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By: Joseph Straka Senior Assistant City Attorney Miguel A. Pulido Mayor 55B -6 AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2014 - to be the original resolution adopted by the City Council of the City of Santa Ana on March 18, 2014. Date: 55B -7 Clerk of the Council City of Santa Ana 55B -8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: CONSIDERATION OF RESOLUTION ENCOURAGING THE UNITED STATES CONGRESS AND PRESIDENT OBAMA TO SUPPORT COMPREHENSIVE FEDERAL IMMIGRATION REFORM TO EXPAND THE DEFERRED ACTION PROGRAM TO PROTECT FAMILIES IMPACTED BY DEPORTATION CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Consider adoption of proposed Resolution to encourage comprehensive Federal immigration reforms and expansion of the Deferred Action Program to protect families impacted by deportation. DISCUSSION Councilmembers Benavides, Martinez and Sarmiento sponsored an 85A- Council Member request to agendize an immigration reform Resolution similar to those proposed in other cities. On May 20, 2013, the City Council unanimously approved Resolution No. 2013 -023 in support of comprehensive federal immigration reform and the proposed Resolution furthers that support by encouraging the United States Congress and President Obama to support the expansion of the Deferred Action Program to protect families impacted by deportation FISCAL IMPACT There is no Fiscal Impact associated with the adoption of the proposed Resolution. Sonia R. Carvalho City Attorney 55C -1 55C -2 SRC03/10/14 RESOLUTION NO. 2014 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA, IN ACCORDANCE WITH AND AS A COROLLARY TO SANTA ANA RESOLUTION NO. 2013 -023 EXPRESSING SUPPORT FOR COMPREHENSIVE FEDERAL IMMIGRATION REFORM AND URGING THE 113TH CONGRESS TO ENACT REFORMS THAT SECURE OUR BORDERS, ENSURE ECONOMIC STRENGTH AND PROMOTE STRONGER COMMUNITIES, NOW FURTHER URGING PRESIDENT OBAMA AND THE FEDERAL GOVERNMENT TO PROTECT OUR FAMILIES FROM DESTRUCTIVE AND NEEDLESS IMMIGRATION DEPORTATIONS BY SEEKING LEGISLATION TO EXPAND THE SUCCESSFUL DEFERRED ACTION PROGRAM TO INDIVIDUALS WITH NO SERIOUS CRIMINAL HISTORY WHEREAS, the City Council of the City of Santa Ana, on May 20, 2013, unanimously approved Resolution No. 2013 -023 in support of comprehensive federal immigration reform, attached hereto and incorporated by reference herein; and WHEREAS, in approving Resolution No. 2013 -023, the City specifically recognized the economic, social and cultural contributions immigrants bring to their communities and, in particular, to the City of Santa Ana, that family unity is a component of a strong economy, and re- unification of families has been a key part of federal immigration policy for almost fifty years; and WHEREAS, while Congress proceeds with consideration of comprehensive federal immigration reform relating to the over 11 million undocumented residents in the U.S., deportations under the Obama administration have reached record levels with 1,100 people deported daily; and WHEREAS, the rise in deportations under the current immigration system harm the living conditions of U.S. citizen children of undocumented parents who have been deported; and WHEREAS, the consequences of such separation of children from parents are cruel as they are left in situations of financial instability without parental guidance; and 8595315.1 55C-3 WHEREAS, many members of Congress recently signed a letter requesting that President Barack Obama suspend further deportations and expand the successful Deferred Action for Childhood Arrivals program to those individuals with no serious criminal history; and WHEREAS, there is wide - ranging support among business, labor, faith - based, and community groups for such administrative action even though President Obama has concluded that he does not have legal authority to do so, and which is viewed as one of the best ways to advance the path to citizenship for undocumented individuals across the country and enhance participation in the national conversation by those individuals who are most directly impacted; and WHEREAS, it is necessary to expand the protections of our future citizens that were established by the Deferred Action for Childhood Arrivals program and grant it to the family and neighbors and all those who have made their lives here but are yet to be fully recognized; and NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES HEREBY RESOLVE AS FOLLOWS: Section 1. The City Council of the City of Santa Ana, California, in accordance with and as a corollary to Resolution No. 2013 -023, expressing support for comprehensive federal immigration reform and urging the 113th Congress to enact reforms that secure our borders, ensure economic strength and promote stronger communities, further urges President Barack Obama and the federal government to protect our families from destructive and needless immigration deportations by seeking the adoption of legislation to expandthe successful Deferred Action for Childhood Arrivals program to those individuals with no serious criminal history; and Section 2. The Clerk of the Council is directed to send this Resolution to the President of the United States, the Speaker of the United States House of Representatives, the President of the United States Senate, and the Honorable Members of the 113th Congress representing the City of Santa Ana; and Section 3. The Clerk of the Council shall certify to the passage and adoption of this Resolution and enter it into the book of original Resolutions. 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 18th day of March, 2014. 8595315.1 55C-4 Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Resolution No. 2014 -XXX to be the original resolution adopted by the City Council of the City of Santa Ana on Date: 8595315.1 Clerk of the Council City of Santa Ana 55C -5 Attachment Resolution 2013 -023 8553 S5C -6 SRC: 5/16/13 RESOLUTION NO. 2013 -023 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA EXPRESSING SUPPORT FOR COMPREHENSIVE FEDERAL IMMIGRATION REFORM AND URGING THE 113TH CONGRESS TO ENACT REFORMS THAT SECURE OUR BORDERS, ENSURE ECONOMIC STRENGTH AND PROMOTE STRONGER COMMUNITIES WHEREAS, The City of Santa Ana recognizes the economic, social and cultural contributions immigrants bring to their communities and, in particular, to the City of Santa Ana; and WHEREAS, since the City's founding in 1869, immigrants have had a significant role in Santa Ana's cultural and economic vitality; and WHEREAS, the responsibility of municipal leaders is to protect the well- being and safety of all people residing in their cities; and WHEREAS, it is the duty of the city to respect the liberty and civil rights of all individuals, regardless of national origin or immigration status; and WHEREAS, our nation's immigration and border security policies are federal responsibilities that are in desperate need of a new, improved and modernized legal immigration system; and WHEREAS, a talented workforce made up of both skilled and unskilled labor is a key driver of our local economy; and WHEREAS, there is a need for reformed national immigration programs that provide the City's businesses the opportunity to employ foreign workers, when necessary, to improve economic competitiveness; and WHEREAS, family unity is a component of a strong economy, and re- unification of families has been a key part of federal immigration policy for almost fifty years; and WHEREAS, there is broad support and collaboration among both business and labor groups to promote comprehensive immigration reform that provides sensible and effective solutions. NOW THEREFORE, the City Council of Santa Ana does hereby resolve as follows: Section 1. The City Council of the City of Santa Ana, California, urges the United States Congress to adopt and enact comprehensive immigration reform that includes the following principles: Resolution No. 2013 -023 Page 1 of 3 55C -7 1, Providing for controlled admission, fair and just to those already in the legal immigration process that includes a defined path for permanent residency and /or citizenship for the nearly 11 million undocumented immigrants living in the United States today. 2. Establishing an improved visa program, such as the proposed W -Visa, to provide our businesses with the ability to hire certain categories of foreign workers when legal residents are unavailable or unwilling to fill jobs. 3. Creating a methodology that accurately assesses labor market needs in order to determine the number of foreign workers to be admitted for employment purposes annually. 4. Increasing efforts to advance workforce talent outreach Internationally and strengthening programs in domestic science, technology, engineering, arts, and mathematics (STEAM) training, to improve ongoing economic competitiveness, while also promoting legal immigration opportunities. 5. Creating a streamlined process to resolve the backlog of existing visa applications and developing methods to ensure the efficient processing of future immigration applications in a timely manner, which will expedite re- unification of families. Section 2. The Clerk of the Council is directed to send this resolution to the President of the United States, the Speaker of the United States House of Representatives, the President of the United States Senate, and the Honorable Members of the 113th Congress representing the City of Santa Ana. ADOPTED this 20" day of May 2013. APPROVED AS TO FORM: 'L' Ga � �2.. &;1,66t -- SONIA R. CARVALHO, CITY ATTORNEY Resolution No. 2013 -023 Page 2 of 3 55C -8 Qyv SRC: 5/16113 AYES: Councilmembers: Amezcua Benavides Martinez Pulido Revna, Sarmiento, Tinaiero (7) NOES: Councilmembers: None (0) ABSTAIN: Councilmembers: None (0) NOT PRESENT: Councilmembers: None (0) CERTIFICATION OF ATTESTATION AND ORIGINALITY I; Maria D. Huizar, Clerk of Council, do hereby attest to and certify the attached Resolution No. 2013 -023 to be the original resolution adopted by the City Council of the City of Santa Ana on May 20, 2013. Date: Clerk of Council City of Santa Ana Resolution No. 2013 -023 Page 3 of 3 55C -9 55C -10 Correspondence 55C -11 55C -12 CHICAN@a S UNIDOS de Orange County x C _ qs AV fT, February, 2014 Mayor Pulido, Mayor Pro -Tem Tinajero Councilmember; Amezcua, Benavides, Martinez, Reyna, and Sarmiento City Hall City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 Dear Mayor and Council members, Chican @s Unidos de Orange County thanks you for voting in favor of drafting a letter to President Obama asking that he stop deporting people who are living in the U.S. without legal documentation and directing the city attorney to prepare a resolution urging Obama to expand the Deferred Action for Childhood Arrivals (DACA) that was presented at the Feb. 18th council meeting. These actions support the most vulnerable residents of our City and let them know that elected officials value their contributions to our City. Our organization has done extensive research on this issue. Please do not hesitate to contact us if we can be of assistance in providing information on similar actions in neighboring cities or in moving this item forward. We greatly appreciate your support of this issue. Sincerely, Albert Castillo Co -Chair Chican @s Unidos 55C -13 55C -14 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: CONSIDERATION OF RESOLUTION IN SUPPORT OF THE PASSAGE OF ASSEMBLY BILL 1453 AND THE ESTABLISHMENT OF THE SOUTHERN CALIFORNIA STATE VETERANS'CEMETERY / e4o n" --- CITY MANAG RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Consider adoption of proposed Resolution in support of the passage of Assembly Bill 1453 and the establishment of the Southern California State Veterans' Cemetery. DISCUSSION Santa Ana's City Council passage and adoption of this resolution in support of Assembly Bill 1453 would direct the California Department of Veteran Affairs to develop a master plan for a State -owned and operated Southern California State Veterans' Cemetery in Orange County. Currently, the nearest open federal Veterans' cemetery to Orange County is the National Cemetery in Riverside, California and the two nearest State Veterans' cemeteries are located in the Central Coast and Northern California. In response to the majority of California's veterans residing in Southern California, the establishment of a Veterans' Cemetery in Orange County would help reduce current factors of distance and regional geography and provide opportunities for veterans and their families to have greater accessibility to a closer and beautiful resting place in Orange County. FISCAL IMPACT There is no Fiscal Impact associated with the adoption of the proposed Resolution. 4 Sonia R. Carvalho City Attorney 5513-1 55D -2 SRC03/12/14 RESOLUTION NO. 2014 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, IN SUPPORT OF ASSEMBLY BILL 1453 AND THE ESTABLISHMENT OF THE SOUTHERN CALIFORNIA STATE VETERANS CEMETERY WHEREAS, California is home to more veterans than any other state; and WHEREAS, the majority of California's veterans live in Southern California; and WHEREAS, the nearest currently open federal veterans cemetery to Orange County is the National Cemetery in Riverside, California; and WHEREAS, although the National Cemetery in Riverside is a beautiful resting place for veterans due to various factors — distance from Orange County, regional geography, limited driving routes, and the population density of the region —the Orange County veterans, veterans from other Southern California coastal areas, and veterans' families find access to available National Veterans Cemeteries challenging; and WHEREAS, the two State Veterans Cemeteries are also distant from Orange County — Northern California State Veterans Cemetery is located near Redding in Igo, California, and the Central Coast State Veterans Cemetery will be located in Monterey; and WHEREAS, Assembly Bill 1453 is pending in the California State Legislature, directing the California Department of Veterans Affairs to develop a master plan for a State -owned and operated Southern California Veterans Cemetery to be located in Orange County; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES HEREBY RESOLVE AS FOLLOWS: Section 1. The City Council of the City of Santa Ana, California, supports the passage of Assembly Bill 1453 and the establishment of a Southern California Veterans Cemetery in Orange County. Section 2. The Clerk of the Council is directed to send this Resolution to all elected officials representing the City of Santa Ana in the California State Legislature; and Section 3. The Clerk of the Council shall certify to the passage and adoption of this Resolution and enter it into the book of original Resolutions. 8595315.2 55D-3 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 18th day of March, 2014, Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney la City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Resolution No. 2014 -XXX to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana 8595315.2 55D-4 Correspondence 55D -5 55D -6 Mitre - Ramirez, Norma To: Huizar, Maria Subject: RE: (REPLY ...) ... OC Veterans Cemetery ... From: Huizar, Maria Sent: Thursday, March 13, 2014 12:07 PM To: Mitre - Ramirez, Norma Cc: Orozco, Norma Subject: FW: (REPLY ...) ... OC Veterans Cemetery ... Correspondence for Agenda packet. - - -- Forwarded Message - - - -- From: P. David Benavides <pdavidbCa.gmail.com> To: Zeke Hernandez <zekeher(dyahoo.com> Sent: Wednesday, March 12, 2014 3:25 PM Subject: Re: GREAT NEWS -- OC Veterans Cemetery // Irvine Council agenda Great job Zeke! P. David Benavides, Broker Associate Seven Gables Real Estate BRE No. 01416399 pdavidb(cDgmail.com 714.651.4380 On Mar 11, 2014, at 10:49 PM, Zeke Hernandez <zekeher(a yahoo.com> wrote: To: Los Amigos of OC / Santa Ana LULAC #147 Members 1st- I would like to thank John Palacio for shepherding the support resolution for the OC Veterans Cemetery thru the SAUSD Board of Education. It passed earlier this evening on a 5 -0 vote. I also understand it may have also passed in 2 or 3 other cities, including Buena Park, Cypress; and perhaps Anaheim Union High School District. Coast Community College District Board of Trustees approved last week. Cities of Fullerton and Anaheim have approved + others are coming on- board. 2nd -- THE BIGGER NEWS! IRVINE CITY COUNCIL ALSO PASSED AND ADOPTED THE RESOLUTION SUBMITTED BY COUNCILMAN LARRY AGRAN, including the intent to look at 100 acres for the cemetery. - BY A VOTE OF 4 -1. There was a substitue motion by Shea, 2nd by Mayor Choi to not support and to have a committee look at a fesibility study, etc. This lost by 3 -2 vote, surprisingly Greg Lalloway sided with Beth Krom and Agran on this vote. This then led the way for a vote on the main motion to approve the resolution. The final vote: YES: Agran, Krom, Lalloway, and Mayor Choi. NO: Shea. Yes, Choi changed his vote ... after expliainaining that a cemetery would be bad for sales of homes due to feng shui (having homes close to cemetery). 5- Points is doing major marketing to of Great Park homes to Chinese and Korean buyers. 