Agenda packet — Aliso Viejo City Council, September 6, 2023 (part 1 of 2)

1 AGENDA

ALISO VIEJO CITY COUNCIL
WEDNESDAY, SEPTEMBER 06, 2023
6:00 PM CLOSED SESSION
7:00 PM REGULAR MEETING
FOLLOWED BY PUBLIC FACILITIES CORPORATION MEETING*

City Hall
Council Chambers
12 Journey
Aliso Viejo, CA

Mayor Richard W. Hurt
Mayor Pro Tem Mike Munzing
Councilmember Tiffany Ackley
Councilmember Ross Chun
Councilmember Max Duncan

WELCOME to the City of Aliso Viejo City Council meeting. Those persons wishing to address the City Council are requested to complete and submit to the City Clerk a “Request to Address City Council” form available at the entrance to the City Council Chambers. Speakers will be called at the appropriate time as their interested matter is heard. COMMENTS WILL BE LIMITED TO THREE MINUTES PER SPEAKER. Coun cil proceedings are recorded.

It is the City’s intention to comply with the Americans with Disabilities Act (ADA). If you need special assistance to participate in the meeting, the City will make reasonable arrangements to ensure accessibility and/or accommodations. [28 CFR 35.102-35.104 ADA Title II] Please contact the City Clerk’s Office at (949) 425-2505 at least 48 hours prior to the meeting.

Regular meetings of the City Council are held on the first and third Wednesday of the month at the City Hall Council Chambers, 12 Journey, Aliso Viejo. Copies of the agenda are available in the lobby at City Hall on the Thursday preceding a regularly scheduled City Council meeting. All communications received by the City regarding an agenda item have been included in the agenda materials. Supplemental documents relating to specific agenda items, including communications received after agenda delivery, are presented at the dais and in the Public Copy agenda binder at the time of the meeting. Supplemental documents are also available for review in the City Clerk’s office, 12 Journey, Aliso Viejo. For more information, please contact City Hall at (949) 425- 2505.

This meeting will be broadcast live on Cox Communications Channel 851, AT&T U -Verse Channel 99 and the City's website. By attending the City Council Meeting, you are giving your permission to be televised. The Council Meetings are rebroadcast on Wednesday at 7:00 p.m. on Cox Communications Channel 851, AT&T U -Verse Channel 99, and can be viewed on the internet at www.avcity.org.

DAVID A. DOYLE SCOTT C. SMITH MITZI ORTIZ

CITY MANAGER CITY ATTORNEY CITY CLERK
1 2

PLEASE SILENCE ALL CELL PHONES AND OTHER

ELECTRONIC EQUIPMENT WHILE CITY COUNCIL IS IN SESSION

CALL TO ORDER: CONVENE SPECIAL MEETING

PUBLIC COMMENTS:

CLOSED SESSION:

CONFERENCE WITH LABOR NEGOTIATORS
Pursuant to Government Code Section 54957.6
Agency Designated Representatives: City Manager and City Attorney Unrepresented Employees: All Employees

CONFERENCE WITH LEGAL COUNSEL- ANTICIPATED LITIGATION
Initiation of Litigation Pursuant to Government Code Section 54956.9(d)(4) Number of Potential Cases: 1

CALL TO ORDER: CONVENE REGULAR MEETING

ROLL CALL

PLEDGE OF ALLEGIANCE:

REPORT FROM CLOSED SESSION:

1. SPECIAL PRESENTATIONS:

1.1. PROCLAMATION – 2023 HUNGER ACTION MONTH
Proclamation

1.2. PROCLAMATION – NATIONAL PREPAREDNESS MONTH
Proclamation

2. ADDITIONS, DELETIONS, REORDERING TO THE AGENDA:

2 3

3. COMMUNITY INPUT:

Members of the public wishing to address the City Council are requested to complete and submit to the City Clerk a “Request to Address City Council” form available at the entrance to the City Council Chambers. In compliance with the Brown Act, no discussion or action may be taken on comments received at this time, except the City Council may briefly respond to statements made or questions posed. Comments are limited to three (3) minutes per speaker.

4. CONSENT CALENDAR:

All matters listed on the Consent Calendar will be acted upon by one vote unless members of the City Council, or staff request a matter to be discussed and/or removed from the Consent Calendar for separate action. Items removed from the Consent Calendar will be discussed and voted upon immediately following City Council action on the remainder of the Consent Calendar.

4.1. WAIVE THE READING OF ALL ORDINANCES AND RESOLUTIONS Recommended Action: Approve the reading by title only of all ordinances and resolutions wherein the titles appear on the public agenda; said titles shall be determined to have been read by title, and further reading is waived.

4.2. APPROVAL OF MINUTES
Recommended Action: A pprove the Minutes as submitted for the August 16, 2023 Special Meeting and August 16, 2023 Regular Meeting.

Draft Minutes - August 16, 2023 Special Meeting
Draft Minutes - August 16, 2023 Regular Meeting

4.3. ACCOUNTS PAYABLE
Recommended Action: Ratify accounts payable checks and electronic funds transfers issued between August 4 and August 17, 2023, in the amount of $1,361,964.06.

Staff Report
Attachment 1 - Accounts Payable Report

4.4. TREASURER’S STATEMENT – JULY 2023
Recommended Action: Receive and file the July 2023 Treasurer’s Statement.

Staff Report
Attachment 1 – July 2023 Treasurer’s Statement

4.5. AGREEMENT WITH NV5, INC. FOR ON-CALL CIVIL ENGINEERING SERVICES Recommended Action:

1. Approve a 3- year agreement with NV5, Inc. to perform on- call civil engineering services; and

2. Authorize the City Manager to execute a professional services agreement with NV5, Inc. for an amount of $50,000.

Staff Report
Attachment 1 - Agreement
3 4

4.6. SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT WITH RDA,

LLC TO PROVIDE PLANNING CONSULTANT SERVICES
Recommended Action: Approve and authorize the City Manager to execute a second amendment to the Professional Services Agreement with RDA, LLA to increase the total compensation by $65,000.

Staff Report
Attachment 1 - Original Agreement
Attachment 2 - Second Amendment
Attachment 3 - Preliminary Parking Analysis
Attachment 4 - Financial Feasibility Study
Attachment 5 - Presentation Outline

5. PUBLIC HEARINGS:

5.1. PUBLIC HEARING REGARDING CONSIDERATION OF THE OPERATING COVENANT

AGREEMENT WITH HUNT AND SONS, LLC, AND THE RELATED ECONOMIC

SUBSIDY REPORT
Recommended Action:

1. Open and conduct a public hearing;

2. Declare that this project is exempt from the California Environmental Quality Act CEQA) under Section 15378(b)(4) because the Covenant Agreement involves the creation of a government funding mechanism, or other fiscal activity, that does not involve any commitment to any specific project which may re sult in a direct or indirect physical change in the environment;

3. Adopt the Resolution approving the acceptance of the Economic Development Subsidy Report prepared pursuant to Government Code Section 53083 regarding an operating covenant agreement by and between the City of Aliso Viejo and Hunt and Sons, LLC, and approving the operating covenant agreement between the City of Aliso Viejo and Hunt and Sons, LLC and making related findings;

4. Authorize the Director of Financial Services to appropriate $880, 000 to the fiscal year 2023-24 budget for subsidy payments to Hunt and Sons, LLC; and

5. Authorize the City Manager to execute all related documents.

Staff Report
Attachment 1 - Resolution
Attachment 2 - Operating Covenant Agreement
Attachment 3 - Economic Development Subsidy Report

5.2. TIME EXTENSION REQUEST FOR A SITE DEVELOPMENT PERMIT AND EXTENSION PERMIT AT 6 POLARIS WAY
Recommended Action: Approve, via Minute Order, a time extension request to extend the validity of a Site Development Permit and Extension Permit for the constructio n of a 42,400 square foot, two -story general office building and a 423 space, 4½ level parking structure with a 7.6% parking reduction at 6 Polaris Way (PA15-030).

Staff Report
Attachment 1 - Time Extension Request Letter
Attachment 2 - Project Plans
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5.3. A REQUEST TO INCREASE THE NUMBER OF DINING ROOM SEATS IN AN EXISTING RESTAURANT LOCATED AT 22912 PACIFIC PARK DRIVE, SUITE B (TACOS DE

BIRRIA ESTILO GUADALAJARA)
Recommended Action: Adopt a Resolution approving a Conditional Use Permit to increase the number of seats to 40 in an existing restaurant located at 22912 Pacific Park Drive, Suite B (CUP-2023-00012).

Staff Report
Attachment 1 - Resolution
Attachment 2 - Applicant Letter
Attachment 3 - Project Plans
Attachment 4 - Presentation

6. DISCUSSION:

None.

7. CITY MANAGER' S REPORT:

8. ANNOUNCEMENTS / COUNCIL COMMENTS / COMMITTEE UPDATES:

9. ADJOURNMENT:

Adjourn to October 4, 2023. The regularly scheduled City Council meeting of September 20, 2023 has been cancelled.

*Aliso Viejo Public Facilities Corporation (PFC) Board of Directors Annual Meeting to be held immediately following City Council Regular Meeting. (Please refer to September 6, 2023 PFC Agenda.)

5 Proclamation
2023 Hunger Action Month

WHEREAS, hunger and poverty are issues of vital concern in California, where 10.5% of Californians face food insecurity on a daily basis and one in every seven California children do not know where their next meal will come from; and

WHEREAS, everyone needs nutritious food to thrive, and people are working hard to provide for themselves and their families – yet over 267,000 individuals, including over 64,000 children, here in Orange County are food insecure; and

WHEREAS, the City of Aliso Viejo is committed to working with Abound Food Care, Orange County Food Bank, and Second Harvest Food Bank, collectively known as the Orange County Hunger Alliance, in educating people about the importance of food banks and food care in addressing hunger and raising awareness of the need for more resources; and

WHEREAS, in the first half of 2023, Orange County Food Bank and Second Harvest Food Bank collectively recorded an average of 888,057 food distribution visits per month and collectively distributed 33,661,205 million pounds of food through its partner network; and

WHEREAS, in the first half of 2023, Abound Food Care has recovered 307,430 pounds of food, reducing food waste and diverting that food to those who need it; and

WHEREAS, the month of September has been designated “Hunger Action Month” in order to bring attention to food insecurity and to enlist the public in the movement to end hunger by taking action to ensure every community member has the food they need to thrive; and

WHEREAS, food banks and other organizations across the country, including the members of the Orange County Hunger Alliance will host numerous events throughout the month of September to bring awareness and help end food insecurity in our local community;

THEREFORE, BE IT R ESOLVED that the Aliso Viejo City Council does hereby recognize September 2023 as HUNGER ACTION MONTH in the City of Aliso Viejo and calls this observance to the attention of our citizens.