1 3/13/2014 1:32 PM 55D-7 1:32 PM I am including as attachments - the Irvine City Council Agenda memo + resolution; my comments as read to the City Council; and letter of support by Santa Ana LULAC #147 (copiies of both of these were provided to council + City Manager. We Did it! Now it's on to the passage of bill AB 1453 in Sacramento. Thanks, Zeke Hernandez President (Past State Director) Santa Ana LULAC #147 League of United Latin American Citizens PO Box 1810, Santa Ana, CA 92702 714- 661 -4428 (cell) http://www.lulacsantaana.com/ http: / /www.lulac.org/ (National LULAC) 2 3/13/2014 1:32 PM 55D-8 1:32 PM League of United Latin American Citizens Santa Ana LULAC Council #147 I I Established: National - 1929 1 Santa Ana - 1946 Orange County LULAC District #1 PO Box 1810, Santa Ana, CA 92702 -1810 February 18, 2014 Santa Ana Mayor and City Council City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92701 Re: Support for AB 1453 (Orange County Veterans Cemetery) Hon. Mayor Pulido and Councilmembers: Santa Ana League of United Latin American Citizens, Council #147 respectfully requests the Santa Ana City Council for support of Assembly Bill 1453 (AB 1453) authored by California Assembly Member Sharon Quirk - Silva. AB 1453 would direct the California Department of Veteran Affairs to establish a Southern California Veterans Cemetery in Orange County. California is home to more military veterans than any other state in our nation with a large majority of these veterans residing in Southern California. According to the National Cemetery Administration, the closest regional option for Orange County veterans is Riverside Veterans Cemetery, which offers neither a convenient location nor a long term solution for those who have served in the military branches. Despite the fact that Orange County is home to Army, Navy, and Marine bases, Orange County has been identified as the state's largest county without a state cemetery for veterans. Santa Ana LULAC #147 strongly supports Assembly Bill 1453 and proudly note our membership includes several military veterans. As a special note, within our present membership, we are honored to have Mr. Jess Saenz, a World War II veteran who is still very active in community activities and student scholarship fundraising efforts. Not many months ago, we have felt the pain on the passing of Mr. Ralph Perez, also a World War II veteran who also contributed much to our community throughout his lifetime. These two heroes serve as a reminder that we shall continue to celebrate the lives and contributions of all the men and women veterans who have courageously served our country in time of war and peace. We urge the support of the City Council and the City of Santa Ana and request an expeditious process for a positive action of approval for a future California Veterans Cemetery in Orange County. The bill AB 1453, a fact sheet, and sample resolution is being provided (attachments) for your review and we would be happy to provide additional information to assist the City Council in determining your approval of our request. I may be contacted by email at zekeher@yahoo.com or by phone at 714- 661 -4428 (cell) for any follow - up if you so desire. Sincerely, 406 I%VeAr Zeke Hernandez President cc: Santa Ana LULAC #147 Members 55D -9 55D -10 RESOLUTION NO. CITY ORANGE COUNTY, CALIFORNIA AUTHORIZATION TO SUPPORT CALIFORNIA STATE ASSEMBLY BILL 1453 THE RESOLUTION OF THE CITY OF EXPRESSING SUPPORT FOR CALIFORNIA STATE ASSEMBLY BILL 1453 WHICH ESTABLISHES A SOUTHERN CALIFORNIA STATE VETERANS CEMETERY WHEREAS, California is home to more veterans than any other state; and WHEREAS, the majority of California's veterans live in Southern California; and WHEREAS, employees of the City of are currently serving in the United States Armed Forces and /or served in the past; and WHEREAS, the nearest currently open federal veterans cemetery to Orange County is the National Cemetery in Riverside, California; and WHEREAS, although the National Cemetery in Riverside is a beautiful resting place for veterans, due to its distance from Orange County, regional geography, limited driving routes, and the population density of the region, the needs of Orange County veterans, veterans from other Southern California coastal areas, and veterans' families are not met by the National Cemetery in Riverside; and WHEREAS, the two State Veterans Cemeteries are distant from Orange County; the Northern California State Veterans Cemetery is located in near Redding in Igo, California, and the Central Coast State Veterans Cemetery will be located in Monterey, California; and WHEREAS, Assembly Bill 1453 is pending in the California State Legislature, directing the California Department of Veterans Affairs, to develop a master plan for a State -owned and operated Southern California Veterans Cemetery to be located in Orange County; and NOW, THEREFORE, BE IT RESOLVED THAT, the City of supports and urges that the California State Legislature adopts and enacts CALIFORNIA ASSEMBLY BILL 1453 WHICH ESTABLISHES A SOUTHERN CALIFORNIA STATE VETERANS CEMETERY BE IT FURTHER RESOLVED THAT, the City of is directed to send this resolution to the Governor of the State of California; the Senate President pro Tem. and Senate Minority Leader of the California State Senate; the Speaker and Minority Leader of the California State Assembly; Members of the Orange County Congressional Delegation; Members of the Orange County 55D -11 State Legislative Delegation and the Members of the Orange County Board of Supervisors. THE FOREGOING vote: AYES: NOES: ABSENT: ABSTAIN: Mayor, City of RESOLUTION is approved this day of 55D -12 and adopted by the City of 2014, by the following roll call Veterans cheer Irvine's cemetery support, but there's no guarantee Orange County Register BY KIMBERLY PIERCEALL / STAFF WRITER Published: March 12, 2014 Updated: 4:54 p.m. Irvine doesn't have a single cemetery. Orange County doesn't have a single cemetery specifically for veterans. Tuesday night, after a sometimes emotional debate, four out of five Irvine leaders voted to support an Assembly bill that calls for a state veteran cemetery in Orange County and to consider offering up 100 acres at the Great Park for a site. Consider is the key word, though. While supporters of the efforts - among them, those wearing medals on their blazers, patches on vets and cross - section of military uniforms - cheered inside City Hall late Tuesday as if they had won a deed to the land, what was approved was just an expression of "strong interest" in offering up 100 acres. Council members who supported the resolution noted that it doesn't legally obligate the city to do anything beyond consider it. Councilman Jeff Lalloway noted that there would still be many factors to study including how the land, wherever it is, would be transferred (Sale? Lease? Gift ?). Land for state cemeteries would need to be transferred to the state. Assembly Bill 1453 introduced by Sharon Quirk -Silva in January doesn't name the Great Park specifically, but a group of veterans has eyed wide -open acreage at the former El Toro Marine Base for some time. Wayne Greenleaf was among 30 people who spoke in support of the cemetery during public comments, telling the council that it wasn't necessary, nor required, for local leaders to give veterans like himself a final resting place closer to home, "but maybe it is fair, fitting and the right thing to do," he said. "Maybe, just maybe, we owe them that much." The nearest national cemeteries open for burials are in Riverside and San Diego a distance criticized by veterans and members of the public at the meeting who said it's too far a drive for families to visit loved ones. But Riverside and San Diego cemeteries are still within 75 miles of Orange County, the distance taken into account before the federal government considers opening a new national cemetery. 55D -13 That's why veteran cemetery advocates are seeking a state cemetery. There are three state cemeteries open or in the works all in Northern and Central California, including Fort Ord cemetery in Monterey that has been slow to launch because of a requirement to set up an endowment to cover operations and burials costs. Councilwoman Christina Shea had misgivings though about sending a signal that the city could offer 100 acres of Great Park land, citing contractual agreements the city has with its private development partner FivePoint Communities and legal restrictions on the land. "I can't make a promise tonight that the Great Park will be the exact site," she said. Her proposal to instead support the Assembly bill but call for a study looking at the costs and land opportunities at the Great Park failed by a vote of 2 -3 with just Mayor Steven Choi agreeing. While she spoke, a couple members of the crowd shouted back or loudly coughed. And when she was done, there was silence - unlike the raucous applause after other city council members spoke in support of the cemetery resolution. Councilman Larry Agran who proposed the city's resolution of support Tuesday, said it was possible to work with FivePoint and said they needed to move "very, very quickly" to seize the moment at hand. "I think this bill is going to sail through the Assembly," Agran said later. A veterans' cemetery at the Great Park is far from a certainty. A public cemetery had been included in early Great Park plans and would have been on property owned by developer Heritage Fields - now FivePoint Communities. But in an amended agreement with the developer, the cemetery was removed from its obligations. The developer also settled a lawsuit with Forest Lawn after it nixed its cemetery plan. A feng shui consultant the developer hired to assist in its home and residential neighborhood design has said that a nearby cemetery could pose a problem for Asian buyers. In a letter to the Council, Brian Myers with FivePoint Communities reminded the city's leaders of land -use restrictions relative to its development agreement and pointed out that there had been no study of how a veteran cemetery would impact the park's plan before Tuesday's meeting. "However, we are willing to engage in a study process with the city for potential sites in the city and the surrounding areas of the county," he wrote. The bill would still need to make it first through the Committee on Veterans Affairs chaired by Quirk - Silva, Committee on Appropriations, then the full Assembly and then the Senate 55D -14 and signed by Governor Brown by Aug. 31. Since it's the end of a two -year legislative term, the bill would die if that doesn't happen. If it becomes a law, the state would need to apply for and win federal funding. The bill isn't on the Veterans Affairs committee's calendar, yet, but John Spangler, the committee's chief consultant, said he expects it to be heard either April 8 or April 29. It needs to pass in the Assembly by May 30. No other Orange County sites have been considered, yet, besides the Great Park but that doesn't necessarily mean that other sites may not exist. Agran also asked that the city manager assemble an ad hoc committee made up of veterans and representatives from the developer to look at options for a cemetery. NUMBER OF VETERANS IN SOUTHERN CALIFORNIA Los Angeles County: 345,098 Riverside County: 139,008 Orange County: 136,611 San Bernardino County: 108,816 Kern County: 45,745 Imperial County: 6,631 Source: U.S. Census Bureau American Community Survey 2008 -2012 55D -15 MACKENZIE REISS, STAFF PHOTO In a photo taken last June 2013, veterans Bill Cook (front left), Elisandro "Alex" Diaz, Louie Quezada, Peter Katz, Brian Chuchua, Zeke Hernandez, and Richard Ramirez stand and salute at the Great Park. The men are part of a group of Orange County veterans advocating fro a veterans cemetery in the Orange County Great Park, which was once the home of the Marine Corps Air Station El Toro. 55D -16 Mitre - Ramirez, Norma From: Huizar, Maria Sent: Thursday, March 13, 2014 12:10 PM To: Mitre - Ramirez, Norma Cc: Orozco, Norma Subject: FW: GREAT NEWS -- OC Veterans Cemetery // Irvine Council agenda Attachments: Memo and Resolution in Support of AB 1453.pdf; VetCem SupportLtr_Quirk- Silva.docx; VetCem ICCLtr 2014- 0311.docx Norma, another letter from Mr. Hernandez for the record. Thank you. From: Zeke Hernandez [ma!Ito :zekeher(&yahoo.coml Sent: Tuesday, March 11, 2014 10:50 PM To: Zeke Hernandez Subject: GREAT NEWS -- OC Veterans Cemetery // Irvine Council agenda To: Los Amigos of OC / Santa Ana LULAC #147 Members 1st - I would like to thank John Palacio for shepherding the support resolution for the OC Veterans Cemetery thru the SAUSD Board of Education. It passed earlier this evening on a 5 -0 vote. I also understand it may have also passed in 2 or 3 other cities, including Buena Park, Cypress; and perhaps Anaheim Union High School District. Coast Community College District Board of Trustees approved last week. Cities of Fullerton and Anaheim have approved + others are coming on- board. 2nd -- THE BIGGER NEWS! IRVINE CITY COUNCIL ALSO PASSED AND ADOPTED THE RESOLUTION SUBMITTED BY COUNCILMAN LARRY AGRAN, including the intent to look at 100 acres for the cemetery. - BY A VOTE OF 4 -1. There was a substitue motion by Shea, 2nd by Mayor Choi to not support and to have a committee look at a fesibility study, etc. This lost by 3 -2 vote; surprisingly Greg Lalloway sided with Beth Krom and Agran on this vote. This then led the way for a vote on the main motion to approve the resolution. The final vote: YES: Agran, Krom, Lalloway, and Mayor Choi. NO: Shea. Yes, Choi changed his vote ... after expliainaining that a cemetery would be bad for sales of homes due to feng shui (having homes close to cemetery). 5- Points is doing major marketing to of Great Park homes to Chinese and Korean buyers. I am including as attachments - the Irvine City Council Agenda memo + resolution; my comments as read to the City Council; and letter of support by Santa Ana LULAC #147 (copiies of both of these were provided to council + City Manager. We Did it! Now it's on to the passage of bill AB 1453 in Sacramento. Thanks, Zeke Hernandez President (Past State Director) Santa Ana LULAC #147 League of United Latin American Citizens PO Box 1810, Santa Ana, CA 92702 714 - 661 -4428 (cell) www.LULACSantaAna.com www.LULAC.org (National LULAC) Sent: Tuesday, March 4, 2014 3:29 PM Subject: Irvine Council agenda 1 3/13/2014 1:17 PM 55D -17 1:17 PM Team, The latest news .... Hi Bill, We are on the agenda, but cannot yet confirm time. Attached is what was submitted. CARYN PUMA I EXECUTIVE ASSISTANT TO COUNCILMEMBERS LARRY AGRAN AND BETH KROM I CITY OF IRVINE 949 - 774 -6226 1 i Ovic Center P[aza I Irvine, 0, 92606 1 www.citvofirvine.org 2 3/13/2014 1:17 PM 55D -18 1:17 PM League of United Latin American Citizens Santa Ana LULAC Council #147 i Established: National - 1929 1 Santa Ana - 1946 Orange County LULAC District #1 PO Box 1810, Santa Ana, CA 92702 -1810 February 17, 2014 Hon. Sharon Quirk -Silva Member of the California State Assembly, 65th District 1400 North Harbor Boulevard, Ste. 601 Fullerton, California 92835 Re: SUPPORT FOR AB 1453 Assembly Member Sharon Quirk - Silva: Santa Ana League of United Latin American Citizens, Council #147 is pleased to provide this letter of support for your recently submitted legislative bill AB 1453. As Chairperson of the California State Assembly Committee on Veterans Affairs, you are keenly aware of the need for the development of more cemeteries in our state so as to be available to those who have served in our country's military services. With your introduction of this bill, active military personnel and veterans will be supremely fortunate of the intended establishment of a state -owned and state - operated veterans' cemetery in Orange County. Personally, my parents were very proud that three of their seven sons served in the United States Army during the Vietnam era. My two brothers, John and Lee both were deployed in- country Vietnam in the 1960s; while I served (1966 -68) stateside in Hawk Missile Artillery. Two of our local council, Ralph Perez (now deceased) and Jess Saenz served in World War II. It is with deep respect that we honor the courage and commitment our two local LULAC council WWII veterans in support of freedom and democratic principles throughout the world. We believe very deeply of our commitment to those who serve in the military (past and present), and we all have a profound love of country and its ideals for the common person. To have a cemetery for veterans in Orange County is a vision for many veterans and we fully would agree with others that it is very much needed for those who have served in the military. Santa Ana LULAC Council #147 applauds your committed efforts and we are ready to assist in the approval of AB 1453 by our California State Legislature, with the signature of Governor Jerry Brown when scheduled. Please do not hesitate to contact me and Santa Ana LULAC #147 by email at zekeher(ftahoo.com or by telephone at 714 - 661 -4428 (cell). Sincerely, Zeke Hernandez President 55D -19 55D -20 A& OCVMP ORANGE COUNTY VETERANS MPMOM& PARK March 11, 2014 Irvine City Council 1 Civic Center Plaza Irvine, California 92606 Mayor Choi, Councilmembers, City Staff, and Residents of Irvine, My name is Zeke Hernandez, a neighbor - born in the City of Santa Ana. I am President of Santa Ana LULAC, the League of United Latin American Citizens; I am also speaking tonight as the Vice Chairperson of the Orange County Veterans Memorial Park Committee. I can say it is 100% certain that those speaking to you in favor of the resolution on the agenda this evening are speaking for all military veterans who have and are today serving our great country, these United States of America. I served in the U.S. Army Artillery Hawk Missle Air Defense (1966 -65); at the same time two of my brothers, John and Lee were fighting the war in Vietnam. Two members of our local chapter served in WWII - Ralph Perez was laid to rest earlier this year, and Jess Saenz still lives and continues to be active raising funds for student scholarships. I've had many conversations with Nam veteran Sgt. Roy Benavidez, a Medal of Honor recipient. A medic looked into his body bag, ready to zip it up, and quickly realized Roy was alive after wiping Roy's spit on his face - a sign that he wanted to come home rather than to die on foreign soil. Men and women in uniform continue the legacy of those before them, even prior to the founding of our nation. They lived for our country - it is with much respect and honor that we can truly say our lives and life are today is because of the great generations before us and of today's generation of the men and women in uniform. Today, a veteran can be buried to the north in LA, to the east in Riverside, to the south near San Diego. Just last week, another Medal of Honor recipient, Orange County's own Walt Ehlers was buried - not in OC, but in Riverside. Truly he was an "American Treasure ". If we only had a veterans cemetery in OC, then maybe one day perhaps, our American hero can come home where he belongs. I want to believe that council members can give meaning to those who have honored our country by serving in time of peace and war. To be able to look a person, a veteran in their eyes and say to them we have voted our conscience. We gave meaning to your service by choosing a plot of land from this base of operations where thousands served. To give peace to their families by strongly saying that as elected officials voted with honor to honor those who gave so much to the future of our great nation. That the City of Irvine places the highest of values to the land consecrated by those who gave so much so that others may live a great life in this Great Land. Thank You, ,U6 AdOW&W9Z 55D -21 55D -22 tFy RECEIVED E MAP ® 9 2014 To: City Manager Sean Joyce CITY OP I)tVW From Councilmember Larry Agran CrN MANAGER'S OFFIC13 Date: March 3, 2014 Re: A Resolution in Support of AS 1453, Establishing a State Veterans Cemetery in Orange County Please agendize the above - indicated item for City Council discussion and action, 1 intend to offer the attached Resolution for Council consideration and adoption at our March 11, 2014 meeting, Sharon Quirk - Silva, former Mayor of Fullerton and now State Assemblywoman for the 65th District, recently introduced Assembly Bill 1453 — legislation to establish a State Veterans Cemetery in Orange County. Assemblywoman Quirk - Silva, whols Chair of the Assembly Committee on Veterans Affairs, has undertaken this bipartisan effort with strong support and leadership offered by the Orange County Veterans Memorial Park Committee, chaired by Bill Cook, Chaplain for District 29 and Past Commander of Saddleback Valley Post 862 of the American Legion. The veterans and others have made clear their interest In establishing the Veterans Memorial Park and Cemetery at the Orange County Great Park (formerly MCAS El Toro), on a parcel of land of at least 100 acres. Of course, the introduction of AB 1453 in Sacramento is just the first step. Many challenges lie ahead — gaining legislative approval, the Governor's signature, budget appropriations, and securing federal grant funds to pursue a specific proposal for a Veterans Cemetery at the Great Park. Essential to ultimate success is an outpouring of support locally — from Orange County cities and citizens. Irvine should be at the forefront of this effort, It is difficult to imagine a more poignant final resting place for veterans — thousands of whom served at MCAS El Toro in wartime and peacetime, dating back to 1943. The Great Park Master Plan, honoring the extraordinary history and service associated with El Toro, calls for a Veterans Memorial at the Great Park. Now, we have a chance to establish a Veterans Memorial and Cemetery at the Great Park. Attached you will find my proposed Resolution of Support, as well as a copy of AB 1453, which is expected to be heard by the Assembly Committee on Veterans Affairs within the next 45 days. cc: City Council, City Clerk I A,r ,,n 55D -23 55D -24 CITY COUNCIL RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF IRVINE. IN SUPPORT OF ASSEMBLY BILL 1453 AND THE ESTABLISHMENT OF THE SOUTHERN CALIFORNIA STATE_ VETERANS CEMETERY WHEREAS, California is home to more veterans than any other state; and WHEREAS, the majority of California's veterans live in Southern California; and WHEREAS, the nearest currently open federal veterans cemetery to Orange County is the National Cemetery in Riverside, California; and, WHEREAS, although the National Cemetery in Riverside is a beautiful resting place for veterans, due to various factors — distance from Orange County, regional geography, limited driving routes, and the population density of the region -- the Orange County veterans, veterans from other Southern California coastal areas, and veterans' families find access to available National Veterans Cemeteries challenging; and, WHEREAS, the two State Veterans Cemeteries are also distant from Orange County --- the Northern California State Veterans Cemetery is located near Redding in Igo, California, and the Central Coast State Veterans Cemetery will be located in Monterey; and, WHEREAS, Assembly Bill 1453 is pending in the California State Legislature, directing the California Department of Veterans Affairs to develop a master plan for a State -owned and operated Southern California Veterans Cemetery to be located in Orange County; NOW, THEREFORE, the City Council of the City of Irvine DOES HEREBY RESOLVE as follows: SECTION 1. That the City of Irvine supports the passage of Assembly Bill 1453 and the establishment of a Southern California Veterans Cemetery in Orange County. SECTION 2. That the City of Irvine expresses its strong interest in providing at least 1.00 acres of land at the Orange County Great Park (formerly the Marine Corps Air Station at El Toro), for purposes of creating a Southern California Veterans Memorial and Cemetery, PASSED AND ADOPTED by the City Council of the City of Irvine at a regular meeting held on the 11t" day of March, 2014. MAYOR OF THE CITY OF IRVINE 55D -25 ATTEST: CITY CLERK OF THE CITY OF IRVINE STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF IRVINE ) I, Marie Macias, Interim City Clerk of the City of Irvine, HEREBY DO CERTIFY that the foregoing resolution was duly adopted at a regular meeting of the City Council of the City of Irvine, held on the 11th day of March 2014. AYES: 0 COUNCILMEMBERS: NOES: 0 COUNCILMEMBERS: ABSENT: 0 COUNCILMEMBERS: CITY CLERK OF THE CITY OF IRVINE 55D -26 CALIFORNIA UGISLATURL'- -- 2013 -14 REGULAR SL'SSION ASSEMBLY BILL No. 1453 Introduced by Assembly Member Quirk -Silva January 9, 2014 An act to add Chapter 9.9 (commencing with Section 1410) to Division 6 of the Military and Veterans Code, relating to veterans, and making an appropriation therefor. lXGISLATIVB COUNSEL'S IMMT AB 1493, as introduced, Quirk - Silva. Southern California Veterans Cemetery. The Department of Veterans Affairs is created instate government and the Secretary of Veterans Affairs is the head of the department. Under existing law, the Department of Veterans Affairs, in voluntary cooperation with the Shasta County Board of Supervisors and the boards of supervisors of specified northern California counties, is required to design, develop, and construct a state -owned and state- operated Northern California Veterans Cemetery. This bill would require the department, in voluntary cooperation with the Orange County Board of Supervisors and city councils of other participating southern California cities, to design, develop, and construct a state -owned and state- operated Southern California Veterans Cemetery. The bill would make all honorably discharged veterans and their spouses and children eligible for interment in the cemetery. The bill would impose a fee of 4_ for each spouse or child interred in the cemetery. The bill would create the Southern California Veterans Cemetery Master Development Fund, a continuously appropriated fund, and would require all moneys received for the design, development, and 99 55D -27 AB 1453 —2— construction of the Cemetery to be deposited in this fund. By creating a continuously appropriated fund, the bill would make an appropriation. The bill would also create the Southern California Veterans Cemetery Perpetual Maintenance Fund and would direct all moneys received for the maintenance of the cemetery, including those moneys received for the interment of a spouse or child. The bill would make proposals for the construction, placement, or donation of monuments and memorials to the cemetery subject to review by a specified advisory committee and subject to final approval by the Secretary. The bill would authorize the cemetery administrator to accept donations of personal property to be used for the maintenance or beautification of the cermetcty, The bill would require cash donations to be deposited into the Northern California Veterans Cemetery Donations Fund, a continuously appropriated fund created by this bill, and would require the cash donations to be expended for the maintenance and repair of the facility, as specified. By oreatirng a continuously appropriated fund, the bill would make an appropriation. Vote: majority, Appropriation: yes. Fiscal committee: yes. State - mandated local program: no. The people ofthe State of California do enact as,firllows 1 SECTION 1, Chapter 9.5 (commencing with Section 1410) is 2 added to Division 6 of the Military and Veterans Code, to read: 3 4 CHAPTER 9.5. SOUTHERN CALIFORNIA VETERANS CEMETERY 5 6 1.410. (a) (1) The department, in voluntary cooperation with 7 the Orange County Board of Supervisors and the city councils of 8 other participating southern California cities as specified to Section 9 1412, shall design, develop, and construct a skate -owned and 10 ,state- operated. Southern California Veterans Cemetery, which shall 11 be located in Orange County, California. 12 (2) The department shall oversee and coordinate the design, I3 development, and construction of the cemetery. 14 (3) For purposes of this chapter, "department" means the 15 Department of Veterans Affairs. 16 (b) (1) All honorably discharged veterans and their spouses 17 and children are eligible for internment in the cemetery. A fee of 9P 55D -28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 -3— AB 1453 dollars, ($___) shall be charged for each spouse or child interred in the cemetery, This fee shall not exceed the reasonable costs to the department for internment in the cemetery. (2) For the purposes of this subdivision, the department shall adopt regulations to specify the eligibility requirements for interment in the cemetery. These regulations shall be adopted pursuant to the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government. Code). (3) All fees received pursuant to paragraph (1) shall be deposited in the Southern California Veterans Cemetery Perpetual Maintenance Fund created pursuant to Section 1.412. 1412. (a) For the purposes of Section I410, the Orange County Board of Supervisors may join with the city councils of cities within Orange County wishing to participate in the design, development, and construction of the cemetery. (b) All moneys received for the design, development, and construction of the cemetery shall be deposited in the Southern California Veterans Cemetery Master Development Fund, which is hereby created in the State Treasury, Notwithstanding Section 13340 of the Government Code, money in the fund is continuously appropriated to the department for the purpose of designing, developing, constructing, and equipping the cemetery. Moneys appropriated by the Legislature for these purposes shall also be deposited in the fund. (c) (1) All moneys received for the maintenance of the cemetery, including moneys received pursuant to subdivision (b) of Section 1410, shall be deposited in the Southern California Veterans Cemetery Perpetual Maintenance Fund, which is hereby created in the State Treasury. Any state funding for the annual maintenance of the cemetery shall be appropriated by the Legislature in the annual Budget Act. (2) It is estimated that, after the construction of the cemetery, dollars ($_.) should be appropriated annually by the Legislature in the annual Budget Act or the participating southern California counties, or both, to the department for the operating costs of the cemetery. (3) Total expenditures for operations and maintenance should not be more than .—_ dollars ($_) per fiscal year, as appropriated in the annual Budget Act. 55D -29 99 AR 1453 1 2 3 4 5 6 7 8 9 10 1.1 12 13 1,4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Me 1414. (a) Proposals for the constivctiorn, placement, or donation of monuments and memorials to the cemetery shall be subject to review by an advisory committee comprised of the cemetery administrator, representatives from Orange County, local veterans' service organizations, and others as approved by the secretary. (b) All proposals for the Construction, placement, or dentition of monuments and memorials to the cemetory shall be subject to the final approval of the secretary. (c) The department shall adopt regulations for the policies and procedures to be followed with respect to the design, placement, and approval of monuments and memorials proposed to be placed on the cemetery grounds. These regulations shall be adopted pursuant to the Administrative Procedure Act (Chapter 15 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government. Code). 1416. (a) Notwithstanding Section 11005 of the Government Code, the cemetery administrator, subject to the approval of the secretary, may accept donations of personal property, including cash or other gill's, to be. used for the maintenance or beautification of the cemetery. (b) Crash donations made pursuant to subdivision (a) shall be deposited into the Northern California Veterans Cemetery Donations Fund, which is hereby created Notwithstanding Section 13340 of the Government Code, money in the fund is continuously appropriated to the department for the maintenance and repair of the facility or, subject to the approval of the secretary, for a specified cemetery maintenance or beautification project designated by the donor. 0 55D -30 99 a==" 0 M CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: REVIEW AND ADOPTION OF THE FIVE -YEAR STRATEGIC PLAN (FY2014 -15 THRU FY 2018 -19) CITY MANAGER CLERK OF COUNCIL USE ONLY: 044:• ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2n' Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO 191fi�dl.I.11x 7 Review and adopt the five -year strategic plan (FY2014 -15 thru FY2018 -19). DISCUSSION On October 15, 2012, the Mayor and City Council adopted the Sunshine Ordinance to enhance transparency and foster community engagement. An element of the Sunshine Ordinance is the development of a five -year Strategic Plan to re- establish the City's mission, vision and goals to guide the City's future. In early 2013, the City Council established a Strategic Planning Ad Hoc Council Committee to provide guidance in the strategic planning process. The Ad Hoc Council Committee provided direction for the planning process and recommendation for broad outreach efforts and involvement from various community stakeholders such as residents, businesses, non - profit organizations, students, faith -based community, property owners, educators, employees, and others. The City's outreach and community engagement efforts included: community forums, workshops, meetings, focus groups, online survey, and online comments which provided the basis to develop the five -year strategic plan. In total, the City held nine outreach events with more than 2,100 participants and recorded over 1,300 comments. As a result, the Mayor and City Council, the City Manager, staff and the community worked diligently to develop a five -year Strategic Plan. The mission, "To deliver efficient public services in partnership with our community which ensures public safety, a prosperous economic environment, opportunities for our youth, and a high quality of life for residents," serves as the foundation for the City's seven goals. The goals are Community Safety; Youth, Education, Recreation; Economic Development; City Financial Stability; Community Health, Livability, Engagement and Sustainability; Community Facilities and Infrastructure; and Team Santa Ana allow the City to align its efforts and resources to accomplish goals and achieve positive progress for the community of Santa Ana. 65A -1 Review and Approval of the Five -year Strategic Plan March 18, 2014 Page 2 The Strategic Plan includes a total of 145 strategies of which 106 are currently funded within the budget. In order to prioritize and allocate funding to the remaining 39 unfunded strategies, staff has prepared a matrix. The matrix identifies funding priorities in three categories; consensus (6 to 7 stars), general consensus (5 stars) and all others (1 to 4 stars) in descending priority. It is important to emphasize that the unfunded consensus strategies are equivalent to the $2M included in the revised five -year budget forecast approved by the Mayor and Council at the February 4t" City Council meeting. General consensus and all other remaining unfunded strategies add up to $3.25M. The strategic plan is a living document which features a framework that can be adjusted based on the current needs of the community. On a periodic basis, the City will provide updates on the progress and performance of each goal, objective, and strategy. As such, the plan may be modified to ensure that stated goals are aligned with the needs of the community. Furthermore, with the adoption of the 5 -year strategic plan, the strategic planning and budgeting process are now linked to assure that the City's budget reflects City Council and community priorities. With the development and implementation of the strategic plan, the City of Santa Ana reaffirms its commitment to continue to provide exceptional services and programs to its community. FISCAL IMPACT There is no fiscal impact associated with this action. However, funding will be appropriated in April of 2014 based on Mayor and City Council approved strategic plan. Attachment A — Final Draft Five -Year Strategic Plan (Accessible on the City's website - http://www.ci.santa-ana.ca.us/stratevic-plaiining ) 65A -2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 18, 2014 TITLE: PUBLIC HEARING — AMENDMENT APPLICATION NO. 2013 -04, TENTATIVE TRACT MAP NO. 2013 -05 (COUNTY MAP NO. 17546) AND SITE PLAN REVIEW NO. 2013 -04 TO CHANGE THE ZONING FROM GENERAL AGRICULTURAL (A1) TO SPECIFIC DEVELOPMENT NO. 86 TO SUBDIVIDE THREE PARCELS INTO 28 CONDOMINIUMS FOR AT 4226- 4306 WEST FIFTH STREET — URBAN LAND, LLC, APPLICANT CITY MAN ER CLERK OF COUNCIL USE ONLY: _50:• _E ❑ As Recommended ❑ As Amended ❑ Ordinance on 16' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Approve and adopt the Negative Declaration, Environmental Review No. 2013 -04. Adopt an ordinance approving Amendment Application No. 2013 -04 and Specific Development No. 86. 3. Adopt a resolution approving Tentative Tract Map No. 2013 -05 (County Map No. 17546) as conditioned. 4. Adopt a resolution approving Site Plan Review No. 2013 -04 as conditioned. PLANNING COMMISSION ACTION On February 24, 2014, the Planning Commission recommended that the City Council approve and adopt the Negative Declaration, Environmental Review No. 2013 -04; adopt an ordinance approving Amendment Application No. 2013 -04 and Specific Development No. 86; adopt a resolution approving Tentative Tract Map No. 2013 -05 (County Map No. 17546) as conditioned; and adopt a resolution approving Site Plan Review No. 2013 -04 as conditioned. by a vote of 6:0 (Gartner absent) for a new 28 single - family residential development at 4226 -4306 West Fifth Street. The Planning Commission made no changes to the recommended conditions of approval outlined in the attached staff report (Exhibit A). 75A -1 AA No. 2013 -04, TTM No. 2013 -05, & SPR No. 2013 -04 March 18, 2014 Page 2 DISCUSSION The approval of this project will allow for the development of 28 new single - family detached residential units. The project applicant, City Ventures, specializes in the re -use of infill properties, such as this one, which has been blighted for many years. On September 23, 2013, the Planning Commission recommended that the City Council adopt an ordinance approving Amendment Application No. 2013 -04 and Specific Development No. 86; adopt a resolution approving Tentative Tract Map No. 2013 -05 (County Map No. 17546) as conditioned; and adopt a resolution approving Site Plan Review No. 2013 -04 as conditioned by a vote of 6:0 (Alderete absent). On November 4, 2013, the City Council adopted an ordinance approving this project on its first reading. However, prior to the second reading for the project, a concern was raised regarding potential adverse environmental effects relating to traffic, noise, air quality and water quality. Subsequently, this project was continued on December 2, 2013 by City Council in order to allow staff the ability to conduct additional analysis on the potential impacts to the environment. Based on staff's research, it was determined that a Negative Declaration (ND) would be prepared for this project. The ND has been completed and no adverse environmental impacts were identified. HOUSING OPPORTUNITY ORDINANCE This project is subject to the City's Housing Opportunity Ordinance (HOO) pursuant to SAMC 41- 1900 et seq. The HOO applies to any residential project where a zone change to allow residential uses, or approval of an overlay zone for residential uses is proposed. The ordinance requires that the project include units affordable to households qualifying under the County's income classifications for Very Low to Moderate incomes. In the case of this project, the applicant must provide 5 for -sale units (15 percent of 28 total units) meeting the affordability guidelines for Moderate income. Prior to issuance of building permits, the applicant is required to submit both an Inclusionary Housing Plan and Inclusionary Housing Agreement to be approved ministerially detailing the manner in which the program will be administered. These documents are subject to the review and approval of the City Attorney's Office, the Planning Division and the Community Development Agency. The Inclusionary Housing Agreement will also be recorded against the property. In addition, a condition of approval will be placed on the Tentative Tract Map that states the Inclusionary Housing Plan and Inclusionary Housing Agreement shall comply with the procedures for establishing eligibility and applicant priority contained within the Housing Element as it may be adopted and amended by the City Council. At a minimum these eligibility criteria shall give priority to tenants /buyers whose household income is on the lower end of the applicable income range and tenants /buyers who are residents of Santa Ana. The provisions of the Inclusionary Housing Plan must be fully implemented prior to any issuance of Certificate of Occupancy. 