Dated this 6th day of September, 2023

_______________________________
Richard Hurt, Mayor

6 Proclamation
National Preparedness Month
September 2023

WHEREAS, National Preparedness Month, occurring annually in September since 9/11, creates an opportunity for every resident of Aliso Viejo to join others across the United States in preparing thei r h omes, businesses, and communities for any type of emergency, including natural and man-made disasters; and

WHEREAS, the Federal Emergency Management Agency announced the 2023 National Preparedness Month theme of "Preparing for Older Adults,” as older adul ts face greater risks when it comes to disasters, especially if they are living alone, are low -income, or have a disability; and

WHEREAS, when individuals take responsibility for planning and preparing their households now, before the next disaster, the chance of survival and recovery following a disaster is greatly increased; and

WHEREAS, the City of Aliso Viejo partners with county, federal, state, local, private, and volunteer agencies to provide public education and volunteer programs, such as Comm unity Emergency Response Team, to educate individuals on local hazards and how to prepare for them, and on how to take action; and

WHEREAS, all residents of Aliso Viejo are urged to plan ahead for disasters by registering for AlertOC and Nixle mass notifi cation systems to receive emergency alerts, and by visiting the City’s preparedness website at avcity.org/DisasterPreparedness for essential preparedness tips and information;

THEREFORE, BE IT RESOLVED that the Aliso Viejo City Council hereby proclaims September 2023 as National Preparedness Month, and calls on all government agencies, private organizations, and the people and businesses of the City of Aliso Viejo to develop their own emergency preparedness plans, and work together toward creating a stronger, more resilient community.

Dated this 6th day of September, 2023

_______________________________
Richard Hurt, Mayor

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Special Meeting Minutes

CITY OF ALISO VIEJO

CITY COUNCIL MINUTES

SPECIAL MEETING
AUGUST 16, 2023, 6:00 P.M.

Council Chambers, City Hall ,12 Journey
Aliso Viejo, California
CALL TO ORDER: Mayor Hurt called the Special Meeting of the City Council of the City of Aliso Viejo to order at 6:00 p.m.

ROLL CALL:

PRESENT: MAYOR RICHARD W. HURT

MAYOR PRO TEM MIKE MUNZING

COUNCILMEMBER TIFFANY ACKLEY

COUNCILMEMBER ROSS CHUN

COUNCILMEMBER MAX DUNCAN
ABSENT: NONE
STAFF PRESENT: DAVID A. DOYLE, CITY MANAGER
SCOTT C. SMITH, CITY ATTORNEY
PUBLIC COMMENTS:

None.

CLOSED SESSION:

CONFERENCE WITH REAL PROPERTY NEGOTIATORS
Pursuant to Government Code section 54956.8
Property: 89 Playa Circle, #R, Aliso Viejo, CA 92656; APN: 934-53-777 Agency Designated Negotiators: City Manager and Community Development Director Negotiating Parties: City of Aliso Viejo, Aliso Viejo Community Association and their authorized legal counsel/representatives
Under Negotiation: Price and terms of payment

CONFERENCE WITH LEGAL COUNSEL-EXISTING LITIGATION
Pursuant to Government Code Section 54956.9(d)(1)
Number of Cases: 1
Case Name: Geetanjali “Gina” M. Tharani v. City of Aliso Viejo, et al.

Case Number: 30-2022-01252489-CU-WT-CJC
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Special Meeting Minutes

CONFERENCE WITH LEGAL COUNSEL- ANTICIPATED LITIGATION
Initiation of Litigation Pursuant to Government Code Section 54956.9(d)(4) Number of Potential Cases: 1
REPORT FROM CLOSED SESSION:

City Attorney Scott Smith stated direction was provided to staff.

ADJOURNMENT: Mayor Hurt adjourned the meeting at 7:16 p.m. to the August 16, 2023 Regular Council Meeting.

Respectfully submitted: Approved by:
________________________ ________________________

MITZI ORTIZ, MMC RICHARD HURT

CITY CLERK MAYOR
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Regular Meeting Minutes

CITY OF ALISO VIEJO

CITY COUNCIL MINUTES

REGULAR MEETING
AUGUST 16, 2023, 7:00 P.M.

Council Chambers, City Hall, 12 Journey
Aliso Viejo, California
CALL TO ORDER: Mayor Hurt called the Regular Meeting of the City Council of the City of Aliso Viejo to order at 7:18 p.m.

ROLL CALL
PRESENT: MAYOR RICHARD W. HURT

MAYOR PRO TEM MIKE MUNZING

COUNCILMEMBER TIFFANY ACKLEY

COUNCILMEMBER ROSS CHUN

COUNCILMEMBER MAX DUNCAN
ABSENT: NONE
STAFF PRESENT: DAVID A. DOYLE, CITY MANAGER
SCOTT C. SMITH, CITY ATTORNEY

MITZI ORTIZ, CITY CLERK

ANN EIFERT, FINANCIAL SERVICES DIRECTOR

SHAUN PELLETIER, PUBLIC WORKS DIRECTOR

JOHN KANLUND, CONTRACT PLANNER

ISAAC AZIZ, INFORMATION TECHNOLOGY MANAGER
CAPT. ALAN VILLANUEVA, CHIEF OF POLICE SERVICES
PLEDGE OF ALLEGIANCE: Management Analyst Charlene Cheng led the pledge of allegiance.

REPORT FROM CLOSED SESSION:

City Attorney Scott Smith stated direction was provided to staff.

1. SPECIAL PRESENTATIONS:

1.1. BUSINESS OF THE MONTH - CODE NINJAS
Mayor Hurt introduced the video.
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Regular Meeting Minutes

2. ADDITIONS, DELETIONS, REORDERING TO THE AGENDA:

None.

3. COMMUNITY INPUT:

1. Brandi Madison expressed concern with the use of pesticides.

2. Carolyn McCuan expressed concern with the use of pesticides.

3. Tracy Blum expressed concern with the use of pesticides.

4. Melissa Christian expressed concern with the use of pesticides.

4. CONSENT CALENDAR:

Unless otherwise indicated below, the following pertains to all items on the Consent Calendar.

Motion: Mayor Pro Tem Munzing moved and Councilmember Chun seconded to approve the recommended actions. Motion carried 5-0.

4.2. APPROVAL OF MINUTES
Recommended Action: Approve the Minutes as submitted for the July 19, 2023 Special Meeting and July 19, 2023 Regular Meeting.

4.3. ACCOUNTS PAYABLE
Recommended Action: Ratify accounts payable checks and electronic funds transfers issued between July 7 and August 3, 2023, in the amount of $2,278,604.27.

4.4. TREASURER’S STATEMENT – JUNE 2023
Recommended Action: Receive and file the June 2023 Treasurer’s Statement.

4.5. COOPERATIVE AGREEMENT WITH OCTA FOR THE COUNTYWIDE SIGNAL

SYNCHRONIZATION BASELINE PROJECT
Recommended Action: Authorize the City Manager to execute the cooperative agreement with the Orange County Transportation Authority (OCTA) for a Countywide 11

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Regular Meeting Minutes
Signal Synchronization Baseline Project at a future date upon OCTA General Counsel signing the agreement.

4.6. FIRST AMENDMENT TO THE AGREEMENT WITH HARTZOG & CRABILL, INC. FOR

ON-CALL TRAFFIC ENGINEERING SERVICES FOR TRAFFIC SIGNAL OPERATIONS Recommended Action:

1. Approve a first amendment to the agreement with Hartzog & Crabill, Inc. (HCI) to perform traffic engineering services for traffic signal operations that increases the total compensation under the agreement by $30,000 for a total compensation amount of $105,000; and

2. Authorize the City Manager to execute the first amendment to the agreement.

4.7. AGREEMENT FOR GEOGRAPHIC INFORMATION SYSTEM (GIS) APPLICATION

SUPPORT SERVICES
Recommended Action: Approve and authorize the City Manager to sign a Professional Services Agreement with J.R. Dira for Geographic Information System (GIS) support services for a period of three years in an amount not to exceed $75,000.

4.8. AGREEMENT FOR ENTERPRISE LAND MA NAGEMENT MAINTENANCE AND

SUPPORT SERVICES
City Manager David Doyle and IT Manager Isaac Aziz responded to questions regarding scope of work and agreement term.

Recommended Action: Approve and authorize the City Manager to execute a Professional Services Agreement with Go Live Technologies, Inc., for Enterprise Land Management System (ELM) related maintenance and support for a period of two years in an amount not to exceed $140,000.

Motion: Councilmember Ackley moved and Mayor Pro Tem Munzing seconded to approve the recommended action. Motion carried 5-0.

4.9. SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT WITH RDA,

LLC FOR PLANNING CONSULTANT SERVICES
City Manager David Doyle provided an overview. Staff responded to questions regarding scope of services and website updates. Councilmembers commented on the matter.

Recommended Action: Approve and authorize the City Manager to execute a second amendment to the Professional Services Agreement with RDA, LLC to increase the total compensation by $65,000.

Motion: Councilmember Ackley moved and Mayor Pro Tem Munzing seconded to continue the matter to September 6, 2023. Motion carried 5-0. 12

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Regular Meeting Minutes

4.10. SECOND AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR STC TRAFFIC, INC. FOR ON-CALL TRAFFIC ANALYSIS
Recommended Action: Approve and authorize the City Manager to execute a second amendment to the professional services agreement with STC Traffic, Inc. to increase the compensation amount by $50,000 for a total compensation amount of $100,000.