75A -2 AA No. 2013 -04, TTM No. 2013 -05, & SPR No. 2013 -04 March 18, 2014 Page 3 FISCAL IMPACT There is no fiscal impact associated with this action. Karen Haluza Interim Executive Director Planning and Building Agency AN:rb an \wp51 \p1ancomm\AA13 -04TM 13 -05SPR 13- 04ifthMewhope.031814.cc Exhibit: A. Planning Commission Staff Report B. Household Income Affordability Range Table 75A -3 75A -4 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE; FEBRUARY 24, 2014 TITLE: PUBLIC HEARING — FILED BY URBAN LAND, LLC FOR AMENDMENT APPLICATION NO. 2013-04, TENTATIVE TRACT MAP NO. 2013 -05 (COUNTY MAP NO. 17546) AND SITE PLAN REVIEW NO. 2013-04 TO CHANGE THE ZONING FROM GENERAL AGRICULTURAL (A1) TO SPECIFIC DEVELOMENT NO. 86 AND TO SUBDIVIDE THREE PARCELS INTO 28 CONDOMINIUMS AT 4226 -4306 WEST FIFTH STREET Prepared by Ann Hsin -An Ni Interim Executive Direct,ry RECOMMENDED ACTION Recommend that the City Council: PLANNING COMMISSION SECRETARY APPROVED • As Recommended • As Amended • Set Public Hearing For DENIED ❑ Applicant's Request ❑ Staff Recommendation CONTINUED TO Acting PrIanning,manager Approve and adopt the Negative Declaration, Environmental Review No. 2013 -04. 2. Adopt an ordinance approving Amendment Application No. 2013 -04 and Specific Development No. 86. 3. Adopt a resolution approving Tentative Tract Map No. 2013 -05 (County Map No. 17546) as conditioned. Adopt a resolution approving Site Plan Review No. 2013 -04 as conditioned. Request of Applicant Kim Prijatel of Urban Land, LLC is requesting approval of an amendment application to change the zoning designation of three parcels of land from General Agricultural (Al) to Specific Development No. 86 (SD86), a tentative tract map to allow an air -right subdivision of the site for 28 detached homes, and an approval of the site plan pursuant to the requirement of the SD and for the property located at 4226 through 4306 West Fifth Street. Project Location and Site Description The subject property is approximately 2.66 acres in area and is flat, rectangular in shape, and is occupied by a drive -in dairy and three single family residential structures. The property is located on the south side of Fifth Street between Harbor Boulevard and Newhope Street. EXHIBIT A 75A -5 Amendment Application No. 2013 -04 Tentative Tract Map No. 2013 -05 Site Plan Review No, 2013 -04 February 24, 2014 Page 2 The site is surrounded by a mixture of single - family and multi - family residential to the north, multi- family residential to the east and west, and a mobile home park to the south (Exhibits 1, 2 and 3). Protect Description The proposed project involves the construction of 28 new detached homes and the subdivision of three lots into 28 air -right condominiums. Each residence will be a two -story structure and will contain between 1,510 square feet and 2,115 square feet of living area. A minimum of three bedrooms and a maximum of five bedrooms will be provided. A two -car attached garage will be provided for Plan 1 and Plan 2, and a two -car garage with two tandem spaces in the driveway will be provided for Plan 3. The 11 -units facing Fifth Street will take vehicular access from a rear alley. Additionally, the nine - units located in the middle section of the project will also take access from this alley. The remaining eight -units of the project will have a traditional design and will take access from a private street (Exhibits 4 and 5). Table 1 Fifth and Newhope Pro ect Summa Plan Type Units Proposed Percent of Project Square Footage Plan 1 - 3 bedrooms 10 36% 1,510 Plan 2 - 4 bedrooms 10 36% 1,823 Plan 3 - 4 bedrooms -plus den/opt bdrm 5 8 28% 2,115 Total 28 100% n/a The development will include three primary architectural plans, each with four different architectural vocabularies. In order to reflect the variety of architectural styles present in the City, the applicant proposes varied architectural styles to mimic the existing streetscape found within the City. The architectural styles proposed for this project includes Spanish, Colonial, Cottage and Contemporary. The residences will incorporate enhanced architectural elements on all four sides of the structures. The exterior materials proposed for each architectural style are unique and authentic, including tile roofs, stucco, precast concrete stone and brick veneer, and decorative window surrounds. For example, arched doorways, window trims, shutters and a covered entry porch are features used on the elevations to characterize the Spanish architectural style (Exhibit 6). A lush and decorative landscape palette is proposed for this project. A variety of 24 -inch and 36- inch box trees, including Fruitless Olive, Fern Pine and California Pepper Trees will be provided along the Fifth Street frontage and at the vehicular entry to the project. A combination of trees, 75A -6 Amendment Application No. 2013 -04 Tentative Tract Map No. 2013 -05 Site Plan Review No, 2013 -04 February 24, 2014 Page 3 shrubs and sod with an automatic sprinkler system will be installed within the front, side and rear yard setback area as well as the common areas. The tree species selected within the project provide a colorful palette which includes Ornamental Pear, Little Gem Southern Magnolia and Crepe Myrtle Trees (Exhibit 7). A 4,800 square foot pocket park will be provided for the project. This park will be located directly south of the gated entrance to the development. The park will provide common open space for the development and will incorporate elements such as a central lawn, seating areas and decorative paving. Access to the proposed project will be provided from Fifth Street. A decorative and gated entrance Is proposed for the residents and visitors for this development, with decorative paving, a wrought iron gate, a landscaped median and ornamental landscaping to be provided. The width and turning radius of the internal streets and alleyways are adequate to accommodate Orange County Fire Authority emergency vehicles as well as Waste Management waste collection service trucks. Perimeter block walls are proposed for the project. An eight -foot high decorative block wall with pilasters, including a one to three -foot high retaining wall, will be constructed along the east, west and south property lines. A five and one -half foot high wood fence is proposed for the interior side yards between homes. Housing Opportunity Ordinance The proposed project is subject to the Housing Opportunity Ordinance adopted in November 28, 2011. The developer is required to provide a minimum of 15 percent of the total number of units, equivalent to five units in the project to be sold to moderate or lower- income households. An Inclusionary Housing Agreement will be recorded against the property, approved by the Executive Director of Community Development and the City Attorney prior to the issuance of a building permit. Project Backciround This site was originally developed as an agricultural use known as the Cal -Va Dairy, which consisted of a dairy, processing plant and milk cows in 1960. In 1963, a drive -in dairy store was approved through Variance No. 1846 to complement the dairy operation. Cal -Va Dairy was owned and operated by a family who came to California from Virginia. The retail drive -in dairy was in operation until approximately 2010 when it was converted to a mini market. The mini market, as well as the three houses that comprise this property, were vacated in August 2013. The buildings on the site are currently boarded up. 75A -7 Amendment Application No. 2013 -04 Tentative Tract Map No, 2013 -05 Site Plan Review No. 2013 -04 February 24, 2014 Page 4 On September 23, 2013, the Planning Commission recommended that the City Council adopt an ordinance approving Amendment Application No. 2013 -04 and Specific Development No. 86; adopt a resolution approving Tentative Tract Map No. 2013 -05 (County Map No. 17546) as conditioned; and adopt a resolution approving Site Plan Review No. 2013 -04 as conditioned by a vote of 6:0 (Aiderete absent). On November 4, 2013, the City Council adopted an ordinance approving this project on its first reading. However, prior to the second reading for the project, a concern was raised regarding potential adverse environmental effects relating to traffic, noise, air quality and water quality. Subsequently, this project was continued on December 2, 2013 by City Council in order to allow staff the ability to conduct additional analysis on the potential impacts to the environment. Based on staff s research, it was determined that a Negative Declaration would be prepared for this project. General Plan and Zoning Consistencv The General Plan land use designation for the site is Low Medium Density Residential, which allows residential development up to 11 dwelling units per acre (LMR -11). Properties within the LMR -11 areas are typically characterized by mobile home parks, a mixture of duplexes and single family residences, or small lot subdivisions. The proposed project is consistent with the General Plan land use designation. The zoning for the site is General Agricultural (Al). The Al standards are not applicable to this project as the applicant is seeking to develop pursuant to the density allowed by the LMR -11 land use designation. In order to develop to the LMR -11 density, the applicant must receive approval of a Specific Development (SD) zoning designation. The proposed project has been designed to be consistent with the Specific Development (SD) zoning designation. Project Analvsis Amendment Application Section 41 -593 of the Santa Ana Municipal Code establishes the regulations for the creation of Specific Development (SD) zoning districts. The purpose of the specific development districts is to protect the health, safety and general welfare of the city by encouraging the use of innovative planning concepts and principles, promoting and enhancing the value of properties, and encouraging orderly development for a planned residential project. The applicant is proposing to rezone the subject site to an SD designation and construct a 28 -unit, single - family development. The current Al zoning designation allows single - family dwelling at a density of one dwelling unit per 6,000 square feet of lot area, which is equivalent to seven dwelling units per acre, while the Low Medium Density (LMR -11) land use designation allows 11 dwelling units per acre. 75A -8 Amendment Application No. 2013 -04 Tentative Tract Map No. 2013 -05 Site Plan Review No. 2013 -04 February 24, 2014 Page 5 The Al zoning designation was intended to accommodate agricultural and farming uses prevalent . in the western section of the City, including the Cal -Va Dairy and Egg Ranch in the 1960s. As the area transitioned into a residential community, the Al zoning remained in place for these parcels as well as several adjacent parcels. The zoning for other nearby parcels was changed to residential zones as properties were developed. Since the proposed project is not a traditional single - family project, but an innovative approach to providing infill housing, staff is recommending that the property be rezoned to a specific development (SD) zoning designation. The SD is a tool used to allow for unique and innovative projects that are otherwise consistent with the General Plan land use designation, such as the proposed project, but do not conform to the current zoning standards for the site. The SD will contain development standards for the project, including setbacks, landscaping and parking, while allowing development of an innovative project. Approval of the SD will be consistent with the General Plan land use designation of Low Medium Density Residential at 11 dwelling units per acre since the proposed project will be built at a gross density of 10.5 dwelling units per acre (Exhibit 8). Tentative Tract Map Tentative tract map requests are governed by Sections 34 -119 through 34 -318 of the SAMC. Tentative tract map requests may be granted when it can be shown that the following can be established. • The proposed project, as conditioned, and its design and improvements are consistent with the LMR land use designation of the General Plan and are otherwise consistent with all other elements of the General Plan and any applicable specific plans. • The proposed project, as conditioned, conforms to all applicable requirements of the zoning and subdivision codes as well as other applicable City ordinances. • The project site is physically suitable for the type and density of the proposed project. • The design and improvements of the proposed project will not cause substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat. • The design or improvements of the proposed project will not cause serious public health problems. • The design or improvements of the proposed project will not conflict with easements necessary for public access through or use of the property within the proposed project. 75A -9 Amendment Application No. 2013 -04 Tentative Tract Map No. 2013 -05 Site Plan Review No. 2013 -04 February 24, 2014 Page 6 If these findings can be made, then it is appropriate to grant the tentative tract map. Conversely; the inability to make these findings would result in a denial. Using this information, staff has prepared the following analysis, which forms the basis for the recommendation contained in this report. The applicant is requesting approval of a tentative tract map to allow the subdivision of the 2.66 -acre parcel into 28 air -right condominiums (Exhibit 9). In order to subdivide the parcel, the project needs to comply with all applicable development standards for a tract map. Based on a review of the tentative map, the project has been designed to be in compliance with the applicable development standards found in Chapters 34 (Subdivision) and 41 (Zoning) of the Santa Ana Municipal Code and the provisions of the proposed Specific Development No. 86 zoning district. Additionally, the internal street and alleyways are designed to be private and will be maintained by the Homeowner Association. The width and turning radius of the internal street and alleyways are adequate to accommodate Orange County Fire Authority emergency vehicles as well as Waste Management waste collection service vehicles. The proposed subdivision, Tentative Tract Map No. 2013 -05, will be consistent with the proposed LMR land use designation and density prescribed and all other elements of the General Plan. Policy No. 1,4 promotes the maintenance and fostering of a variety of residential land uses in the City. The proposed subdivision conforms to the minimum condominium requirements, as well as meets the letter and intent of the State of California Subdivision Map Act Provisions. Tentative Tract Map No. 2013 -05 is in keeping with the site plan review for the project as well as Chapters 34 and 41 of the Santa Ana Municipal Code, Covenants, Conditions and Restrictions (CC &Rs) are required for the project, which need to be approved by the City prior to the recordation of the final map, The proposed site is physically suitable for the detached development as proposed since the property will be located within a Specific Development zoning district (SD86) and has a General Plan land use designation of Low Medium Density Residential at 11 dwelling units per acre (LMR11). The site is surrounded by a combination of single - family and multi - family residential uses and is determined to have the capability to support the type and density of the project. The project site is located in an urbanized area and was previously developed with a drive -in dairy and three single- family residential structures, and there are no known fish or wildlife populations existing on the project site. Therefore, the proposed subdivision will not cause any substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat. 75A -10 Amendment Application No. 2013 -04• Tentative Tract Map No. 2013 -05 Site Plan Review No. 2013 -04 February 24, 2014 Page 7 The proposed subdivision is not anticipated to have any detrimental effects upon the general public. The design and improvements associated with this project have been prepared to comply with minimum City standards, The internal street and alleyways are designed to be private and will be maintained by the Homeowner Association. The width and turning radius of the internal street and alleyways are adequate to accommodate Orange County Fire Authority emergency vehicles as well as Waste Management waste collection services. Additionally, each residence will have sewer, water and the necessary infrastructure improvements as conditioned in Development Project Review No. 2013 -02. The design or improvements of the proposed project will not create a conflict with easements necessary for public access through or use of the property within the proposed project since there is no easement within this property. Public access will be allowed to the site through the gated entrance with homeowner or homeowner association's authorization. Site Plan Aaoroval Section 41- 593.5(c) of the Santa Ana Municipal Code requires the Planning Commission to review all plans within a Specific Development zoning district to ensure the project is in conformance with the approved SD. The review also ensures that the buildings, structures and grounds are in keeping with the neighborhood and will not be detrimental to the development of the Specific Development area. After analyzing the project, it was determined that the 28 -unit detached home project will be in compliance with all applicable development standards within the Specific Development No. 86 zoning document.. Additionally, the proposed project is in keeping with the surrounding neighborhood and will improve the quality and desirability of the housing stock in the City. Finally, the project has been determined to be in compliance with applicable parking, landscaping and architectural provisions governing the project. Public Notification The project site is located within the boundaries of the Riverview West Neighborhood Association which was notified of this project. Staff gave a presentation on the project at their neighborhood association meeting on July 16, 2013 at the Lake Park Mobile Home Park. At that meeting, the Association expressed support for the proposed project. In addition, a community meeting was held on January 28, 2013 at Hazard Elementary School in accordance with the Sunshine Ordinance (Exhibit 10). The pro1ect site was posted with a notice advertising this public hearing, a notice was published in the Orange County Reporter and mailed notices were sent to all property owners within 500 feet of the project site. At the time of this printing, no correspondence, either written or electronic, had been received from any members of the public. 75A -11 Amendment Application No. 2013 -04 Tentative Tract Map No. 2013 -05 Site Plan Review No, 2013 -04 February 24, 2014 Page 8 CEQA Compliance As part of the City's permitting process, the proposed project is required to undergo an environmental review in accordance with the California Environmental Quality Act (CEQA). In accordance with CEQA, the recommended actions have been reviewed through a Negative Declaration (ND), Environmental Review No. 2013 -04. Section 15063 of the State CEQA Guidelines and Sections 15070 through 15075 of Article 6 guide the process for the preparation of a negative declaration (Exhibit 11). This ND, as required by CEQA, contains 1) a project description; 2) a description of the environmental setting, potential environmental impacts, and consistency with plans and policies; and 3) names of preparers. The scope of the ND evaluates the proposed project's effects on the following resource topics: • aesthetics, • agriculture and forestry resources, • air quality, • biological resources, • cultural resources, • geology /soils, • greenhouse gas emissions, • hazards & hazardous materials, • hydrology /water quality, • land use /planning, • mineral resources, • noise, • population /housing, • public services, • recreation, • transportation /traffic, and • utilities /service systems. 75A -12 Amendment Application No. 2013 -04 Tentative Tract Map No. 2013 -05 Site Plan Review No. 2013 -04 February 24, 2014 Page 9 The City prepared a draft ND and posted the Notice of Intent (NOI) to adopt an ND at the Orange County Clerk's office; the NOI was published in the Orange County Register on February 3, 2014. The City circulated the draft ND for a 20 -day public review between February 3 and February 24, 2014. The draft ND was available for public review at the Santa Ana City Hall, the City of Santa Ana Main Library, and on the City's website. As a result of the environmental analysis, no potential environmental impacts were identified for this project. All of the resource topics identified in the negative declaration were found to result in either no impact or would result in a less than significant impact. Therefore, no mitigation measures are required. This IS /ND is intended to provide a forum to air and address comments pertaining to the analysis contained in the draft IS /ND and to provide an opportunity for clarification, corrections, or minor revisions to the draft IS /ND as needed. Pursuant to Section 15088 of the State CEQA Guidelines, the City, as the lead agency for the project, will review all comments received on the draft IS /ND. As of the date of printing of the staff report, no comments were received. Conclusion The proposed project will enhance the quality of the housing stock through the development of a well- designed detached residential project and will provide a positive reinforcement of the City's image within the area. This project will also provide a direct benefit to the community by removing the existing visual blight and provide additional housing opportunities in the City. The proposed project will achieve multiple goals and policies of the City's General Plan by developing a detached residential project that provides a variety of residential land uses in the city. Based on the analysis provided within this report, staff recommends that the Planning Commission recommend that the City Council approve Amendment Application No. 2013 -04, Tentative Tract Map No. 2013 -05 as conditioned and Site Plan Review No. 2013 -04 as conditioned. Ann Ni Associate Planner ANjm anlwp511plancommM 13 -04TM 13- 05SPR13- 04FIfth &Newhope.022414.pc 75A -13 Amendment Application No. 2013 -04 Tentative Tract Map No. 2013 -05 Site Plan Review No. 2013 -04 February 24, 2014 Page 10 Attachments: Exhibit 1 — Vicinity Map Exhibit 2 — Land Use Map Exhibit 3 —Site Photo Exhibit 4 — Site Plan Exhibit 5 — Floor Plans Exhibit 6 — Elevations Exhibit 7 — Landscaping Plans Exhibit 8 — Specific Development Zoning Document Exhibit 9 — Tentative Tract Map Exhibit 10 — Community Meeting Minutes Exhibit 11 -- Negative Declaration 75A -14 WESTMINSTER. (SEVENTEENTH ST.) AVE, ,,,�� 82 1 sP -z n g RI III RRI NII __.___ _ 1 SP -2 s siwx� RI Rlrsw p R Rl msMnrm " s R ? Al ,. It . ,�xi II ii Ai NI ^ RI ' .wwnacsmc P1 RI r •Bt .. PI ` SP-2 q/ • 111 z Ri 2 p OR NrA PI Y RI sr R R1 I s ft1 pl Rt RI RI 5 Rl g RI [ RI Bl P1 �nl q R ._ HAZARD AV. li P2 ry =` Ilt � i x Iuilxzrnp 2�i M O i II I 111 1- t—,I ft7 n4 h R3 I�SD ^t 1N RI q RI RI o z d R7 Sp- R2. "z. 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A G E N G Y EXHIBIT 1 VICINITY MAP 75A -15 AA 2013 -04 /TM 2013 -5 _ FIFTH & NEWHOPE DETACHED HOMES ��II 4226 -4306 WEST FIFTH STREET A,`' P L A N N I N G A N D 8 U I L-0 1 N G A -GE N C Y LAND USE MAP EXHIBIT 2 75A -16 (¢tf FA t� g i> dtf t �Zr (t _ ipf MIL r� i r t i t 3 t J 4t` €1 ' ID fi EXHIBIT 4 75AA18 z�al` a � .y i I : R4�1� 0 raj o� T V C O a N N :G O 7 w w U) N S r N w N W 0 z Q W R Q S i w z N Q � � o � Q d`v Z a> Q �> N �U rz- c e ? xO�zC 9 � � ^_ •- .v° °— mr° 2 i o u z ;��fl� § �1 a a pq4 ° o � g � � a�ebi U i d E p x D A O D GG em SegvM AA a0U �- �tur5: D�40m Qi °p0 II ¢ w uWmc9Zn t/l I I Q —_ w 0. yDD ri_5 n 4 ce i V) 9i U 75A' u w iw Q ? C� yo u J � c j a w x 0o sel bD EXHIBIT 5 Page 1 of 3 75A -20 i� i� C 0 Oc 7 Vim¢ �u a�U m F � b F Y= 3„ r x[ T' N RLVj N C ca 0 a c o _D p d LL w w m r- fn r LO W d 2 d w 6 ya_ S W w H ZQ Z U Q a� d � � r ¢ v z 6> QW 5 L 1 -tgx=f� 1 P C^ O r`£'U �c4 {nmU id V� �I e¢ P 3 e . i� rv� 9* q u O as C p O o �- LL h W W H S r IC) r N 'yW i Q Z 6 w W O x 3 W z Y W H y Q 4 � U d g; 4� 2 O> r H �U � „ n 3 Q a a } � x z�4 0 �: �' rs r O TI .lam r � � • U _ a0 'ICI b 0 W Page 3 of 3 75A -22 W� C� ohm o< �nm�U M b �a C o a o aW H W W W H T r LO h y W Z Q W d s 3 W z en Q z `ug Zz ed Z o> V �U 0 m w 4 a is! S C f J1 f F J i N �1 i' i" 3e �e F; nR Y Zi C e 0>>� cw ao Ll H W W K F k- Ln H N W z z w a O x 3 Z en ¢ < � U d3 e� C 2 0> V5 H U -? 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VY u�i U * Imo! !�| ��J \ 9 � �I I E) {�( f | » {\ \ r !!\ ) ��® SIJR:a I§ ƒ{ / e( e7_57) \� =g \ LO ) \ } \ \) 0 E IE t 3 El 1 7SPX-i ! !# � §\ { S\ e: R \ ! )> }� !4 \) e\ \� z§ ) ( \ # !! ) }f 3 !; ga� O� $$w Rg�g �S ® � A 3 7 3 J p M F. g 1 q P W� 9S s= is 3° G C O IL N LL 0 0 y C O J U a E a� s 0 `m w W h h h N W d i Q W a a z W z a z< Q Um ds 4 ry < =c m I Im \� \{| \} ! .), �| � 333939 I S u C: '6 E (D ` � ƒ� / \� / \ � �� .. ! LO 7 SA,*34 u C: '6 E (D LO �� \ 6 < Z WW J F 3 a r r gE� gg al L Sv r✓. tii D N< A Jei 2K$ 43 �'�Xx {{ Lei s ryry m s I' EI !j 6oi. 6 E. ?SMI A. ? I :C sot O O o o o °- m 75Ae4 a - P. 7 3= i; £; ai PJ.a M1r U c O o� c c a U 4 c N L U w z t/1 x N `yW i Z a W b 3 W z w tP) a � a e c � 67 6 ?' 47 � U Specific Development District (SD -86) TABLE OF CONTENTS SECTION 1, Applicability of Ordinance SECTION 2. Purpose SECTION 3. Permitted Uses SECTION 4. Conditionally Permitted Uses SECTION 5, Development Standards 1. Building Height 2. Front Yard 3. Side Yard 4. Rear Yard 5. Parking 6, Walls and Fences SECTION 6. Development Standards for Common Areas SECTION 7. Building Separation SECTION 8. Landscape Standards 1. Front yard 2. Project perimeter walls 1 Irrigation systems 4. Screening 5. Maintenance EXHIBIT 8 75A -36 SPECIFIC DEVELOPMENT PLAN NO. 86 FIFTH AND NEWHOPE DETACHED HOMES SECTION 1 APPLICABILITY OF ORDINANCE The Specific Development Zoning District No. 86 for Fifth and Newhope Detached Homes is authorized by Chapter 41, Division 26 Section 41 -593 at seq. of the Santa Ana Municipal Code. SD No. 86 contains the specific standards and regulations contained in the R1 and /or R2 residential districts, as herein amended, for the purpose of establishing land use regulations and standards. All other applicable chapters, articles, and sections of the Santa Ana Municipal Code are in effect unless superseded by regulations contained in this ordinance. SECTION 2 PURPOSE The Specific Development Plan No. 86 for Fifth and Newhope Detached Homes consists of standards and regulations established for the purpose of protecting the health, safety, and general welfare of the people of the City of Santa Ana by promoting and enhancing the value of property and encouraging the orderly development for the planned residential development. SECTION 3 PERMITTED USES The following uses are permitted in the SD -86 district: 1. One- family dwellings. 2. One temporary real estate office devoted to the sale of real estate in the tract in which it is located. 3. Child care facilities providing care to not more than eight (8) children. SECTION 4 CONDITIONALLY PERMITTED USES The following uses are permitted upon the approval of a Conditional Use Permit in accordance with the Santa Ana Municipal Code: 1. Childcare facilities caring for more than eight (8), but no more than fourteen (14) children. 75A -37 SECTION 5 DEVELOPMENT STANDARDS 1, Building Heii ht No primary structure shall exceed 27 feet nor two stories in height, as measured from the lowest adjacent grade of the structure to the top of the structure. 2. Front Yard There shall be a front yard of not less than ten (10) feet from the street. Porches may encroach into the front yard a maximum of five (5) feet. 3. Side Yard Each side yard shall be not less than ten (10) feet. 4. Rear Yard There shall be a rear yard of not less than seven (7) feet. Such rear yard may be reduced to not less than five (5) feet for open patio covers for Unit 21 thru 28, 5. Parking The minimum off- street parking requirements for Units 1 through 20 are two parking spaces per unit within an enclosed garage. Units 21 through 28 are two parking spaces in an enclosed garage plus two tandem spaces in a driveway. In addition to the minimum requirements, a total of 15 guest parking spaces shall be provided. 6. Walls and Fences Walls and fences shall be installed pursuant to Section 41 -610 of the SAMC, except that walls and fences shall be constructed of a decorative block and /or split face block or equivalent and shall have decorative pilasters and caps. Front yard fences shall not exceed thirty (30) inches in height. Front yard fence material and design shall complement the architectural style and shall be installed by the developer and maintained by the Home Owner Association. SECTION 6 DEVELOPMENT STANDARDS FOR COMMON AREAS Homes in the SD No. 86 district shall comply with the following standards: 1. All improvements to the common open space shall be fully implemented prior to Building Division final and release of utilities for the entire development. 75A -38 2. The passive recreation area /pocket park between Unit 25 and 26 shall be a minimum of 4,876 square feet in size and shall incorporate tables, seating and a shade structure. The color and appearance of the furniture products and other elements must complement the overall architecture design and material. Benches and seating shall be made of a durable material such as concrete or painted iron and be designed to minimize effects from vandalism, skateboarding and weather. 3. Front and street oriented side yards shall be landscaped with the exception of approved driveways and sidewalks. 4, Driveways shall lead to a garage and not exceed the width of such garage. There shall be no parking of vehicles in the front yard except in such driveways. SECTION 7 BUILDING SEPARATION 1. The building separation between structures shall be at least ten (10) feet for Units 1 through 20. 2. The building separation between structures shall be at least eight (8) feet for Units 21 through 28. SECTION 8 LANDSCAPE STANDARDS In the SD No. 86 district; all yards shall be landscaped, Each residential unit shall meet the following minimum requirements: 1. Front yard a. One 24 -inch box canopy trees per unit. b. One additional tree species for up to five dwelling units and an additional tree species for each increment of five units. c. Six five - gallon size shrubs and 10 one - gallon size herbaceous perennials /shrubs as a foundation planting. d. Turf or acceptable dry climate ground cover: i. Turf shall be drought tolerant variety and planted as sod or hydroseed. ii. Ground cover shall be well - rooted cuttings from flats and planted at appropriate spacing for that particular plant material. 4 75A -39 2. Project perimeter walls a, Flowering vines shall be provided and secured to a decorative masonry wall material. b. The vines shall be five - gallon size and be planted at a maximum 20 -foot interval. They shall be secured to the walls with eye hooks and wire. c. Espaliered shrubs, fruit trees, or other ornamental trees may be substituted for the flowering vines. 3. Irrigation systems a. A pop -up sprinkler type irrigation system shall be provided for all yards for each residential unit. b. The use of "xeriphytic" or dry climate type plant materials is encouraged. Irrigation systems may require special fittings to properly water dry climate plantings. 4. Screening a. All meters shall be appropriately screened from public view with trellis work and vines or a hedge type shrub or they shall be incorporated into the residential structure. b. Any enclosed structure for utilities must not encroach into any required setback. 5. Maintenance a, All plant material shall be maintained per Section 41 -609 of the Santa Ana Municipal Code, AWSpedflo DeVelopmentMSD No.86 5 75A -40 I } R e A I } } } y } } i s u /E� 99pp (fig � €€ yy R1R @k�.R9.aauw6xxa E$ U I P � icy ss�Ba6aC�eelseneR9<3 iiR ������!� Dj . S tl0 k 4 s It 9 qR a Jill �� R6 e 6 ggdg�p P Eb F� 5 A 'AtlS � ?A�id4 a Y ?tl A pp tl Bg ?� F� R � dk 9 F�, 9 0 8 finvi im A. e�� i aaMMMbryrylel�! � -��4 1���� � 1 Y.oGG r, Dj . S tl0 k 4 s It 9 qR a Jill �� R6 e 6 ggdg�p P Eb F� 5 A 'AtlS � ?A�id4 a Y ?tl A pp tl Bg ?� F� R � dk 9 F�, 9 0 8 1/28/13 Note from Community Meeting for Proposed Project on 5`h Street In Santa Ana Q: What are the prices? A: To be determined. Q: How many entrances /exits? A: One, Q: What is the setback to the south property line? A: 10 feet, Q: What are the widths of the private streets? A; 34 feet, Q: Is there visitor parking? A: Yes. 15 guest spaces on the street and 18 in driveways. Q: What is the "green area "? A: Passive open space area, Q: Will there be perimeter walls? A: Yes. Block walls and low fence. Q: Will there be low inccme units, A: 15% of the homes wil' be for moderate income buyers (5 of the 29). Q: Is this project following the "normal process "? A: Yes. The zoning needs to be updated to match the general plan. Q: Will street parking remain on 5'h Street? There is a lack of parking in the area. A: Yes. More parking will be available as there will be fewer curb cuts into the property. Q: How will the drainage work? A: Drainage plan will meet City requirements. EXHIBIT 90 75Ag415 Q: Where does the "street water" go? A: We do not have the civil plans yet. Q: Issues with street flooding when it rains. Water comes from Harbor down P to Newland. There is only one catch basin in the area. There have been broken pipes in the area. A: The project will contribute less water to th s issue because there will be less paved area. Q: Will there be fire hydrants? A: As required by the fire department. Q: What is the zoning? A: Currently agriculture. Proposal is to change to "Specific Development Q: What is the minimum lot size? A: The "Specific Development" designation does not have a minimum lot standard. The density is designated by the General Plan (Medium Density). However, the lots will range from 3,500 to 4,000 square feet. Q: Will the homes be single family? A: The homes are single family detached. However, the project is a 1 -lot subdivision with condo map. This is a typical arrangement for infill projects in Orange County. Q: Is there 5 feet of separate between buildings? A: Yes. Q: Will the materials to be used in the construction of the project be purchased from businesses in the City of Santa Ana, A: There is no requirement for that. Project will be bid out to multiple subs, Q: Is Harbor to the east of the project? A: Yes. Q: Will there be a pool? A: No. .ft =f43 Q: Will the crossing guard location change? A: The project should not change this, However, that is up to the School District, Q: Can the road handle the weight of the construction trucks? A: The City will review that issue. Q: Will the community have CC &Rs? A: Yes, Q: Concerned with landscaping issues. Want to prohibit inappropriate trees like fichus. A: We can restrict trees that are viewed as inappropriate. Please Vlow up with an email to discuss this issue further. Q: Is the guest parking parallel? A: Yes. Q: What is the number of bedrooms per home? A: 3. Q: The only hiccup in this project is parking. 9 guest spots for the 21 homes (without garages) is too thin; A: Your comment is noted. Q: I am not against your project, I think It will be a fine asset and good improvement to the community. Q: Concern with parking and how the street will be Impacted by construction, A: Your comment is notes. Q: Is the purchase of the property contingent on receiving entitlements? A: Yes, Q: How will lighting be handled? A: There will be a street lighting plan per City standards. Q: Will there be a homeowners association? A: Yes. 75'A -44 Q: Has fire approved this plan? A: Fine is reviewing the plan. Q: How will trash be handled? A: There will be individual trash cans. Need to work out who the trash hauler will be, Q: Does the entrance haven fountain? A: No. Enhanced pavers and a gate. Q: Will there be a security guard? A: No. lust a kiosk. Q: What is the timing of the construction? A: 12 to 18 months. Q: What will be the hours of construction? Can the finish time be limited in the winter? A: Whatever the City allows. 