5. PUBLIC HEARINGS:

5.1. REQUEST TO APPROVE SITE DEVELOPMENT AND CONDITIONAL USE PERMITS (SDP-2023-00002 AND USE-2023-00008) FOR THE CONSTRUCTION OF A TWO-

STORY CLASSROOM BUILDING AND SITE IMPROVEMENTS
City Manager David Doyle introduced Contract Planner John Kanlund, who provide d an overview. Staff responded to questions regarding construction schedule, neighboring property owner agreement, emergency access , and student capacity. Councilmembers commented on the matter. Mayor Hurt opened the public hearing and the following persons provided comment:

1. Rhoads Martin expressed support of the project and concern with the conditions related to parking and construction mitigation.

2. Vesna Medak-Hlousek expressed opposition to the project.

There were no other comments. Mayor Hurt closed the public hearing.

Recommended Action:

1. Open and conduct a public hearing;

2. Find that the request is consistent with the California Environmental Quality Act (CEQA) pursuant to CEQA Sections 15314, 15070 to 15075, 15097, 15164; and

3. Adopt Resolution No. 2023-25 approving Site Development and Conditional Use Permits (SDP-2023-00002 and USE-2023-00008) for the construction of a two- story classroom building and site improvements.

Motion: Mayor Pro Tem Munzing moved and Councilmember Duncan seconded t o approve the recommended actions. Motion carried 5-0.

6. DISCUSSION:

None.

7. CITY MANAGER' S REPORT:

City Manager David Doyle congratulated Recreation & Community Services Manager Lizzy Mendoza on the birth of her child.
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Regular Meeting Minutes

8. ANNOUNCEMENTS / COUNCIL COMMENTS / COMMITTEE UPDATES:

Councilmember Chun:
 Attended Walk with Ari & Meet the Merchants event
 Attended Aliso Viejo Chamber of Commerce Legislative Meet and Greet  Interviewed Boys & Girls Clubs of Capistrano Valley Associate Executive Director  Attended Aliso Viejo Chamber of Commerce Networking Breakfast  Met with Capistrano Unified School District Superintendent  Attended OCFA Board of Directors Meeting
 Attended OCFA Human Resources Committee
 Attended Wildfire Insurance Townhall
 Attended Aliso Viejo Chamber of Commerce Field Trip Friday  Commented on Webb’s Grainworks
 Commented on Boys & Girls Clubs launching podcasts
 Attended Boy Scout Troop 700 Eagle Scout Court of Honor  Attended The Covington event
Councilmember Duncan:
 Expressed appreciation to AVCA for summer events
 Wished students well in the new school year
Councilmember Ackley:
 Wished students well in the new school year
 Announced Capistrano Unified School District scavenger hunt  Expressed appreciation to OCFA and Mayor for visit to neighborhood lemonade stand Mayor Pro Tem Munzing:
 Attended Aliso Viejo Chamber of Commerce Networking Breakfast  Attended Aliso Viejo Chamber of Commerce After Hours Event  Attended OC Fair Elected Officials Night
 Attended AVCA Concert in the Park
 Attended Aliso Viejo Chamber of Commerce Field Trip Friday  Attended Wildfire Insurance Townhall
 Attended Angry Chicks Grand Opening
Mayor Hurt:
 Commented on St. Mary’s School
 Attended Shakespeare by the Sea
 Wished students well in the new school year
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Regular Meeting Minutes

9. ADJOURNMENT:

Mayor Hurt adjourned the meeting at 8:50 p.m. to September 6, 2023.

Respectfully submitted: Approved by:
________________________ ________________________

MITZI ORTIZ, MMC RICHARD HURT

CITY CLERK MAYOR
15 City of Aliso Viejo

AGENDA ITEM
DATE: September 6, 2023
TO: Mayor and City Council
FROM: Ann Eifert, Director of Financial Services

SUBJECT: ACCOUNTS PAYABLE
Recommended Action:

Ratify accounts payable checks and electronic funds transfers issued between August 4 and August 17, 2023, in the amount of $1,361,964.06.

Fiscal Impact:

Expenditures in the amount of $1,361,964.06.

Background:

The City issues accounts payable checks on bi-weekly basis and presents it to City Council for ratification at its next regularly scheduled City Council meeting.

Discussion:

The attached register containing checks and electronic funds transfers between August 4 and August 17, 2023, for a total of $1,361,964.06 is being presented for ratification. All payments have been made in compliance with the City’s purchasing policy and procedures. Payments have been reviewed and approved by the appropriate departmental staff. The issued accounts payable checks and electronic funds transfers have been reviewed and deemed in accordance with the fiscal year budget by the Director of Financial Services.

Attachment:

1. Accounts Payable Report
16 Accounts Payable
Description (Item)Vendor Name Amount
101 - GENERAL FUND
SEP'23 DENTAL - TACHOICE BUILDER 47.64
SEP'23 DENTAL - RCCHOICE BUILDER 145.88
SEP'23 DENTAL - RHCHOICE BUILDER 96.90
SEP'23 DENTAL INSURANCECHOICE BUILDER 1,933.76
SEP'23 VISION INSURANCECHOICE BUILDER 313.84
SEP'23 VISION - RCCHOICE BUILDER 24.19
SEP'23 VISION - RHCHOICE BUILDER 15.03
APR-JUN'23 SEISMIC MAPPING FEESDEPT OF CONSERVATION 2,918.38 APR-JUN'23 CASP FEESDIVISION OF THE STATE ARCHITECT 112.40 APR-JUN'23 CA BLDG STANDARD ADMIN FEESCA BUILDING STANDARDS COMMISSION 647.10 P#22-10-120_21 BLUE JAY_LILLYWHITE POOLSLILLYWHITE POOLS INC 3,000.00 POOL-2022-00019_21 BLUE JAY DR_LILLYWHITE POOLSLILLYWHITE POOLS INC 500.00 9,755.12

CITY MANAGER
DL 6/28 OCCMA JUNE RETREAT FLOWERSUS BANK PURCHASING CARD PROGRAM 83.90 DL 7/12 OCCMA THANK YOU CARDSUS BANK PURCHASING CARD PROGRAM 5.38 CITY MANAGER TOTAL: 89.28

HUMAN RESOURCES
JUL'23-CC/KK/JGR SECURE LIVE SCAN FEESCHARLES C STILL 186.00 JUL'23 HR-OFFICE SUPPLIESSTAPLES ADVANTAGE 45.65
HUMAN RESOURCES TOTAL: 231.65

CITY CLERK
FY23-24 NETFILE ANNUAL SBSCPTN 7/1/23-6/30/24NETFILE, INC 4,000.00 ANNUAL WEB FEES/WEB ENHANCEMENT PENDING UPDATESICC GENERAL CODE, INC 1,240.00 CITY CLERK TOTAL: 5,240.00

FINANCE
AUG'23 CH CASH COURIER SERVICEGARDAWORLD 476.25
SEP'23 ADMIN FEECHOICE BUILDER 35.00
FY23-24 FIN-SUPPLIESSTAPLES ADVANTAGE 66.99
JUL-SEP'23 PROPERTY TAX CONTRACT SERVICESHDL COREN & CONE 3,852.80 FY 22-23 ACFR STATISTICS + CAL MUNI DEBT REPORTHDL COREN & CONE 1,095.00 FINANCE TOTAL: 5,526.04

INFORMATION TECHNOLOGY
JUL'23 CH-ALARM/POTS LINEAT&T 2,212.57
JUL'23-MAR'24 IT TRAINING (ONLINE)STORMWIND LLC 2,500.00 OCT'22-JUN'23 IT TRAINING (ONLINE)STORMWIND LLC 2,500.00 8/01/23-7/31/24 ARCGIS BASIC+STD MAIN+CREATER SUBSENVIRONMENTAL SYSTEMS RESEARCH INSTITUTE INC 3,165.89 AJAV AXIS IP CAMERA INSTALLATIONJOSEPH GHOULAM 919.96
AUG'23 ACCT #8802 CH INTERNET-FIBER 600MBCOX COMMUNICATIONS, INC 1,500.00 2/26/23-2/25/24 CH BARRACUDA EQUIPAND SUBSCRIPTIONSHI INTERNATIONAL CORP 23,500.89 I 6/28 EOC YOUTUBE SUBSCRUS BANK PURCHASING CARD PROGRAM 72.99 IA 7/8 STELLAR DATA RECOVERYUS BANK PURCHASING CARD PROGRAM 49.00 IA 7/16 WAITWHILE SUBSCRIPTIONUS BANK PURCHASING CARD PROGRAM 159.00 IA 6/23 MICRO CENTERUS BANK PURCHASING CARD PROGRAM 683.93 JUL'23 CH GOTO VOIP SERVICE & SUPPORTGOTO COMMUNICATIONS 663.58 AUG'23 CH GOTO VOIP SERVICE & SUPPORTGOTO COMMUNICATIONS 1,990.75 JUL'23 CH O365 - LICENSES & SUPPORTTANGENT COMPUTERS INC 2,999.86 JUL'23 OFFSITE BACKUP STORAGELUNAVI, INC 1,444.17
AUG'23 OFFSITE BACKUP STORAGELUNAVI, INC 1,403.07
RC 6/29 APPLE USB-C DIGITAL AV MULTIPORT ADAPTERUS BANK PURCHASING CARD PROGRAM 135.44 RC 6/29 APPLE LIGHTNING TO DIGITAL AV ADAPTERUS BANK PURCHASING CARD PROGRAM 91.56 INFORMATION TECHNOLOGY TOTAL: 45,992.66

NON-DEPARTMENTAL
JUL'23 - RECORDS OFF SITE STORAGECERTIFIED RECORDS MANAGEMENT 453.33 17 Description (Item)Vendor Name Amount
AUG'23 - RECORDS OFF SITE STORAGECERTIFIED RECORDS MANAGEMENT 679.53 JUL'23 RICOH C5200S COPY ROOM LEASE (3260)RICOH USA 726.39 JUL'23 RICOH C5200S COPY ROOM LEASE TAX (3260)RICOH USA 3.53 AUG'23 RICOH C5200S COPY ROOM LEASE TAX (3260)RICOH USA 3.09 AUG'23 RICOH C5200S COPY ROOM LEASE (3260)RICOH USA 726.83 7/20 CH BOTTLED WATER SERVICE_9 CASESDS SERVICES OF AMERICA, INC 87.70 FY23-24 ACC-OC ANNUAL MEMBERSHIP DUESASSOCIATION OF CALIFORNIA CITIES 10,857.60 JUL'23 RICOH RSI CLOUD SUBSCRIPTIONRICOH USA 22.05
JUN'23 2504EX (FRONT COUNTER)-PRINTSRICOH USA 223.79
JUL'23 RICOH 2504 BACK OFFICE PRINTS (4542)RICOH USA 78.51 JUL'23 RICOH 2504EX (FRONT COUNTER)-PRINTSRICOH USA 192.45 MAY-JUL'23 RICOH C5200S COPY ROOM PRINTS (3260)RICOH USA 350.98 MAY-JUL'23 RICOH 2504EX SUITE 200 PRINTS (2936)RICOH USA 22.14 AUG'23 RICOH RSI CLOUD SUBSCRIPTIONRICOH USA 22.05
JUL'23 RICOH 2504 (BACK OFFICE)-PRINTS (4542)RICOH USA 98.36 JUL'23 - CH FIRST AID SUPPLIESCINTAS CORPORATION NO. 2 162.03 JUL'23 - COPY&BREAKROOM SUPPLIES NON DEPARTMENTALSTAPLES ADVANTAGE 131.46 8/7/23-COUNCIL_TAFEDERAL EXPRESS 11.10
JUN'23 MOTORCYCLE FUEL - CITYVOYAGER FLEET SYSTEMS INC 544.89 QUADIENT POSTAGE 7/27/23QUADIENT FINANCE USA, INC 500.00 AUG'23 35 PLAYA CIR HOA FEESHARBOR STATION MAINTENANCE 175.00 AUG'23 35 PLAYA HOA DUESGLENWOOD MAINTENANCE CORPORATION 147.00 FY23-24 POLLUTION LIABILITY INSURANCECALIFORNIA JPIA 2,140.00 AUG'23 - JULY 4TH BANNERS REMOVALVIGICABI INC 1,400.00
JUL'23 35 PLAYA CIR HOA FEESGLENWOOD MAINTENANCE CORPORATION 157.00 5/29-8/28/2023 POSTAGE MACHINE LEASEQUADIENT LEASING USA INC 590.39 NON-DEPARTMENTAL TOTAL: 20,507.20
C. S. ADMINISTRATION
2023 AV HOLIDAY TREE FULLY DECORATED - DEPOSITJONES FOREST PRODUCTS LLC 14,230.00 DEP - 2023 AV HOLIDAY TREE PLATFORMSPECIAL EVENT CONTRACTORS LLC 4,264.78 DEPOSIT 2023 TREE LIGHTING JOLLY JUMPS RENTALSM&J PAUL ENTERPRISES INC 4,662.50 8/25/23 TOY STORY MOVIE NIGHT SCREEN & MOVIE LICSCOTT WAYNE BAKER 1,050.00 2023 TREELIGHTING EVENT POSTCARDSSMART LEVELS MAILING & PRINTING INC 342.55 JUL'23 SMP TRANSPORTATION SERVICESCABCO YELLOW INC 490.00 C. S. ADMINISTRATION TOTAL: 25,039.83

IGLESIA PARK
JUL'23 IGLESIA PARK MAINTENANCEPV MAINTENANCE INC 216.00 JUL'23 ACCT#7997 IGLESIA PARKSO CAL EDISON 174.05
IGLESIA PARK TOTAL: 390.05

IGLESIA BUILDING
JUL'23 IGLESIA ACCESS CONTROLSONITROL ORANGE COUNTY LLC 104.18 AUG'23 IGLESIA ACCESS CONTROLSONITROL ORANGE COUNTY LLC 104.18 8/17/23-11/16/23 IGLESIA ALARMPROTECTION ONE ALARM MONITORING INC 150.00 JUL'23 ACCT#7997 IGLESIA BLDGSO CAL EDISON 3,014.55
IGLESIA BUILDING TOTAL: 3,372.91

PLANNING
IA 6/30 CONSTANTCONTACT.COM SUBSCRUS BANK PURCHASING CARD PROGRAM 45.00 PLANNING TOTAL: 45.00

ENGINEERING (GENERAL)
JUL'23 WAREHOUSE LEASEPV MAINTENANCE INC 1,035.00
WAREHOUSE LEASE PV MAINTENANCEPV MAINTENANCE INC 1,035.00 JUL'23 LANDSCAPE INSPECTION SERVICESRICHARD FISHER ASSOCIATES 2,915.64 ENGINEERING (GENERAL) TOTAL: 4,985.64

STREET MAINTENANCE
JUL'23 PVM STREET MAINTENANCE MOE TAXPV MAINTENANCE INC 15,602.70 JUL'23 GOLF DRIVE PAVER REPAIRPV MAINTENANCE INC 8,886.97 STREET MAINTENANCE TOTAL: 24,489.67

LAW ENFORCEMENT-CONTRACT
AUG'23 LAW ENFORCEMENT CONTRACTCOUNTY OF ORANGE 814,017.58 LAW ENFORCEMENT-CONTRACT TOTAL: 814,017.58

LAW ENFORCEMENT-OTHER
JUL'23 BMW REPAIRS TIRES BRAKES AND LEVEL 1 SVCSEAVCO INC 1,842.06 18 Description (Item)Vendor Name Amount
BRASS NAMEPLATES-MERRILL BARCELOS BOYNE THOMASJ&M TROPHIES INC 122.30 BRASS NAME PLATE ASUNCIONJ&M TROPHIES INC 17.24
JUL'23 BLACK PRINTER INK DRY ERASE CLEANER MARKERSSTAPLES ADVANTAGE 176.59 JUN'23 MOTORCYCLE FUEL - AVPSVOYAGER FLEET SYSTEMS INC 588.95 RD 7/07 CHEVRON CAR WASH UNIT 2717US BANK PURCHASING CARD PROGRAM 28.99 RD 6/22 THE TOLL ROADSUS BANK PURCHASING CARD PROGRAM 575.00 RD 6/24 CHEVRON CAR WASH UNIT 2717US BANK PURCHASING CARD PROGRAM 27.99 RD 6/25 HOMED DEPOT-BATTERIES-REMOTES-CSO PAL SGTUS BANK PURCHASING CARD PROGRAM 79.97 RD 7/18 BIG O TIRES BATTERY AND OIL UNIT 8101US BANK PURCHASING CARD PROGRAM 652.52 RD 7/19 BIG O TIRE-BATTERY-OIL-NEW TIRE UNIT 8102US BANK PURCHASING CARD PROGRAM 839.66 RD 7/21 BRUEGGERS BAGELS ITEMS COMP STAT QTR MTGUS BANK PURCHASING CARD PROGRAM 100.16 RD 7/3 BOARD AND BREW SPECIAL EVENT ITEMS JULY 4THUS BANK PURCHASING CARD PROGRAM 210.11 RD 7/04 RALPHS SPECIAL EVENT ITEMS JULY 4THUS BANK PURCHASING CARD PROGRAM 44.73 RD 7/03 COSTCO SPECIAL EVENT ITEMS JULY 4THUS BANK PURCHASING CARD PROGRAM 88.72 LAW ENFORCEMENT-OTHER TOTAL: 5,394.99

ANIMAL CONTROL
JUL-SEP'23 ANIMAL CARE SERVICESCITY OF MISSION VIEJO 118,373.00 ANIMAL CONTROL TOTAL: 118,373.00
EOC
READY GUIDE PRINTINGADVANTAGE MAILING, LLC 3,089.41
FY22-23 SONITROL ADD INTRUSION INDOOR SIREN PANICSONITROL ORANGE COUNTY LLC 4,980.00 JUL'23 EOC SUPPLIESSTAPLES ADVANTAGE 127.33
EOC TOTAL: 8,196.74
GENERAL FUND TOTAL: 1,091,647.36
102 - GEN. FD-CITY HALL

NON-DEPARTMENTAL
JUL'23 CITY HALL ACCESS CONTROLSONITROL ORANGE COUNTY LLC 580.38 JUL'23 CITY HALL INTRUSION DETECTIONSONITROL ORANGE COUNTY LLC 299.04 JUL'23 CH INTRUSION DETECTION ADDED SERVICESONITROL ORANGE COUNTY LLC 95.20 AUG'23 CITY HALL INTRUSION DETECTIONSONITROL ORANGE COUNTY LLC 367.04 AUG'23 CITY HALL ACCESS CONTROLSONITROL ORANGE COUNTY LLC 580.38 AUG'23 CH-ELEVATOR MAINTENANCETHURSTON ELEVATOR CONCEPTS INC 134.00 JUL'23 MTR#2180 CITY HALLTHE GAS COMPANY 71.22
JUL'23 ACCT#7189 CITY HALLSO CAL EDISON 10,451.53
NON-DEPARTMENTAL TOTAL: 12,578.79
GEN. FD-CITY HALL TOTAL: 12,578.79
103 - GF-AV RECREATION SERVICES
REFUND FOR WRONG CARD CHARGEGLENDA SINO-CRUZ 180.00
REFUND FOR WRONG CARD CHARGEGLENDA SINO-CRUZ 20.00
200.00