7:00 am to 7 :00 pm is typical, Q: Will the streets be cleaned during construction? A: Yes. Streets will be cleaned as required by the City, 716X245 m c m d c 7 E U m c e C A :n Q1 L .0 Ln 3 co N O N O mct +4 m c C tl/ CL 0 v y a 0 v N CL 0 L a C1 ° o o0 p u M VI c6 L E w � m y N W N N to = G 759 =4,G o -o is (� 7 S J `c' W c r ` C� C �1 l a� t c� 759 =4,G The complete Initial Study and Negative Declaration Document is available at the Planning Division public counter and on the City's webpage at http: / /www.santa- ana.org /pba /planning /5thand NewhopeDevelopment.asp EXHIBIT 11 75A -47 75A -48 W t9 Z 9 O LL O } F Z O U N Q O Z F W m O U Z_ M O N 75A -49 m F m 2 X w 0 0 0 0 0 > >> 0 0 0 0 0 0 0 0 .0..0 .0 .0 .0 .0 m m m m m I m m m a a a a a • a a a c c c c c • c c c m m m m m m m m O O o o o O O O LM O O LM LM LM 00 to CPT . NI- N d'M T O OD • MM d' Or NNM P W d) T T T r r ffl 613 EH U) Ui 613 613-61). O OOO LOM ' 0 0000 LMr 000(00"P PM • NPN i Ci TO)M M M d O r N N T P CO O) r T r r FR 11 I 1 O 0000000 LM ' 0)LO MON V I. MT0)I�M000 FR fR 613 60-61) Ui UT Ui OOOOOOO° 0 LM LM LM LM O U) 00M0 N''q LO r, • MT dr-: C6 LMO 61ae36)69- 1 1 1 1 6»6»61at» 1 I 1 0 0 0 o O O O I O . LM LM MM LM LO o LMO P LM Mr 0M11 t0 M M C6c 00 N 0) M M M m Lf)LO M LMM U3 64 to to U3 U) U} Eff 0 0 0 0 0 0 0 0 LM LM M LM 0 0 0 0 P LM M T O O P 0 M00M W NLMC M M M V V LO LM 0 0 U) 1 U} to 09 UT 69 tH ER • 00000000 1 I 1 1 1 1 1 0 LM 0 O LM LM LM LM N TO O)N MM W T O MN TM MM N N NM M M U} tR 61> ER U} U) aaaaaaaa rNMel'LA CO POD 75A -49 m F m 2 X w 75A -50 ORDINANCE NO. NS- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA REZONING THE PROPERTY LOCATED AT 4226 -4306 WEST FIFTH STREET FROM GENERAL AGRICULTURAL (Al) TO SPECIFIC DEVELOPMENT NO. 86 (SD -86) (AA NO. 2013 -04) AND ADOPTING SPECIFIC DEVELOPMENT NO. 86 (SD -86) FOR SAID PROPERTY THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana does hereby find, determine and declare as follows: A. Amendment Application No. 2013 -04 has been filed with the City of Santa Ana to change the zoning district designation of certain real property located at 4226 -4306 West Fifth Street from General Agricultural (Al) to Specific Development No. 86 (SD -86). The Specific Development No. 86 zoning district (SD -86) would allow a 28 -unit, single - family development built at a gross density of 10.5 dwelling units per acre. B. The Planning Commission of the City of Santa Ana held a duly noticed public hearing on September 23, 2013, on Amendment Application No. 2013 -04 and decided to recommend that the City Council adopt an ordinance approving Amendment Application No. 2013 -04, which is consistent with the General Plan. C. On November 4, 2013, the City Council approved an ordinance for this project on its first reading. However, on December 2, 2013, prior to the second reading for the project, the project was continued by the City Council in order to allow staff the ability to conduct additional analysis on the potential impacts to the environment. D. After further CEQA review, the project was returned to the Planning Commission for another duly noticed public hearing on February 24, 2014, on Amendment Application No. 2013 -04 and the Planning Commission again decided to recommend that the City Council adopt an ordinance approving Amendment Application No. 2013 -04, which is consistent with the General Plan. E. This Council, prior to taking action on this ordinance, held another duly noticed public hearing on March 18, 2014. 75A -51 F. The City Council also adopts as findings all facts presented in the Request for Council Action dated March 18, 2014 accompanying this matter. G. For these reasons, and each of them, Amendment Application No. 2013 -04 is hereby found and determined to be consistent with the General Plan of the City of Santa Ana and otherwise justified by the public necessity, convenience, and general welfare. Section 2. In accordance with the California Environmental Quality Act, the recommended actions have been reviewed through a Negative Declaration (ND), Environmental Review No. 2013 -04. Section 15063 of the State CEQA Guidelines and Sections 15070 through 15075 of Article 6 guide the process for the preparation of a negative declaration. As a result of the environmental analysis, no potential environmental impacts were identified for this project. All of the resource topics identified in the negative declaration were found to result in either no impact or would result in a less than significant impact. Therefore, no mitigation measures are required. Pursuant to Title XIV, California Code of Regulations ( "CCR ") §735.5(c)(1), the City Council has determined that, after considering the record as a whole, there is no evidence that the proposed project will have the potential for any adverse effect on wildlife resources or the ecological habitat upon which wildlife resources depend. The proposed project exists in an urban environment characterized by paved concrete, roadways, surrounding buildings and human activity. Therefore, pursuant to Fish and Game Code §711.2 and Title XIV, CCR §735.5(a)(3), the payment of Fish and Game Department filing fees is not required in conjunction with this project. Section 3. The real property located at 4226 -4306 West Fifth Street in Santa Ana is hereby reclassified from General Agricultural (Al) to Specific Development No. 86 (SD -86). An amended Sectional District Map, showing the above described change in use district designation, is hereby approved and attached hereto as Exhibit "A" and incorporated by this reference as though fully set forth herein. Section 4. Specific Development No. 86 (SD -86), attached hereto as Exhibit "B" and incorporated by this reference as though fully set forth herein, is approved and adopted in its entirety. Section 5. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection; sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. 75A -52 ADOPTED this _ day of , 2014. Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho City Attorney m Ryan O. Hodge Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Ordinance No. NS- to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 75A -53 75A -54 TOAT55 REVISEDSHNI 1 1 AV WESTMINSTER AV _WESTMINSTER P. ILE OEM R] J D U i m Igxsr - z RI a J N 1 m U O - R3 $ W Rl a RI _ goes - .svrtnnv- PRRAA[`RA - tF vxRins e '�� RD Rf g su AA Rf RI S �� R1 A'M w Ri R1 : r wANmGce Av. H°AMMIVce RI Z m g. :::; RI � PH _EJ m g R1 r` y R1 v R1 [xx nv Rf w SKNoraN Av R1 W v Rt 9 E O0.O IS ai 1(1~/fI S w Vn A R1 o t �Rf NAW >LL ° RI i O Cm Gy Mngrcrt g Rt sAA w R ELDA µ ) Onx= 5 5 FlE➢ Y Ri. RI U R1 Rf r FAraP nrxsr Rl RIL . f1aL uxq AV .. ruxEAV Rt R1 ... r TIMM 9 ¢ n oR1 Rt siE' ESES sr c £ Rt R1 i Rf RtR -. •. ¢ — c0¢04v E H-0 AN x p .■i R2 11111 _ moo Av Rt S R2 . o nxoxw AV § R3 11 /11 Rf ¢ y' RI li — 11111 R2 B IIIS11, ■ 6 x IE.TAvVA.,AI m151 5 LL R1 R1 ex Rt 'n x5 _+ RD RD w Rt SILVER OX a Rt Aj k �SILVER x z sluxeaa L RD Rt o a de R1 RI ETxsT 51N Sr 6Tx5T SIXSi - ■ aMST .R2 R2 R2 R1 All 'I® Al R1 N _ a1N ST RE R2I ft2 R1 R2 ' — N Al pf a At J sg05T F1' :R15 „ 4 0 S D £ xD tSr J . ' a i 1STST _ 15T ST SECTIONAL DISTRICT MAP PS -10 SCALFINFRET • if L611 ADOPTED BY THE SANTAANA CITY COUNCIL JULY 20.1959 BY ORDINANCE NS -381 66 R°NTA°F $D03 MINIMVM _.AREA AT GENERAL AGRICULTURAL CSM SOUTH MAIN STREET COMMERCIAL DISTRICT PO PUNNED DEVELOPMENT -B PARKING MODIFICATION -F FLOORAREARATIO END PLANNED RESIDENTIAL DEVELOPMENT McRI5T1EQiiJx�llaFY. Cl COMMUNITY COMMERCIAL GC GOVERNMENT CENTER RI SINGLE - FAMILY RESIDENCE osrza C1MD COMMUNITY COMMERCIAL- MUSEUM DISTRICT Ml UGHTINDUSTRIAL R2 TWO - FAMILY RESIDENCE Asnnl+�a�El °rrcamL . IIRPEW®'Rt6''AI C2 GENERAL COMMERCIAL M2 HEAVY INDUSTRIAL RS MULTIPLE- FAMILY RESIDENCE C3 CENTRAL BUSINESS NO MILITARY OPERATIONS R4 SUBURBAN APARTMENT w °neL�Ilmw- °sracr muw6wq C3-A CENTRAL BUSINESS- ARTISTS'VILLAGE O OPEN SPACE RE RESIDENTIAL ESTATE sgem G PLANNED SHOPPING CENTER -OZ OVERLAYZONE SO SPECIFIC DEVELOPMENT R. IXfRIgMIIP Tqi C5 ARTERIAL COMMERCIAL P PROFESSIONAL SP SPECIFIC PLAN Nnawa MlpPoAfdGV OR COMMERCIAL RESIDENTIAL POD PLANNED COMMUNITY DEVELOPMENT Dvceoece M5v9200/ flES.IAA.IAN%.XO. aRD.r RES.xe. AnaRTEDwre gESIA.A.IAX.%.NO. P A 5 AA.BAS AA.B55 AA.0 AAb AA.. A IW9 AA1tl A B A.1. AA 1.1 AA W.AA O0U N ORDIRESXO. N.D. NS 1. X S -IIB1 51101 N 055 XS-Ntl XS -I &i III,. X61850 H -IBBt N8tg19 X 93101 X R60011 N AD W1EO MlE 31id1 II 3185 xfIJS 10 -1581 5 -18& B. 3-1880 bide Ao3050 flE3.IAA.IAN%.X0. 5 5Y-0 SBW M08 1.H PA.III AA.1W AA.118 AA195 A A A41093 AAB03 AA.033 A Agtl ... OI IRES.NO. H0d06 N850B 5 NB�I1ID X -11A X XS -1500 XS -1515 H � ]DCVIEDDATE 5658 3180 1611.0 3881 ,"AR SECTICMAO&L DISTRICT A • PREPARED BY THE PLANNING DIVISION - CITY OF SANTA ANA, CALIFORNIA TOAT55 REVISEDSHNI 1 1 75A -56 Specific Development District (SD -86) TABLE OF CONTENTS SECTION 1. Applicability of Ordinance SECTION 2. Purpose SECTION 3. Permitted Uses SECTION 4. Conditionally Permitted Uses SECTION 5. Development Standards 1. Building Height 2. Front Yard 3. Side Yard 4. Rear Yard 5. Parking 6. Walls and Fences SECTION 6. Development Standards for Common Areas SECTION 7. Building Separation SECTION 8. Landscape Standards 1. Front yard 2. Project perimeter walls 3. Irrigation systems 4. Screening 5. Maintenance Exhibit "B" 75A -57 SPECIFIC DEVELOPMENT PLAN NO. 86 FIFTH AND NEWHOPE DETACHED HOMES SECTION 1 APPLICABILITY OF ORDINANCE The Specific Development Zoning District No. 86 for Fifth and Newhope Detached Homes is authorized by Chapter 41, Division 26 Section 41 -593 et seq. of the Santa Ana Municipal Code. SD No. 86 contains the specific standards and regulations contained in the R1 and /or R2 residential districts, as herein amended, for the purpose of establishing land use regulations and standards. All other applicable chapters, articles, and sections of the Santa Ana Municipal Code are in effect unless superseded by regulations contained in this ordinance. SECTION 2 PURPOSE The Specific Development Plan No. 86 for Fifth and Newhope Detached Homes consists of standards and regulations established for the purpose of protecting the health, safety, and general welfare of the people of the City of Santa Ana by promoting and enhancing the value of property and encouraging the orderly development for the planned residential development. SECTION 3 PERMITTED USES The following uses are permitted in the SD -86 district: 1. One - family dwellings. 2. One temporary real estate office devoted to the sale of real estate in the tract in which it is located. 3. Child care facilities providing care to not more than eight (8) children. SECTION 4 CONDITIONALLY PERMITTED USES The following uses are permitted upon the approval of a Conditional Use Permit in accordance with the Santa Ana Municipal Code: 1. Childcare facilities caring for more than eight (8), but no more than fourteen (14) children. 2 75A -58 SECTION 5 DEVELOPMENT STANDARDS 1. Building Height No primary structure shall exceed 27 feet nor two stories in height, as measured from the lowest adjacent grade of the structure to the top of the structure. 2. Front Yard There shall be a front yard of not less than ten (10) feet from the street. Porches may encroach into the front yard a maximum of five (5) feet. 3. Side Yard Each side yard shall be not less than ten (10) feet. 4. Rear Yard There shall be a rear yard of not less than seven (7) feet. Such rear yard may be reduced to not less than five (5) feet for open patio covers for Unit 21 thru 28. 5. Parking The minimum off - street parking requirements for Units 1 through 20 are two parking spaces per unit within an enclosed garage. Units 21 through 28 are two parking spaces in an enclosed garage plus two tandem spaces in a driveway. In addition to the minimum requirements, a total of 15 guest parking spaces shall be provided. 6. Walls and Fences Walls and fences shall be installed pursuant to Section 41 -610 of the SAMC, except that walls and fences shall be constructed of a decorative block and /or split face block or equivalent and shall have decorative pilasters and caps. Front yard fences shall not exceed thirty (30) inches in height. Front yard fence material and design shall complement the architectural style and shall be installed by the developer and maintained by the Home Owner Association. SECTION 6 DEVELOPMENT STANDARDS FOR COMMON AREAS Homes in the SD No. 86 district shall comply with the following standards: 1. All improvements to the common open space shall be fully implemented prior to Building Division final and release of utilities for the entire development. 75A -59 2. The passive recreation area /pocket park between Unit 25 and 26 shall be a minimum of 4,876 square feet in size and shall incorporate tables, seating and a shade structure. The color and appearance of the furniture products and other elements must complement the overall architecture design and material. Benches and seating shall be made of a durable material such as concrete or painted iron and be designed to minimize effects from vandalism, skateboarding and weather. 3. Front and street oriented side yards shall be landscaped with the exception of approved driveways and sidewalks. 4. Driveways shall lead to a garage and not exceed the width of such garage. There shall be no parking of vehicles in the front yard except in such driveways. SECTION 7 BUILDING SEPARATION 1. The building separation between structures shall be at least ten (10) feet for Units 1 through 20. 2. The building separation between structures shall be at least eight (8) feet for Units 21 through 28. SECTION 8 LANDSCAPE STANDARDS In the SD No. 86 district, all yards shall be landscaped. Each residential unit shall meet the following minimum requirements: 1. Front yard a. One 24 -inch box canopy trees per unit. b. One additional tree species for up to five dwelling units and an additional tree species for each increment of five units. c. Six five - gallon size shrubs and 10 one - gallon size herbaceous perennials /shrubs as a foundation planting. d. Turf or acceptable dry climate ground cover: i. Turf shall be drought tolerant variety and planted as sod or hydroseed. ii. Ground cover shall be well- rooted cuttings from flats and planted at appropriate spacing for that particular plant material. 4 75A -60 2. Proiect perimeter walls a. Flowering vines shall be provided and secured to a decorative masonry wall material. b. The vines shall be five - gallon size and be planted at a maximum 20 -foot interval. They shall be secured to the walls with eye hooks and wire. c. Espaliered shrubs, fruit trees, or other ornamental trees may be substituted for the flowering vines. 3. Irrigation systems a. A pop -up sprinkler type irrigation system shall be provided for all yards for each residential unit. b. The use of "xeriphytic" or dry climate type plant materials is encouraged. Irrigation systems may require special fittings to properly water dry climate plantings. 4. Screeninq a. All meters shall be appropriately screened from public view with trellis work and vines or a hedge type shrub or they shall be incorporated into the residential structure. b. Any enclosed structure for utilities must not encroach into any required setback. 5. Maintenance a. All plant material shall be maintained per Section 41 -609 of the Santa Ana Municipal Code. AMSpecific DevelopmentsW No.88 5 75A -61 75A -62 ROH — 03/18/14 RESOLUTION NO. 2014- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING NEGATIVE DECLARATION, ENVIRONMENTAL REVIEW NO. 2013 -04, APPROVING TENTATIVE TRACT MAP NO. 2013 -05 (COUNTY MAP NO. 17546) AS CONDITIONED, AND APPROVING SITE PLAN REVIEW NO. 2013 -04 AS CONDITIONED FOR THE PROPERTY LOCATED AT 4226 -4306 WEST FIFTH STREET BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The Applicant is requesting approval of a tentative tract map and a site plan review to allow the construction of 28 detached homes at 4226 -4306 West Fifth Street. B. The Planning Commission of the City of Santa Ana held a duly noticed public hearing on September 23, 2013, and decided to recommend that the City Council approve the recommended actions for the project. On November 4, 2013, the City Council initially approved this project. However, on December 2, 2013, prior to final approval for the project, the project was continued by the City Council in order to allow staff the ability to conduct additional analysis on the potential impacts to the environment. C. After further CEQA review, the Planning Commission has, following another duly noticed public hearing on February 24, 2014, recommended the approval of the following items: 1. Adopt the Negative Declaration, Environmental Review No. 2013 -04. 2. Adopt an ordinance approving Amendment Application No. 2013 -04 and Specific Development No. 86. 3. Adopt a resolution approving Tentative Tract Map No. 2013 -05 (County Map No. 17546) as conditioned. 4. Adopt a resolution approving Site Plan Review No. 2013 -04 as conditioned. D. On March 18, 2014 the City Council of the City of Santa Ana held another duly noticed public hearing and at that time considered all testimony, written and oral. Resolution No. 2014 - 75A-63 Page 1 of 8 E. For Tentative Tract Map No. 2013 -05, the City Council of the City of Santa Ana determines that the following findings have been established: 1. The proposed project, as conditioned, and its design and improvements are consistent with the District Center designation on the General Plan and are otherwise consistent with all other elements of the General Plan. The proposed subdivision, Tentative Tract Map No. 2013 -05 (County Map No. 17546) is consistent with the land use designation and density prescribed in the General Plan and will not have an adverse effect on the surrounding uses in the area. 2. The proposed project, as conditioned, conforms to all applicable requirements of the zoning and subdivision codes as well as other applicable City ordinances. The proposed subdivision conforms to the minimum condominium requirements, as well as meets the letter and intent of the State of California Subdivision Map Act Provisions. Tentative Tract Map No. 2013 -05 is in keeping with the site plan review for the project as well as Chapters 34 and 41 of the Santa Ana Municipal Code. Covenants, Conditions and Restrictions (CC &Rs) are required for the project, which need to be approved by the City prior to the recordation of the final map. 3. The project site is physically suitable for the type and density of the proposed project. The proposed site is physically suitable for the detached development as proposed since the property will be located within a Specific Development zoning district (SD86) and has a General Plan land use designation of Low Medium Density Residential at 11 dwelling units per acre (LMR11). The site is surrounded by a combination of single - family and multi - family residential uses and is determined to have the capability to support the type and density of the project. 4. The design and improvements of the proposed project will not cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. The project site is located in an urbanized area and was previously developed with a drive -in store and three single - family residential structures, and there are no known fish or wildlife populations existing on the project site. Therefore, the Resolution No. 2014 - 75A-64 Page 2 of 8 proposed subdivision will not cause any substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat. 5. The design or improvements of the proposed project will not cause serious public health problems. The proposed subdivision is not anticipated to have any detrimental effects upon the general public. The design and improvements associated with this project have been prepared to comply with minimum City standards. The internal street and alleyways are designed to be private and will be maintained by the Homeowner Association. The width and turning radius of the internal street and alleyways are adequate to accommodate Orange County Fire Authority emergency vehicles as well as Waste Management waste collection services. Additionally, each residence will have sewer, water and the necessary infrastructure improvements as conditioned in Development Project Review No. 2013 -02. 