RECREATION SERVICES
JUL'23 AVR-ALARM/POTS LINEAT&T 737.53
AUG'23 AVR CASH COURIER SERVICEGARDAWORLD 413.62
JUL'23 REPLACING WAINSCOTING & REPAINT AREA-FARMUNITED BUILDING AND DEVELOPMENT SERVICES LLC 2,550.00 JUL'23 AMAZON BUSINESS ACCOUNT MEMBERSHIP FEEAMAZON CAPITAL SERVICES INC 192.87 JUL'23 AVCENTER AND AVQUATICS ACCESS CONTROLSONITROL ORANGE COUNTY LLC 119.24 JUL'23 AVR ACCESS CONTROLSONITROL ORANGE COUNTY LLC 510.07 AUG'23 AVCENTER AND AVQUATICS ACCESS CONTROLSONITROL ORANGE COUNTY LLC 119.24 AUG'23 AVRANCH ACCESS CONTROLSONITROL ORANGE COUNTY LLC 510.07 8/02/23 AVR BOTTLED WATER SERVICES_24 PACK X7DS SERVICES OF AMERICA, INC 78.32 JUL'23 AVR AND FARM JANITORIAL SERVICESTEAM ONE MANAGEMENT SERVICES 5,300.00 JUN'23 AVR EVENT SECURITY SERVICELYONS SECURITY SERVICE IN 3,210.00 JUL'23 AVR EVENT SECURITY SERVICESLYONS SECURITY SERVICE IN 3,285.00 02/18 REPAIR TO SEMEINS FIRE MONITORING SYSTEM-AVRSIEMENS INDUSTRY INC 2,205.00 SUM23-RSU010/RSU011/RSU012/RSU013/RSU042-27 PARTICROUND STAR WEST, LLC 2,446.20 SUMMER2023-RSU052 DOG TRAINING-2 PARTICPANTSCLICKSTART DOG TRAINING ACADEMY, LLC 444.00 SUMMER2023-RSU170 MUSIC (2ND HALF)-11 PARTICIPANTSMUSIC MOVES ACADEMY INC 445.50 SUMMER2023-RSU008 TENNIS-5 PARTICIPANTSJOHN DAVID ALLEN JR 132.00 SUMMER2023-BIN004-BIN006-BIN005-27 PARTICIPANTSBIONERDS 4,587.00 SUMMER2023-TTS008-TTS009-RSU030-32 PARTICIPANTSJENNIFER BALES 3,240.00 SUMMER2023-PWT008-/PWT007/PWT009-18 PARTICIPANTSTIMOTHY DANA BOWEN 2,898.00 19 Description (Item)Vendor Name Amount
SUMMER2023-BCL007-LMS007 BEACH CAMP-5 PARTICIPANTSBEELER AQUATICS, INC 969.60 SUMMER2023-CSC001/CSC002/CSC003-29 PARTICIPANTSCHALLENGER SPORTS CORP 4,293.60 SUMMER2023-CVA002 SPANISH CAMP-9 PARTICIPANTSCONVERSA INC 1,257.00 SUMMER2023-VOC004 VOLLEYBALL CAMP-6 PARTICIPANTSEDWIN RATLEDGE 756.00 SUMMER2023-PAK007/PAM007 SWIM CAMP-22 PARTICIPANTSPREMIER AQUATIC SERVICES 5,938.50 SUMMER2023-PAE23/25/18/21/46/44-54 PARTICIPANTSLAURELINDA HAUKSSON 8,657.40 SUM23 - PAB004/PAK008/PAM008 SWIM-31PARTICIPANTSPREMIER AQUATIC SERVICES 8,854.50 SUMMER2023-CKC006 CULINARY KIDS-27 PARTICIPANTSCULINARY COOKINGS KIDS LLC 3,240.00 SUMMER2023-RSU163 WATERCOLOR-10 PARTICIPANTSERNA VAN DYK 210.00 SUM23-PAE040/058/061/LATE/008/063/043-52 PARTICIPALAURELINDA HAUKSSON 9,380.00 SUMMER2023-BST003 SCIENCE-12 PARTICIPANTSBRAINSTORM STUDIOS, LLC 2,176.20 SUMMER2023-SKY006 MULTISPORT CAMP-8 PARTICIPANTSSKYHAWKS SPORTS ACADEMY, INC 883.20 SUMMER2023-JAT003 TENNIS CAMP-18 PARTICIPANTSJOHN DAVID ALLEN JR 1,123.20 SUMMER2023-SKT005/SKT006 SKATEBOARD-16 PARTICIPANTCORAL BAY HOME LOANS 2,403.00 SUMMER2023-BTS008/BTS009 BASKETBALL-19 PARTICIPANTBREAKTHROUGH SPORTS LLC 2,913.60 SUMMER2023-BCL008/LMS008 BEACH CAMP-7 PARTICIPANTSBEELER AQUATICS, INC 1,532.80 SUMMER2023-CKC007 CULINARY KIDS-27 PARTICIPANTSCULINARY COOKINGS KIDS LLC 3,255.00 SUMMER2023-RSU161 WATERCOLOR-4 PARTICIPANTSERNA VAN DYK 84.00 SUMMER2023-RSU031 STORYTIME-7 PARTICIPANTSJENNIFER BALES 105.00 SUMMER2023-RSU113 PICKLEBALL-6 PARTICIPANTSL & O ALISO VIEJO, LLC 273.00 JUL-SEP'23 QUARTERLY AQUAPONICS MAINT. FARMHASA INC 440.00 JUL'23 AVR GOTO VOIP SERVICE & SUPPORTGOTO COMMUNICATIONS 1,990.75 AUG'23 AVR GOTO VOIP SERVICE & SUPPORTGOTO COMMUNICATIONS 663.58 JUL'23 O365 AVR O365 - LICENSES & SUPPORTTANGENT COMPUTERS INC 529.39 JB 7/13 PIRATES DINNER ADV. CDC EXCURSIONUS BANK PURCHASING CARD PROGRAM 826.07 JB 07/19 MOVIE CDC EXCURSIONUS BANK PURCHASING CARD PROGRAM 520.50 JB 7/06 JOHN'S INCREDIBLE PIZZA CDC EXCURSIONUS BANK PURCHASING CARD PROGRAM 559.48 JB 7/20 DAVE & BUSTERS CDC EXCURSIONUS BANK PURCHASING CARD PROGRAM 210.00 JB 7/20 MOVIE REFUND TICKET CDC EXCURSIONUS BANK PURCHASING CARD PROGRAM (13.50) JB 6/29 SUBWAY WK 4 CDCUS BANK PURCHASING CARD PROGRAM 30.15 JB 7/19 SUBWAY CDCUS BANK PURCHASING CARD PROGRAM 30.15 JUL'23 ACCT#4551 FARMSO CAL EDISON 1,084.22
JUL'23 ACCT#6247 AVRSO CAL EDISON 5,769.16
RECREATION SERVICES TOTAL: 104,369.21
GF-AV RECREATION SERVICES TOTAL: 104,569.21
203 - GAS TAX

TRAFFIC ENGINEERING
JUL'23 STORM DRAIN CONDITION ASSESSMENTWOOD RODGERS, INC 1,145.00 FY23-24 ASSET MGMT LUCITY SUBSCRIPTIONCENTRALSQUARE TECHNOLOGIES 18,565.31 TRAFFIC ENGINEERING TOTAL: 19,710.31

STREET MAINTENANCE
JUL'23 PVM STREET MAINTENANCE GAS TAXPV MAINTENANCE INC 19,069.97 JUL'23 STREET SWEEPING SERVICESSCA OF CA LLC 8,668.66
JUL'23 DATABASE MAIN + 35 TICKETSUNDERGROUND SERVICE ALERT OF SOUTHERN CA 71.25 APR'21-JUN'23 ACCT#6953 ST LTS/TRFIC CTRLR TRUE-UPSAN DIEGO GAS & ELECTRIC 2,419.50 JUL'23 ACCT#2125 GS1 MEDIANSSO CAL EDISON 61.16
STREET LIGHTS AND TRAFFIC CONTROLLERS SCESO CAL EDISON 1,347.06 STREET LIGHTS AND TRAFFIC CONTROLLERS SCESO CAL EDISON 17,098.92 STREET LIGHTS AND TRAFFIC CONTROLLERS SCESO CAL EDISON 3,825.78 JUN'23 ACCT#6953 ST LIGHTS & TRAFFIC CTRLRSAN DIEGO GAS & ELECTRIC 2,922.56 STREET MAINTENANCE TOTAL: 55,484.86
GAS TAX TOTAL: 75,195.17
204 - MEASURE M

GEN-MEASURE M
JUL'23 SMP TRANSPORTATION SERVICESCABCO YELLOW INC 1,960.00 GEN-MEASURE M TOTAL: 1,960.00
MEASURE M TOTAL: 1,960.00
215 - PUBLIC SAFETY GRANTS

LAW ENFORCEMENT-OTHER
AUG'23 AUTOMATED FINGERPRINT IDENTIFICATION SYSTEMCOUNTY OF ORANGE 1,843.00 20 Description (Item)Vendor Name Amount
AUG'23 PUBLIC SAFETY EQUIPMENTCOUNTY OF ORANGE 5,932.50 JUL-SEP'23 800 MHZ COST ALLOCATIONCOUNTY OF ORANGE 6,873.00 LAW ENFORCEMENT-OTHER TOTAL: 14,648.50
PUBLIC SAFETY GRANTS TOTAL: 14,648.50
225 - INTEGRATED WASTE MGMT FD

GEN-BEV CONTAINER RECYCLE
JUL'23 DRINKING FOUNTAIN_IGLESIA_UNITED BLD & DEVUNITED BUILDING AND DEVELOPMENT SERVICES LLC 4,395.00 GEN-BEV CONTAINER RECYCLE TOTAL: 4,395.00
INTEGRATED WASTE MGMT FD TOTAL: 4,395.00
231 - OTHER GRANTS

OTHER GRANTS
JUL'23 SOLAR APP IMPLEMENTATIONGO LIVE TECHNOLOGY INC 540.00 OTHER GRANTS TOTAL: 540.00
OTHER GRANTS TOTAL: 540.00
241 - TECHNOLOGY FUND

GEN-TECHNOLOGY GRANTS
JUL-SEP'23 GRANICUS WEBSTREAMINGGRANICUS INC 4,171.93
GEN-TECHNOLOGY GRANTS TOTAL: 4,171.93
TECHNOLOGY FUND TOTAL: 4,171.93
251 - FEDERAL GRANTS

OTHER GRANTS
JUL'23 HAZARD MITIGATION CONSTULTANT SERVICESATLAS PLANNING SOLUTIONS 7,875.00 OTHER GRANTS TOTAL: 7,875.00

GEN-FEDERAL GRANT
CDBG-CV SMALL BUSINESS GRANT ACTIVITY ID #19NAVIKA USA INC 7,500.00 JAN-MAR'23 COVID RELIEF HUNGER & HOMELESS PREVENTSOUTH COUNTY OUTREACH 1,880.82 GEN-FEDERAL GRANT TOTAL: 9,380.82
FEDERAL GRANTS TOTAL: 17,255.82
261 - CITY FAC.-AQUATIC CENTER
JUL'23- AQC MANAGEMENT-RETENTION FEESPREMIER AQUATIC SERVICES (1,208.30) AUG'23 AQC MANAGEMENT RETENTION FEESPREMIER AQUATIC SERVICES (1,208.30) -2,416.60

GEN-AQUATIC CENTER
AUG'23 AQC CASH COURIER SERVICEGARDAWORLD 476.24
JUL'23- AQC MANAGEMENT FEESPREMIER AQUATIC SERVICES 12,083.00 AUG'23 AQC MANAGEMENT FEESPREMIER AQUATIC SERVICES 12,083.00 MAY'23 AQC JANITORIAL SERVICESTEAM ONE MANAGEMENT SERVICES 2,100.00 JUN'23 AQC POOL CHEMICALS CHLORINE & ACIDHASA INC 1,427.57 JUL'23 AQC POOL CHEMICALS - ACIDHASA INC 452.59
JUL'23 AQC POOL CHEMICALS - CHLORINEHASA INC 669.28
JUL'23 AQC POOL CHEMICALS CHLORINE & ACIDHASA INC 1,915.50 AUG'23 AQC POOL CHEMICALS CHLORINEHASA INC 862.70
HAZMAT DISCLOSE AQC_31 SANTA BARBARA_OC ENV HEALTHCOUNTY OF ORANGE 224.00 TANK MONITOR AQC_29 SANTA BARBARA_OC ENV HEALTHCOUNTY OF ORANGE 270.00 JUL'23 MTR#2349 AQCTHE GAS COMPANY 1,020.00
GEN-AQUATIC CENTER TOTAL: 33,583.88
CITY FAC.-AQUATIC CENTER TOTAL: 31,167.28
21 Description (Item)Vendor Name Amount
331 - CAPITAL IMPROVEMENTS

CAPITAL IMPROVEMENTS
JUL'22-MAY'23 AVR HISTORICAL CONSULTINGJANET OSTASHAY 3,835.00 CAPITAL IMPROVEMENTS TOTAL: 3,835.00
CAPITAL IMPROVEMENTS TOTAL: 3,835.00
GRAND TOTAL: 1,361,964.06
Fund Summary
Payment AmountFund Expense Amount
101 - GENERAL FUND 1,091,647.36 1,091,647.36
102 - GEN. FD-CITY HALL 12,578.79 12,578.79
103 - GF-AV RECREATION SERVICES 104,569.21 104,569.21
203 - GAS TAX 75,195.17 75,195.17
204 - MEASURE M 1,960.00 1,960.00
215 - PUBLIC SAFETY GRANTS 14,648.50 14,648.50
225 - INTEGRATED WASTE MGMT FD 4,395.00 4,395.00
231 - OTHER GRANTS 540.00 540.00
241 - TECHNOLOGY FUND 4,171.93 4,171.93
251 - FEDERAL GRANTS 17,255.82 17,255.82
261 - CITY FAC.-AQUATIC CENTER 31,167.28 31,167.28
331 - CAPITAL IMPROVEMENTS 3,835.00 3,835.00
1,361,964.06Grand Total: 1,361,964.06
22 Accounts Payable Payable Dates: 08/04/2023 - 08/17/2023 8/25/2023 11:59:47 AM Page 7 of 8
Report Summary
Fund Summary
Payment AmountFund
101 - GENERAL FUND 1,091,647.36
102 - GEN. FD-CITY HALL 12,578.79
103 - GF-AV RECREATION SERVICES 104,569.21
203 - GAS TAX 75,195.17
204 - MEASURE M 1,960.00
215 - PUBLIC SAFETY GRANTS 14,648.50
225 - INTEGRATED WASTE MGMT FD 4,395.00
231 - OTHER GRANTS 540.00
241 - TECHNOLOGY FUND 4,171.93
251 - FEDERAL GRANTS 17,255.82
261 - CITY FAC.-AQUATIC CENTER 31,167.28
331 - CAPITAL IMPROVEMENTS 3,835.00
1,361,964.06Grand Total:

Account Summary
Payment AmountAccount Number Account Name
101-2505-000 DENTAL INSURANCE PAY 2,224.18
101-2508-000 VISION INSURANCE PAYA 353.06
101-2601-000 REFUNDABLE DEPOSIT 3,000.00
101-2606-000 C & D DEPOSIT 500.00
101-36420 SMIP 2,918.38
101-36425 CASP CERT/TRNG 112.40
101-36430 BUILDING STANDARD FE 647.10
101-4-1501-4520-000 MTGS/CONF./TRNG & D 89.28
101-4-1503-4309-000 OTHER CONTRACTUAL S 186.00
101-4-1503-4601-000 SUPPLIES 45.65
101-4-1601-4305-000 TECHNOLOGY SERVICES 4,000.00
101-4-1601-4734-000 CODIFICATION 1,240.00
101-4-2501-4301-000 PROFESSIONAL SERVICE 4,947.80
101-4-2501-4309-000 OTHER CONTRACTUAL S 511.25
101-4-2501-4601-000 SUPPLIES 66.99
101-4-3101-4305-000 TECHNOLOGY SERVICES 6,439.89
101-4-3101-4481-000 COMPUTER EXPENSE 34,552.77
101-4-3101-4520-000 MTGS/CONF./TRNG & D 5,000.00
101-4-3501-4421-000 EQUIPMENT RENTAL 2,401.21
101-4-3501-4431-000 BUILDING & GROUND M 479.00
101-4-3501-4471-000 RENT 1,132.86
101-4-3501-4512-000 POSTAGE 511.10
101-4-3501-4513-000 PRINTING 659.35
101-4-3501-4516-000 FUEL 544.89
101-4-3501-4521-000 MEMBERSHIP & DUES 10,857.60
101-4-3501-4522-000 INSURANCE EXPENSES 2,140.00
101-4-3501-4553-000 COMMUNITY BRANDIN 1,400.00
101-4-3501-4601-000 SUPPLIES 381.19
101-4-4101-4524-000 RECREATION-SENIOR TR 490.00
101-4-4101-4527-000 REC-CITY SPECIAL EVENT 24,549.83
101-4-4102-4411-000 UTILITIES 174.05
101-4-4102-4431-000 BUILDING & GROUND M 216.00
101-4-4103-4309-000 OTHER CONTRACTUAL S 150.00
101-4-4103-4411-000 UTILITIES 3,014.55
101-4-4103-4431-000 BUILDING & GROUND M 208.36
101-4-4401-4532-000 SPECIAL PROJECTS 45.00
101-4-4501-4471-000 RENT 2,070.00
101-4-4501-4741-000 C.S-CITY ENGINEERING 2,915.64
101-4-4503-4771-000 C.S-STREET MAINTENAN 24,489.67
101-4-5101-4308-000 LAW ENFORCEMENT 814,017.58
101-4-5102-4516-000 FUEL 1,220.93
23 Accounts Payable Payable Dates: 08/04/2023 - 08/17/2023 8/25/2023 11:59:47 AM Page 8 of 8
Account Summary
Payment AmountAccount Number Account Name
101-4-5102-4517-000 VEHICLE MAINTENANCE 3,414.21
101-4-5102-4520-000 MTGS/CONF./TRNG & D 443.72
101-4-5102-4612-000 OPERATING SUPPLIES 316.13
101-4-5301-4722-000 C.S-ANIMAL CARE SERVI 118,373.00
101-4-5401-4601-000 SUPPLIES 127.33
101-4-5401-4612-000 OPERATING SUPPLIES 8,069.41
102-4-3501-4411-000 UTILITIES 10,522.75
102-4-3501-4431-000 BUILDING & GROUND M 2,056.04
103-34130 FACILITY RENTAL 200.00
103-4-4105-4305-000 TECHNOLOGY SERVICES 5,372.74
103-4-4105-4309-000 OTHER CONTRACTUAL S 72,498.30
103-4-4105-4411-000 UTILITIES 5,769.16
103-4-4105-4431-000 BUILDING & GROUND M 14,000.00
103-4-4105-4451-000 FARM OPERATING EXPE 4,074.22
103-4-4105-4561-000 TAXES/FEES/PERMITS 413.62
103-4-4105-4570-000 CITY CAMP EXPENSE 2,162.85
103-4-4105-4601-000 SUPPLIES 78.32
203-4-4502-4301-000 PROFESSIONAL SERVICE 19,710.31
203-4-4503-4411-000 UTILITIES 27,674.98
203-4-4503-4771-000 C.S-STREET MAINTENAN 19,141.22
203-4-4503-4772-000 C.S-STREET SWEEPING 8,668.66
204-4-6104-4309-000 OTHER CONTRACTUAL S 1,960.00
215-4-5102-4803-000 PUBLIC SAFETY EQUIPM 14,648.50
225-4-6125-4309-000 OTHER CONTRACTUAL S 4,395.00
231-4-6131-4309-000 OTHER CONTRACTUAL S 540.00
241-4-6141-4481-000 IT/COMPUTER EQUIPME 4,171.93
251-4-6131-4309-000 OTHER CONTRACTUAL S 7,875.00
251-4-6151-4309-000 OTHER CONTRACTUAL S 9,380.82
261-2103-000 RETENTIONS PAYABLE -2,416.60
261-4-6161-7411-000 UTILITIES 1,020.00
261-4-6161-7421-000 BUILDING & GROUND M 2,100.00
261-4-6161-7425-000 POOL MAINTENANCE 5,327.64
261-4-6161-7445-000 FEES & PERMITS 970.24
261-4-6161-7451-000 MANAGEMENT FEES 24,166.00
331-4-8701-5910-000 IMPROVEMENTS 3,835.00
Grand Total: 1,361,964.06
Project Account Summary
Payment AmountProject Account Key
**None** 1,337,827.84
0495910 3,835.00
10004309 7,875.00
10014309 540.00
9934527 342.55
9974570 2,162.85
CDBGCV4309 9,380.82
Grand Total: 1,361,964.06
24 City of Aliso Viejo

AGENDA ITEM
DATE: September 6, 2023
TO: Mayor and City Council
FROM: Ann Eifert, Director of Financial Services/City Treasurer SUBJECT: TREASURER’S STATEMENT – JULY 2023
Recommended Action:

Receive and file the July 2023 Treasurer’s Statement.

Fiscal Impact:

No Fiscal Impact.