6. The design or improvements of the proposed project will not conflict with the easements acquired by the public at large for access through or use of property within the proposed project. The design or improvements of the proposed project will not create a conflict with easements necessary for public access through or use of the property within the proposed project since there is no easement within this property. Public access will be allowed to the site through the gated entrance with homeowner or homeowner association's authorization. F. Applicant has requested approval of Site Plan Review No. 2013 -04 as conditioned. 1. Section 41- 593.5(c) of the Santa Ana Municipal Code requires the Planning Commission to review all plans within a Specific Development zoning district to ensure the project is in conformance with the approved SD. 2. Based on the following review, the project is in compliance with all applicable development standards outlined within the Specific Development No. 86 zoning document: Section 2. In accordance with the California Environmental Quality Act, the recommended actions have been reviewed through a Negative Declaration (ND), Environmental Review No. 2013 -04. Section 15063 of the State CEQA Guidelines and Sections 15070 through 15075 of Article 6 guide the process for the preparation of a negative declaration. As a result of the environmental analysis, no potential environmental Resolution No. 2014 - 75A -65 Page 3 of 8 impacts were identified for this project. All of the resource topics identified in the negative declaration were found to result in either no impact or would result in a less than significant impact. Therefore, no mitigation measures are required. Section 3. The City Council of the City of Santa Ana after conducting the public hearing hereby approves: A. Negative Declaration, Environmental Review No. 2013 -04. B. Tentative Tract Map No. 2013 -05 as conditioned in Exhibit "A" attached hereto and incorporated herein for the residential development located at 4226 -4306 West Fifth Street. C. Site Plan Review No. 2013 -04 as conditioned in Exhibit "B" attached hereto and incorporated herein. These decisions are based upon the evidence submitted at the abovesaid hearing, which includes, but is not limited to: the Request for Council Action dated March 18, 2014, and .exhibits attached thereto; and, the public testimony, written and oral, all of which are incorporated herein by this reference. Section 4. This Resolution shall not be effective unless and until Ordinance No. NS- becomes effective. If said ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise does not go into effect for any reason, then this resolution shall be null and void and have no further force and effect. Section 5. This decision rendered by the City Council of the City of Santa Ana is final and is subject to judicial review pursuant to California Code of Civil Procedure section 1094.6. The Clerk of the Council shall give direct notice to the applicant of the Council's decision and these findings. ADOPTED this day of November, 2014. Miguel A. Pulido Mayor Resolution No. 2014 - 75A-66 Page 4 of 8 APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Ryan 0. Hodge Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2014 -XXX to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana Resolution No. 2014 - 75A-67 Page 5 of 8 Conditions for Approval for Tentative Tract Map No. 2013 -05 Tentative Tract Map No. 2013 -05 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below rip or to exercising the rights conferred by this approval. The applicant must remain in compliance with all conditions listed below throughout the life of the tentative tract map. Failure to comply with each and every condition may result in the revocation of the tentative tract map. A. Planning Division 1. An Inclusionary Housing Agreement will be recorded against the property, approved by the Executive Director of Community Development and the City Attorney prior to issuance of building permit. 2. Two copies of the recorded final tract map shall be submitted each to the Planning Division, Building Division and Public Works Agency within 10 days of recordation. 3. The tentative tract map, final map and all improvements required to be made or installed by the subdivider shall be in accordance with the requirements and design standards and specifications of the City of Santa Ana and the requirements of the State Subdivision Map Act. 4. Two copies of the recorded final map and CC &Rs shall be submitted each to the Planning Division, Fire Department, Building Division, and Public Works Agency within 10 days of recordation. 5. After project occupancy, landscaping is to be maintained in accordance with the landscape plan approved for the project. This shall include the minimum levels of plant materials shown on the landscape plan and installed at the time of occupancy. 6. A fencing plan showing the location of all project fencing and the materials to be used must be submitted to the Planning Division prior to submittal into building plan check. 7. All real estate signage must be removed from the site within one year from the date of installation. An extension of time may be granted as determined by the Planning Manager. Exhibit "A" Resolution No. 2014 - 75A -68 Page 6 of 8 March 18, 2014 PAGE 2OF2 8. The final map must be approved and recorded prior to issuance of building permits. 9. Development within the area of the map is subject to development and permit fees in effect at the time of permit issuance. 10. Development within the area of the map is subject to design and development standards in effect at the time of permit issuance. 11. The project must be in compliance with the provisions of Site Plan Review (DP No. 2013 -02). A Resolution No. 2014 - 75A -69 Page 7 of 8 Conditions of Approval for Site Plan Review No. 2013 -04 Site Plan Review No. 2013 -04 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this approval. The applicant must remain in compliance with all conditions listed below throughout the life of the site plan approval. Failure to comply with each and every condition may result in a building permit not being issued. A. Planning Division 1. All proposed site improvement must conform with Site Plan Review approval of DP No. 2013 -02. 2. Any amendment to this site plan must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the Planning Commission must amend the site plan approval. 3. A detailed fence plan for the entire project including the height, design and materials shall be submitted and approved prior to issuance of building permit. 4. A common area amenity plan including the design of the shade structure, materials and furniture shall be submitted and approved prior to issuance of building permit. 5. An Inclusionary Housing Agreement will be recorded against the property, approved by the Executive Director of Community Development and the City Attorney prior to the issuance of a building permit. Exhibit "B" Resolution No. 2014 - 75A -70 Page 8 of 8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: MARCH 18, 2014 TITLE: APPROVED [I As Recommended PUBLIC HEARING — ZONING ORDINANCE ❑ As Amended AMENDMENT NO. 2013-02 TO AMEND PROVISIONS ❑ Ordinance on 15' Reading OF CHAPTER 41 RELATING TO SIGN PROGRAMS ❑ Ordinance on 2nd Reading FOR REGIONAL COMMERCIAL CENTERS AND El El Resolution ❑ bet Public Hearing For_ ATTRACTIONS, CITY OF SANTA ANA - APPLICANT CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Adopt an ordinance approving Zoning Ordinance Amendment No. 2013 -02. PLANNING COMMISSION ACTION On February 24, 2014, the Planning Commission recommended that the City Council adopt an ordinance approving Zoning Ordinance Amendment No. 2013 -02 by a vote of 6:0 (Gartner absent) to amend Chapter 41 of the Santa Ana Municipal Code relating to planned sign programs to allow provisions for regional commercial centers, automobile dealerships, and attractions and electronic message displays. The Planning Commission recommended several modifications to the proposed amendments that would remove restrictions on electronic message displays' hours of illumination and that would provide flexibility in determining compatibility of proposed signage with the scale, intensity, and site development characteristics of regional centers (Exhibit A). DESCRIPTION This zoning ordinance amendment will make it possible for regional commercial centers, automobile dealerships, and attractions, such as MainPlace Mall or Discovery Science Center, to apply for regional planned sign programs that address the unique identification needs of these regionally - oriented uses. Moreover, destinations meeting the definitions of such regional centers will be able to propose electronic message displays subject to standard conditions proposed in the zoning ordinance amendment. Such regional planned sign programs would require Planning Commission approval. FISCAL IMPACT There is no fiscal impact associated with this action. Karen Haluza Interim Executive Director Planning and Building Agency AP: rb ap \reports staff reports for oo\ZOA 2013 -02 Sign Programsm Exhibit: A. Planning Commission Staff_1 75B -2 �" REQUEST illll. i t IIIII[s�Fo,:. i �r • FEBRUARY 24, 2014 TITLE: PUBLIC HEARING — FILED BY THE CITY OF SANTA ANA FOR ZONING ORDINANCE AMENDMENT NO. 2013-02 TO AMEND PROVISIONS OF CHAPTER 41 RELATING TO SIGN PROGRAMS FOR REGIONAL COMMERCIAL CENTERS AND ATTRACTIONS Prepared by Ali Pezeshkpour t Interim Executive Direct Mt Mlffmllslgl PLANNING COMMISSION SECRETARY APPROVED • As Recommended • As Amended • Set Public Hearing For DENIED ❑ Applicant's Request ❑ Staff Recommendation • R • Actin Plana" g Manager Recommend that the City Council adopt an ordinance approving Zoning Ordinance Amendment No. 2013 -02, Planning Commission Action The proposed action was presented to the Planning Commission on September 23, 2013, after which the Planning Commission recommended that the City Council adopt a resolution approving Zoning Ordinance Amendment No. 2013 -02. Since that hearing, the City received input from the Development and Transportation Council Committee and community stakeholders that could be affected by the proposed code amendments. Based on this input, staff made additional revisions to the proposed amendments. Request of the Applicant The City of Santa Ana is requesting an amendment to Chapter 41 of the Santa Ana Municipal Code (SAMC) to reuse the code sections pertaining to sign programs for regional commercial centers and attractions. Project Description and Location The requested action will amend Sections 41 -860, 41 -861, and 41 -885 [Chapter 41, Article XI, Divisions 2 and 3 (Sign Standards and Regulations, Planned Sign Programs)] citywide. 'Planned sign programs are currently required of all commercial properties in Santa Ana with three or more tenants, with the exception of those in the Transit Zoning Code /SD -84, which sets the threshold at two or more commercial tenants. The requested action will allow certain commercial centers and attractions to apply for planned sign programs and allow unique signage as they relate to height, size, quantity, or scale. Further, the Zoning Code amendment will require that the planned sign programs be reviewed by the Planning Commission. EXHIBIT A 75B -3 Zoning Ordinance Amendment No. 2013 -02 February 24, 2014 Page 2 Proiect Backaround A planned sign program is a tool through which local jurisdictions may regulate the appearance of signage in multi- tenant commercial centers, attractions, or other destination centers. The goal of such regulation is often to encourage consistent and harmonious designs, colors, size, and locations of signage in these centers. In Santa Ana, applications for planned sign programs are reviewed and approved in a ministerial manner. The Santa Ana Municipal Code requires that proposed signage contained in planned sign programs be consistent with the minimum standards for on- premise signage found in the Sign Code. These standards include those outlined in Sections 41 -860 (General Regulations), 41 -861 (Additional Regulations), and 41 -862 through 879 (freestanding, wail, major building identification, and other signs). The provisions and standards in these sections regulate appearance, quantity, size and dimensions, location, and height of signage. The City from time to time receives applications for sign programs for major centers such as shopping venues or attractions that propose unique signage that does not conform to the standards of the SAMC. Currently, applications for these sign proposals are processed through variances or are found within zoning districts known as Specific Developments (SD). The proposed amendments would create an alternative, more streamlined means for applicants to propose signage that is unique to regional commercial centers or attractions. Proiect Analysis The purpose of this zoning ordinance amendment is to create a new tool that regional commercial centers and attractions may use to address the unique signage situations specific to these uses and locations. This amendment will also ensure that the implementation of such sign programs will not have detrimental effects on permitted adjacent sensitive uses, such as residential neighborhoods, due to potential nuisances caused by scale, quantity, light, visual distractions, and off -site advertising. Staff research and analysis of cities statewide with major commercial centers and attractions show that many jurisdictions with unique, regional commercial centers or attractions use the planned sign program as a tool to allow flexibility with signage proposals. Cities selected by staff for review contain regional malls and /or attractions with mixtures of uses similar to what is found at Westfield MainPlace or the Discovery Science Center in Santa Ana. In such cases, many of the surveyed cities require that a site meet minimum criteria to be eligible to apply for a planned sign program. These cities review applications for such sign programs through the Zoning Administrator, special Design Review Committee, or the Planning Commission. Moreover, these cities' municipal codes grant authority to the applicable review body to exercise discretion when reviewing applications for sign programs in order to ensure appropriateness with regards to size, quantity, scale, and other factors unique to site context and the nature of business activities conducted. Table 1 lists the cities surveyed and outlines the nature of their planned sign programs. 75B -4 Zoning Ordinance Amendment No. 2013 -02 February 24, 2014 F'age,3 Table 1 Surveyed Cities and Planned Sign Programs Ci Revierv;I3od ' Nafure, Brea Planning Commission Subject to a�conditional use permit and reviewed on a case- by-case basis to determine quality and site compatibility, Costa Zoning Administrator Subject to a minor conditional use permit. Zoning Mesa Administrator must make findings related to quality and context if the proposed signage deviates from the sign standards. Sign program establishes design standards, not message content, Culver Director (ministerial) Director must find that proposed signage is warranted and city compatible with existing or proposed site development, Fairfield Director (ministerial), Minimum number of tenants or size required. If no deviations Zoning Administrator, or proposed, director approves, Minor or major exceptions from Planning Commission the code require Zoning , Administrator or Planning Commission approval, respectively. Huntington Director(ministerial) Minimum floor area required. Director must find that Beach proposed signage is compatible with existing or proposed site development Newport Zoning Administrator Minimum site size, number of tenants; and /or frontage on a Beach public street required. Zoning Administrator must make findings related to quality and context If the proposed signage deviates from the sign standards. Sign program establishes design standards, not message content. Ontario Zoning Administrator Minimum site size and number of tenants required, Zoning Administrator must make findings related to quality and context It the proposed signage deviates from the sign standards. Roseville Planning Commission Required of all "regional mall' properties. Planning Commission to review location, height, area, design, and numberto ensure site comp tib lity_� The first component of the requested action is to create Section 41 -885 and establish standards of approval for regional commercial centers and attractions. This section will contain definitions for regional commercial centers and regional attractions, thereby setting minimum eligibility criteria for such sites. The proposed code amendments will also outline how and by whom applications for planned sign programs for regional commercial centers and attractions may be submitted for Planning Commission review. The proposed action will further amend the Sign Code to establish that such planned sign program applications will be reviewed in a manner similar to that for conditional use permits, as detailed in Sections 41 -633 through 41 -651 of the SAMC. The proposed amendments will also establish findings of fact that the Planning Commission must make when deciding on applications for 75B -5 Zoning Ordinance Amendment No. 2013 -02 February 24, 2014 Page 4 planned sign programs, These findings will ensure that the scale and intensity of the proposed signage is consistent with surrounding land uses, that the location of the proposed signage will not create a hazardous environment for those on City streets or nearby freeways, and that the proposed signage is compatible with the scale, intensity; and site development characteristics. Scale and intensity will be determined by a variety of factors, including height of existing or proposed on -site buildings; quantity of on -site buildings, facades, and street frontages; scale of buildings relating to surrounding land uses and transportation routes for pedestrians and motorists visibility from transportation corridors or public spaces; and architecture, colors, materials, illumination, and other site characteristics.. Staff surveys illustrate that other jurisdictions with similar regional commercial centers that review planned sign programs on a case -by -case basis take similar measures to limit distracting or potentially- hazardous signage while also allowing flexibility that reflects site development characteristics and context. The proposed action would add provisions that require applications reviewed by the Planning Commission to comply with all provisions of Section 41 -860 and several provisions of Section 41 -861 in order to guarantee the health, welfare, and safety of residents and workers in the immediate vicinity. These two sections will be modified to allow for expanded opportunities for distinctive signage, including aerial or balloon signs and electronic message displays, to better meet the unique needs of regional centers or attractions; Finally, the proposed code amendments would create a provision for electronic message displays ( "digital signs ") in planned sign programs for regional commercial centers and regional attractions. Staff surveys of other jurisdictions with similar planned sign program provisions for large -scale centers show that various cities often remand requests for digital technology to their planning commissions . and that these bodies review such requests on a case -by -case basis to ensure appropriate actions are taken that reflect the context and site development characteristics of each proposal. The proposed code amendments would also establish baseline conditions for all electronic message displays that would protect the health, safety, and welfare of those within viewing distance of such signage while also allowing flexibility in digital technology as it advances over time. Public Outreach and Notification The proposed action was presented to the Planning Commission as a work study session on April 22, 2013. On September 23, 2013, a public hearing was held on the item after which the Planning Commission recommended the proposed code amendments for approval by the City Council. Members of the business community representing properties that may be affected by the proposed code amendments were invited to attend both meetings to learn about staffs proposed changes and to provide input. Since then, the City has received additional input from various stakeholders that may be affected by the proposed code amendments. During the time between the September 23, 2013 and this public hearing, staff continued to survey other cities similar in scale to Santa Ana that have regional centers 75B -6 Zoning Ordinance Amendment No. 2013 -02 February 24, 2014 Page 5 and attractions, and stakeholders continued to provide input on latest trends and technologies available for large -scale or unique sign proposals. Staff has continued to remain in contact with interested parties, visiting with representatives of centers that could be affected by the proposed code changes, as well as individuals representing large -scale sign contractors and digital technology available for electronic message displays. The proposed revisions incorporating this feedback were presented to the Planning Commission as a work study session item on February 10, 2014. The proposed amendments are citywide and the project site is thus not located within the boundaries of one single Neighborhood Association. However, a notice was published in the Orange County Reporter. At the time of this printing, no correspondence, by phone, written, or electronic, had been received from any members of the public. CEQA Compliance In accordance with the California Environmental Quality Act, the recommended action is exempt from further review pursuant to Section 15061(b)(3) of the CEQA Guidelines. This exemption is allowed when the activity, in this case the recommendation of adoption of the ordinance, follows the general rule that CEQA only applies to projects which have the potential for causing a significant effect on the environment. The proposed definitions and establishment of sign programs for regional commercial centers and attractions will not have a significant effect on the environment. A Notice of Exemption (Environmental Review No. 2013 -63) will be filed for this project. Conclusion The proposed action would amend the Santa Ana Municipal Code to allow regional commercial centers and attractions to apply for planned sign programs to be reviewed by the Planning Commission. In doing so, the amendments would establish minimum criteria and findings of fact that allow flexibility in proposed signage for prominent, destination venues. Based on the background analysis provided Within this report, staff recommends that the Planning Commission recommend that the City Council approve Zoning Ordinance Amendment No. 2013 -02. _'V/4 1 Ali Pezeshkp ur Assistant Planner I AP:jm afteports\staff reports for pc1ZOA 2013 -02 Sign Programs.022414.pc 75B -7 75B -8 (ROH 03/18/14) ORDINANCE NO. NS -XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING CHAPTER 41 OF THE SANTA ANA MUNICIPAL CODE TO ALLOW REGIONAL PLANNED SIGN PROGRAMS, THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The Santa Ana Municipal Code does not currently contain standards for sign programs for regional commercial centers and attractions citywide. Such sign programs are necessary to ensure that signage proposals for regional centers and attractions can be reviewed in a comprehensive, thorough manner to ensure compatibility with the site and surrounding land uses. B. Regional commercial centers and regional attractions with freeway orientation have site configurations and visibility that make them suitable for comprehensive planned sign programs with provisions that address their unique locations along highly - visible freeway corridors. C. Zoning Ordinance Amendment No. 2013 -02 is to amend Chapter 41, Article XI, Divisions 2 and 3 (Sign Standards and Regulations, Planned Sign Programs), creating a new Section 41 -885, allowing certain commercial centers and attractions to apply for regional planned sign programs and allow unique signage as they relate to height, size, quantity, or scale. The Zoning Code amendment will require the regional planned sign programs to be reviewed by the Planning Commission. D. Zoning Ordinance Amendment No. 2013 -02 supports the General Plan policies of encouraging development of projects which promote the City's image as a regional activity center, of encouraging development and promotion of major centers adjacent to major arterial roadways, transit and freeway corridors, and of protecting the health and safety of residents, employees, and visitors of Santa Ana. E. On February 24, 2014, the Planning Commission held a duly noticed public hearing and voted to recommend that the City Council adopt Zoning Ordinance Amendment No. 2013 -02 to create Section 41 -885 of the Santa Ana Municipal Code to create standards of approval for regional planned sign programs, citywide. 1 75B -9 F. Zoning Ordinance Amendment No. 2013 -02 came before the City Council of the City of Santa Ana for a duly noticed public hearing on March 18, 2014, to consider all testimony, written and oral. G. The City Council adopts as findings all facts presented in the Request for Council Action dated March 18, 2014 accompanying this matter. For these reasons, and each of them, Zoning Ordinance Amendment No. 2013 -02 is hereby found and determined to be consistent with the General Plan of the City of Santa Ana and otherwise justified by the public necessity, convenience, and general welfare. H. The Request for Council Action for this ordinance dated March 18, 2014, shall by this reference be incorporated herein, and together with this ordinance, any amendments or supplements and the oral testimony before the City Council at this meeting, shall additionally constitute the necessary findings for this ordinance. All provisions of the Santa Ana Municipal Code which are repeated herein are repeated solely in order to comply with the provisions of Section 418 of the City Charter. Any such restatement of existing provisions of the Code is not intended, nor shall it be interpreted, as constituting a new action or decision of the City Council, but rather such provisions are repeated for tracking purposes only in conformance with the Charter. Section 2. Pursuant to the California Environmental Quality Act ( "CEQA ") and the State CEQA Guidelines, the adoption of this ordinance is exempt from CEQA review pursuant to 14 California Code of Regulations section 15061(b)(3), and a Notice of Exemption will be filed upon adoption of this ordinance. Section 3. Section 41 -860 of Chapter 41 of the Santa Ana Municipal Code is hereby amended to read as follows: Sec. 41 -860. General regulations. a) No sign is permitted that: 1. Is dangerous or confusing to motorists on the public right -of -way, including any sign which by its color, wording, design, location or illumination resembles or conflicts with any official traffic - control device or which impedes the safe and efficient flow of traffic. 2. Is in a condition which presents a danger of injury to the public. 3. Incorporates mechanical movement or in any way gives the illusion of motion, moving parts, rotation or any flashing, moving or intermittent 2 75B -10 lighting, other than a sign providing a time - and - temperature or similar public service display, except as approved by a Regional Planned Sign Program pursuant to section 41 -885 of this chapter. 4. Is on a vehicle, except as excluded from the scope of this article by section 41 -851 5. Impedes free ingress and egress from any door, window or exitway required by building or fire regulations. 6. Emits sound, smoke, visible particles or odors, except that speakers on drive - through facilities shall be permitted. T Is attached to or maintained upon any public utility pole or structure, or tree. b) No person, except a public officer or employee in the performance of a public duty or a private person in giving a legal notice, shall paste, post, paint, nail or tack or otherwise fasten any card, banner, handbill, sign, poster, advertisement or notice of any kind upon any property without the written consent of the owner, holder, lessee, agent or trustee thereof. c) All signs, other than temporary signs, and their supporting structures shall: 1. Be constructed of metal, wood, plastic, foam, paint and /or comparable weather - resistant material. 2. Be kept in good repair and maintained in safe, neat, clean and attractive condition. 3. Be so enclosed as to provide against their infestation by birds and vermin, and shall be structurally safe. d) Logos or identification symbols shall be considered signs and shall conform to all provisions of this article. Section 4. Section 41 -861 of Chapter 41 of the Santa Ana Municipal Code is hereby amended to read as follows: Sec. 41 -861. Additional regulations. No sign is permitted that: 1. Is an A- frame, sandwich board or other portable, temporary advertising display. 3 75B -11 2. Is temporary or special event flags, banners, festoons, flag canopies or other displays, except as permitted by a special event sign permit. 3. Is a sculptured, molded or otherwise fabricated representational object used for the purpose of visually conveying business identification or product advertising, except as approved by a planned sign program. 4. Is an aerial or balloon type of sign, except as approved by a Regional Planned Sign Program pursuant to section 41 -885 of this chapter. 5. Conflicts with standards established by resolution of the city council pertaining to the colors and materials of signs adopted for the purpose of promoting signage which is visually attractive and harmonious with its surroundings. Duplicates or repeats copy on the same sign. Is a graphic of paint or other material on a building for the purpose of amplifying or directing attention to a sign, unless approved by the planning director. Section 5. Section 41 -885 of Chapter 41 of the Santa Ana Municipal Code is hereby added to read as follows: Sec. 41 -885. Regional Planned Sign Program. a) Definitions: 1. Regional Commercial Center — A large commercial complex containing a variety of stores, restaurants and other businesses housed in a series of connected and /or adjacent buildings within an integrated campus that shares common areas and parking facilities, and which fronts onto one or more freeways. Said center must be located on a site of no less than fifteen (15) acres. 2. Regional Automobile Dealership — an automobile dealership licensed by the State of California that sells new or used automobiles or other motor vehicles in conjunction with new automobiles to the general public on an integrated site which fronts onto one or more freeways or is on a site which is located within three hundred (300) feet of the point where a freeway exit centerline intersects with a city street. 3. Regional Attraction — A large cultural or educational establishment such as a museum or zoo, or other establishment that blends education, entertainment, and /or amusement, and which fronts onto 75B -12 one or more freeways. Said attraction must be located on a site of no less than five (5) acres. b) Eligibility for a Regional Planned Sign Program: 1. The sign program is proposed for a site that is a regional commercial center, regional automobile dealership, or regional attraction. 2. The site does not abut property zoned or used for residential uses. c) Signage and other on- premise advertising must meet the provisions of the sign code meant to protect the health, safety, and welfare of residents and workers in the immediate vicinity; signaqe shall be limited to only advertising on -site business activities. All signaqe must comply with the provisions of Sections 41 -860 and 41 -861 of this Chapter except as noted within those sections pursuant to approval of a Regional Planned Sign Program described in this section. d) The provisions of this section shall be applied in coniunction with chapter 41, article A, "On- Premise Signs" of this Code, provided however, in the event of a conflict between the provisions within this section and the remainder of the City of Santa Ana Sign Ordinance as outlined in chapter 41, article A. "On- Premise Signs," the provisions of this section shall prevail e) Electronic message displays may be permitted in Regional Planned Sign Programs subject to the following conditions: 1. There shall be a maximum of one (1) double -faced sign per freeway frontage along an eligible site. 2. The display(s) shall comply with the following requirements: A. Be oriented in a wav that i. Minimizes visual and light - emitting intrusion onto properties zoned or used for residential purposes; and, ii. Maximizes visibility from adjacent or nearby freeway corridors. B. Produce a maximum 0.3 foot - candles over ambient light levels. C. Include a means of ensuring additional flexibility in reducing light levels upon request by the City. D. Provide a means of limiting excessive light or glare. 75B -13 E. Have automatic diming capabilities. 3. The sign copy shall comply with the following requirements: A. Chanae onlv throuah an immediate transition of the sian copy or message that does not have the appearance of moving text or images. The sign copy shall not use flashing, intermittent or moving lights or produce the optical illusion of movement. B. Each sign copy shall be displayed for a minimum of eight (8) seconds. 4. No electronic message display shall be located on a ground sign within fifty (50) feet of a traffic signal or sign, or placed in a location that would not maintain safe conditions for motorists, pedestrians, or cyclists as determined by the Public Works Agency. 5. The property owner shall comply with Santa Ana Municipal Code section 41- 638.2, establishing standards for graffiti abatement. 6. The property owner shall provide the City and the public a designated phone number and email address for emergencies or complaints that will be accessible 24 hours a day, seven days per week. 7. In addition to their on- premise advertising and identification purposes, the signs may be used for public service announcements or warning signs as requested and provided by the City of Santa Ana. 8. The sign shall comply with any and all federal, state and local laws, regulations and permitting requirements. f) A Regional Planned Sign Program may be submitted by an applicant representing or owning the project site or may be required for a development project when the Planning Director or his or her designee determines that such a sign program is necessary because of special project characteristics. q) Applications for Regional Planned Sign Programs shall be accompanied by photo simulations of all proposed signage showing daytime and nighttime conditions in addition to standard forms, exhibits, and other materials requested by staff as required for a complete submittal. h) Every application under this chapter for a Regional Planned Sign Program or appeal to the city council shall be accompanied by a filing fee. No application shall be 75B -14 accepted for filing without the required fee, except that all governmental agencies are the planning department. An application to permit a Regional Planned Sign Program must be approved by the Planning Commission and be reviewed subject to compliance with the following sections of the Santa Ana Municipal Code: 1. 41 -633, requiring forms, descriptions, notification of surrounding property owners, and signature(s) from recorded property owner(s), as applicable; 2. 41 -635 through 41 -637, scheduling for public hearing, providing notice of hearing, and continuances; 3. 41 -642, reviewing the decision of the Planning Commission by the City Council; 4. 41 -645 and 41 -646, processing appeals; 5. 41 -647 and 41- 647.5, utilizing such permits and violations of such permits; 6. 41 -649, modifying such permits; and 7. 41 -651, revoking of such permits. 1? In granting or denying a Regional Planned Sign Program, the Planning Commission shall make the following findings of fact and may impose conditions, restrictions or limitations as the Commission may determine to be necessary to meet the general purpose and intent of this chapter and to ensure that the public health, safety and welfare are beina maintained. Findinas shall be made and conditions may be imposed to confirm that 1. The scale and intensity of the proposed signaqe is consistent and harmonious with surrounding land uses and does not create conditions that could contribute to visual or physical blight, intrusion, or similar incompatibilities. 2. The location of the proposed signaqe will not contribute towards a hazardous environment for pedestrians, cyclists, or motorists on City streets or freeways. 75B -15 3. The proposed signage is compatible with the scale, intensity, and site development characteristics on which it is proposed. Scale, intensity, and site development characteristics may be determined by: A. Height of existing or proposed buildings on -site; B. Quantity of freestanding buildings, facades, and street frontages; C. Scale of buildings as they relate to pedestrian and vehicular access, surrounding land uses, and transportation corridors; D. Visibility from streets, highways, pedestrian areas, rail corridors, bikeways, other transportation routes, parks, and other public spaces; E. Architecture, color(s), material(s), illumination, and other site characteristics; and nature of business activities conducted on- site; and, F. Visibility from any property used or zoned for residential purposes. k) Appeals from decisions of the Planning Commission, extensions, time limits, and modifications to such Regional Planned Sign Programs must be conducted in a manner in accordance with Chapter 41, Article V Division 1 of the Santa Ana Municipal Code. Section 6. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this day of 2014 Miguel A. Pulido Mayor 75B -16 APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Ryan O. Hodge, Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS -XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 9 75B -17 75B -18