Background:

Per City policy, the Finance Department presents the monthly Treasurer’s Statement for the City Council’s review. This statement shows the cash balances for the various funds, with a breakdown of bank account balances, investment account balances and the effective yield earned from investments.

Discussion:

The City’s portfolio consists of investments in Certificates of Deposits, US Treasuries, US Federal Agencies, Corporate Bonds, and Local Agency Investment Fund (LAIF). All funds invested with LAIF are available for withdrawal within 24 hours.

The Treasurer’s Statement provides information regarding the City’s investment portfolio and activity during the reporting month. The City’s investment portfolio is in compliance with all government codes as well as the City’s investment policy. Interest is credited to the City’s bank account monthly and allocated among the City’s funds. The current portfolio provides sufficient cash flow liquidity to meet the upcoming operating expenses and spending requirements for the next 6 months.

Attachment:

1. July 2023 Treasurer’s Statement
25 TREASURER'S MONTHLY CASH STATEMENT

BEGINNING TRANSFERS ENDING

BALANCE RECEIPTS DISBURSEMENTS IN (OUT) BALANCE
GENERAL FUND 4,571,811.52 $ 4,488,924.98 $ 4,953,307.72 $ (126,583.62) $ 3,980,845.16 $ TCRF 68,861.61 $ (3,500.00) 65,361.61 GAS TAX FUND 841,986.57 $ 115,391.28 243,176.68 714,201.17 MEASURE M 932,259.76 $ 156,308.99 (146,250.00) 942,318.75 SB1-RMRA 464,794.85 $ 103,846.33 (4,796.89) 563,844.29 PUBLIC SAFETY GRANTS 190,204.31 $ 13,818.76 176,385.55 (1) AIR QUALITY IMPRVMNT FD 1,194,481.07$ 17,000.00 1,211,481.07 INTEGRATED WASTE MGMT FD 94,893.51$ 94,893.51 OTHER GRANTS (139,453.70) $ (16,194.28) (155,647.98) TECHNOLOGY GRANT 288,222.14 $ 2,876.02 444.96 290,653.20 DEVELOPMENT IMPACT 1, 349,361.63$ 1,349,361.63
FEDERAL GRANTS (46,258.34) $ 6,200.50 (1,410.00) (53,868.84) CITY FACILITY - AV CTR 179,758.92 $ 179,758.92 CITY FACILITY - AQUATIC CTR (161,777.70)$ 127,912.53 101,670.05 (135,535.22) STREET IMPROVEMENTS (105,821.21)$ 13,209.95 170,741.17 51,710.01 (2) CAPITAL IMPROVEMENTS (38,304.72)$ 47,630.62 114,530.34 28,595.00 (2) STORM WATER (3,846.66) $ 7,016.05 19,693.50 13,463.28 (3,060.83) (2) COP CAPITAL - $ - (2) COP 0.00 $ 0.00
AV RANCH FOUNDATION 100.00 $ 100.00
CFD 2005-01 (8,420.45) $ 30,805.92 33,279.37 (10,893.90) RENEWABLE FARMS 66,113.87 $ 5,451.35 35,708.50 35,856.72 COMMUNITY TRUST 5,412.68 $ 150.00 5,562.68 TOTALS 9,744,379.66 $ 5,055,683.45 $ 5,468,140.61 $ (0.00) $ 9,331,922.50$ SUMMARY OF CASH:

DEMAND DEPOSITS: GENERAL ACCOUNT 2,079,337.62 $

SAVINGS ACCOUNT: MONEY MARKET 25,973.32 $
INVESTMENTS: LOCAL AG ENCY INVESTMENT FD 7,226,611.56$
TOTAL CASH 9,331,922.50 $
Years to Maturity for July 2023 1.52
Weighted Average Yield for July 2023 3.370%
All investments are placed in accordance with the City of Aliso Viejo's Investment Policy.

The above summary provides sufficient cash flow liquidity to meet the next six month's estimated expenditures.

Other monies held include Cash with Fiscal Agent, Investments, Payroll and AV Center. 36,627,167.01$ Cash With Fiscal Agent COPS/CFD 2005-01 4,899,004.11
Cash With Investment Advisor City Investments 29,847,851.37 AV Center 1,495,106.23
PR Account 382,446.92
Petty Cash 2,758.38
GRAND TOTAL OF CITY FUNDS 45,959,089.51 $
(1) Public Safety Grant includes the MDC and PVS Program Costs budgeted with SLESF funds. (2) Transfers in and out are done on a quarterly basis.

Street Improvements include the Slurry Seal, Traffic Management and Street Improvement Projects.

Capital Improvements include City Hall, AV Ranch, and other city facilities.

Storm Water includes the Dairy Fork and Wood Canyon Emergent Wetland Project.

CITY OF ALISO VIEJO
July 31, 2023
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P.O. Box 942809
Sacramento, CA 94209-0001
(916) 653-3001

CITY OF ALISO VIEJO

DIRECTOR OF FINANCIAL SVCS/ CITY TREAS
12 JOURNEY , #100
ALISO VIEJO, CA 92656
Account Number: 98-30-007
July 2023 Statement
Effective
Date
Transaction
Date
Tran
Type Confirm
Number
Web
Confirm
Number Authorized Caller Amount
7/14/2023 7/19/2023 QRD 1736091 N/A SYSTEM 51,088.65
7/18/2023 7/18/2023 RW 1734024 1694408 ANN EIFERT -500,000.00 7/25/2023 7/25/2023 RD 1736675 1697053 ANN EIFERT 500,000.00 Account Summary
Total Deposit: 551,088.65 Beginning Balance: 7,175,522.91 Total Withdrawal: -500,000.00 Ending Balance: 7,226,611.56 33 July 3.305**
June 3.167
May 2.993
April 2.870
March 2.831
February 2.624
PMIA Average Life(1): 260
LAIF Fair Value Factor(1): 0.984828499
PMIA Daily(1): 3.26
PMIA Quarter to Date(1): 3.01
LAIF Apportionment Rate(2): 3.15
LAIF Earnings Ratio(2): 0.00008636172883763
LAIF Administrative Cost(1)*: 0.06
Treasuries

63.08%
Agencies

21.77%
Certificates of
Deposit/Bank Notes

7.51%
Time
Deposits

2.85%
Commercial
Paper

4.33%
Corporate
Bonds

0.26%
Loans

0.20%
Notes: The apportionment rate includes interest earned on the CalPERS Supplemental Pension Payment pursuant to Government Code 20825 (c)(1) and interest earned on the Wildfire Fund loan pursuant to Public Utility Code 3288 (a). *The percentage of administrative cost equals the total administrative cost divided by the quarterly interest earnings. The law provides that administrative costs are not to exceed 5% of quarterly EARNINGS of the fund. However, if the 13-week Daily Treasury Bill Rate on the last day of the fiscal year is below 1%, then administrative costs shall not exceed 8% of quarterly EARNINGS of the fund for the subsequent fiscal year. ** Revised
Source:
(1) State of California, Office of the Treasurer
(2) State of Calfiornia, Office of the Controller
PMIA Average Monthly
Effective Yields(1)
PMIA/LAIF Performance Report
as of 08/04/23
Daily rates are now available here. View PMIA Daily Rates Quarterly Performance
Quarter Ended 06/30/23
Chart does not include $2,861,000.00 in mortgages, which equates to 0.002%. Percentages may not total 100% due to rounding.

Pooled Money Investment Account
Monthly Portfolio Composition (1)
06/30/23
$178.4 billion
34 City of Aliso Viejo

AGENDA ITEM
DATE: September 6, 2023
TO: Mayor and City Council
FROM: Shaun Pelletier, Director of Public Works / City Engineer SUBJECT: AGREEMENT WITH NV5, INC. FOR ON-CALL CIVIL ENGINEERING

SERVICES
______________________________________________________________________ Recommended Actions:

1. Approve a 3-year agreement with NV5, Inc. to perform on-call civil engineering services; and

2. Authorize the City Manager to execute a professional services agreement with NV5, Inc. for an amount of $50,000.

Fiscal Impact:

It is estimated that $50,000 may be needed for civil engineering services from FY 2023- 24 through FY 2026-27. These costs are built into capital project budgets or funded by developers for plan review. Funding sources are Measure M, Gas Tax, SB 1, developer fees, General Fund, and any awarded grants.

Background:

The City utilizes on-call civil engineering services to prepare plans, specifications, and estimates for various capital improvement projects, which may consist of road rehabilitation, median improvements, and facility improvements. In addition to this, the on-call civil engineering firm may provide plan checking and general municipal engineering services on an as-needed basis.

A request for proposals (RFP) was issued for on-call civil engineering services on February 16, 2023 and was advertised on the City website. On March 9, 2023, staff received eight (8) proposals for providing the requested services. Staff reviewed the proposals for their ability to perform the service, ability to meet time requirements, reference checks, and reasonableness of cost.
35

Page 2 of 2 ends

Staff ranked the firms as follows:

1. Engineering Resources of Southern California

2. NV5

3. Tait

4. Onward Engineering

5. WGZE

6. Quantum Consulting

7. IDS Group

8. Proactive Engineering
Discussion:

On June 7, 2023, Engineering Resources of Southern California (ERSC) was awarded an agreement for on-call Civil Engineering Services through this procurement.

Subsequent to this award, staff determined that ERSC may not be appropriately staffed for plan check services and therefore recommend awarding a second agreement to NV5, Inc. This will provide the City flexibility in the event one firm is unable or unsuited to perform any task listed under the scope of services. NV5, Inc. is recommended to perform on-call civil engineering services, particularly plan check services, because of the thoroughness of their work plan and their experience in providing similar services for other municipalities. NV5 is also familiar with the City and staff as they already provide on-call construction inspection and geotechnical services. The City has the option to renew the Agreement for two (2) additional one-year terms.

Attachment:

1. Agreement with NV5, Inc.
36 60367.01100\33488377.1

- 1 -

CITY OF ALISO VIEJO

PROFESSIONAL SERVICES AGREEMENT
FOR

ON-CALL CIVIL ENGINEERING SERVICES

1. PARTIES AND DATE.

This Agreement is made and entered into this day of , 20___, by and between the City of Aliso Viejo, a municipal corporation organized under the laws of the State of California with its principal place of business at 12 Journey, Suite 100, Aliso Viejo, California 92656 (“City”) and NV5, Inc., a corporation, with its principal place of business at 163 Technology Drive, Suite 100, Irvine, CA 92618 (“Consultant”). City and Consultant are sometimes individually referred to herein as “Party” and collectively as “Parties.”

2. RECITALS.

2.1 Consultant.

Consultant desires to perform and assume responsibility for the provision of professional Civil Engineering consultant services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing professio nal Civil Engineering consultant services to public clients, is licensed in the State of California, and is familiar with the plans of City.

2.2 Project.

City desires to engage Consultant to render such services for the On-Call Civil Engineering project (“Project”) as set forth in this Agreement.

3. TERMS.

3.1 Scope of Services and Term.

3.1.1 General Scope of Services . Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional Civil Engineering consultant services necessary for the Project (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall b e subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.

3.1.2 Term. The term of this Agreement shall be from July 1, 2023 to June 30, 2026, unless earlier terminated as provided herein. The City Manager shall have the unilateral option, at its sole discretion, to renew this Agreement annually for no more than tw o additional one-year terms. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines.

3.2 Responsibilities of Consultant.
37 60367.01100\33488377.1

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3.2.1 Control and Payment of Subordinates; Independent Contracto r. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contr actor basis and not as an employee.

Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respe cting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.

3.2.2 Schedule of Services.

3.2.2.1 Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit “B” attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical pers onnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant’s conformance with the Schedule, City shall respond to Consultant’s submittals in a timely manner. Upon request of City, Consultant shall provid e a more detailed schedule of anticipated performance to meet the Schedule of Services.

3.2.2.2 Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non -performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the Services, only to the extent such strikes and other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (5) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a p ublic agency applicable to the Services and Agreement.

3.2.2.3 Should a Force Majeure Event occur, the non -performing Party shall, within a reasonable time of being prevente d from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being 38 60367.01100\33488377.1

- 3 -

made to resume performance of this Agreement. Force Majeure Events and/or delays, regardless of the Party respons ible for the delay, shall not entitle Consultant to any additional compensation. Notwithstanding the foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.

3.2.3 Conformance to App licable Requirements . All work prepared by Consultant shall be subject to the approval of City.

3.2.4 Substitution of Key Personnel . Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. S hould one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the a dequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. The key personnel for performance of this Agreement are as follows: David Niknafs.

3.2.5 City’s Representative. The City hereby designates the City Manager, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on beha lf of the City for all purposes under this Contract. The City Manager hereby designates Public Works Director/City Engineer, or his or her designee, as the City’s contact for the implementation of the Services hereunder. Consultant shall not accept direc tion or orders from any person other than the City’s Representative or his or her designee.

3.2.6 Consultant’s Representative . Consultant hereby designates David Niknafs, or his or her designee, to act as its representative for the performance of this Agreement (“Consultant’s Representative”). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.

3.2.7 Coordination of Services . Consultant agrees to work closely with City staff in the performance of Services and shall be available to City’s staff, consultants and other staff at all reasonable times.

3.2.8 Standard of Care; Performance of Employees . Consultant shall perform all Services under this Agreemen t in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subconsultants have all licenses, 39 60367.01100\33488377.1

- 4 -

permits, qualifications and approvals of whatever nature that are legally required to perform the Services and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnific ation provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standar d of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or propert y, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re -employed to perform any of the Services or to work on the Project.

3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and s hall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to s uch laws, rules and regulations , Consultant s hall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

3.2.10 Insurance.

3.2.10.1 Time for Compliance . Consultant shall not commence Work under this Agreement until it has provided evidence satisfactory to the C ity that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section.

3.2.10.2 Types of Insurance Required . As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder and without limiting the indemnity provisions of the Agreement, the Consultant in parti al performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement, the following policies of insurance. If the existing policies do not meet the Insurance Requirements set forth he rein, Consultant agrees to amend, supplement or endorse the policies to do so.
(a) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office “occurrence” form CG 0001, with minim um limits of at least $1,000,000 per occurrence, and if written with an aggregate, the aggregate shall be double the per occurrence limit.

Defense costs shall be paid in addition to the limits.
40 60367.01100\33488377.1

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The policy shall contain no endorsements or provisions limiti ng coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to the Agreement.
(b) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering “Any Auto” (Symbol 1) with minimum limits of $1,000,000 each accident.
(c) Contractors Pollution Liability: (if necessary)
Contractors Pollution Liability Insurance covering all of the contractor’s operations to include onsite and offsite coverage for bodily injury (including death and mental anguish), property damage, defense costs and cleanup costs with minimum limits of $5 million per loss and $10 million total all losses. The po licy shall contain no endorsements or provisions limiting contractual liability or coverage for cross liability of claims or suits by one insured against another.

If coverage is written on a claims -made basis, the retroactive date shall precede the effecti ve date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least three (3) years from termination or expiration of this Agreement.
(d) Professional Liability: Professional L iability insurance with minimum limits of $1,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any ex clusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.).

- 6 -

3.2.10.3 Endorsements. Required insurance policies shall not be in compliance if they include any limiting provision or endorse ment that has not been submitted to the City for approval.
(a) The policy or policies of insurance required by Section 3.2.10.2 (a) Commercial General Liability and (c) Contractor’s Pollution Liability shall be endorsed to provide the following:
(1) Additional Insured: The City of Aliso Viejo , its officials, officers, employees, agents, and volunteers shall be
additional insureds with regard to liability and defense of suits or claims arising out of the performance of the
Agreement.

Additional Insured Endorsements shall not (1) be restricted to “ongoing operations”; (2) exclude “contractual liability”; (3) restrict coverage to “sole” liability of Consultant; or (4) contain any other exclusions contrary to the Agreement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non -payment of premium.
(b) The policy or policies of insurance required by Section 3.2.10.2 (b) Automobile Liability and (d) Professional Liability shall be endorsed to provide the following:
(1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non -payment of premium.
(c) The policy or policies of insurance required by Section 3.2.10.2 (e) Workers’ Compensation shall be endorsed to provide the
following:
(1) Waiver of Subrogation : A waiver of subrogation stating that the insurer waives all rights of subrogation against the indemnified parties.
(2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non -payment of premium.
42 60367.01100\33488377.1

- 7 -

3.2.10.4 Primary and Non -Contributing Insurance . All insurance coverages shall be primary and any other insurance, deductible, or self -insurance maintained by the indemnified parties shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.

3.2.10.5 Waiver of Subrogation. Required insurance coverages shall not prohibit Consultant from waiving the right of subrogation prior to a loss. Consultant shall waive all subrogation rights against the indemnified parties. Policies shall contain or be endorsed to contain such provisions.

3.2.10.6 Deductible. Any deductible or self -insured retention must be approved in writing by the City and shall protect the indemnified parties in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.

3.2.10.7 Evidence of Insurance . The Consult ant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates and endorsements on forms approved by the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such i nsurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.

3.2.10.8 Failure to Maintain Coverage . Consultant agrees to suspend and cease all operations hereunder during such p eriod of time as the required insurance coverage is not in effect and evidence of insurance has not been furnished to the City. The City shall have the right to withhold any payment due Consultant until Consultant has fully complied with the insurance provisions of this Agreement.

In the event that the Consultant’s operations are suspended for failure to maintain required insurance coverage, the Consultant shall not be entitled to an extension of time for completion of the Services because of production lost during suspension.

3.2.10.9 Acceptability of Insurers . Each such policy shall be from a company or companies with a current A.M. Best’s rating of no less than A:VII and authorized to do business in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.

3.2.10.10 Insurance for Subconsultants . All Subconsultants shall be included as additional insureds under the Consultant’s policies, or the Consultant sha ll be responsible for causing Subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City as an Additional Insured to the Subconsultant’s policies.
43 60367.01100\33488377.1

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3.2.11 Safety. Consultant shall e xecute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions where applicable shall include, but shall not be limited to: (A) adequate li fe protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subconsultants, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.

3.3 Fees and Payments.

3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensatio n shall not exceed Fifty Thousand DOLLARS ($50,000.00) (“Total Compensation”) without written approval of City’s City Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

3.3.2 Payment of Compensation.

Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the in itial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within 45 days of receiving such statement, review the statement and pay all non-disputed and approved charges thereon.

3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City.

3.3.4 Extra Work . At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, “Extra Work” means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.

Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.

3.3.5 Prevailing Wages; DIR Registration.

If the Services are being performed as part of an applicable “public works” or “maintenance” 44 60367.01100\33488377.1

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project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to int erested parties upon request, and shall post copies at the Consultant’s principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the L abor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free an d harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.

3.3.5.2 If the Services are being performed as part of an applicable “public works” or “maintenance” project, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the project and require the same of any subconsultants. This project may also be subject to compliance monitoring and enforcement by the DIR. It shall b e Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR.

3.4 Accounting Records.

3.4.1 Maintenance and Inspection . Consultant shall maintain com plete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make tran scripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.

3.5 General Provisions.

3.5.1 Termination of Agreement.

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3.5.1.2 Effect of Termination . If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.

3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

3.5.2 Delivery of Notices . All notices permitted or req uired under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:

Consultant:

David Niknafs
Project Director
NV5, Inc.
163 Technology Drive, Suite 100
Irvine, CA 92618
City:

City of Aliso Viejo
12 Journey, Suite 100
Aliso Viejo, CA 92656
Attn: Shaun Pelletier, Public Works Department
Such notice shall be deemed made when personally delivered or when mailed, forty -eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

3.5.3 Ownership of Materials and Confidentiality.

3.5.3.1 Documents & Data; Licensing of Intellectual Property . This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes , which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subconsultants to agree in writing that City is granted a non -exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, 46 60367.01100\33488377.1

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provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk.

3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to C onsultant in connection with the performance of this Agreement shall be held confidential by Consultant.

Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services . Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the r elated industry shall be deemed confidential. Consultant shall not use City’s name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.

3.5.3.3 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information (“Proprietary Information”) unless the City’s legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information.

Consultant shall have five (5) working days after receipt of the Release Notice to give City written notice of Consultant’s objection to the City’s release of Proprietary Information.

Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of the Objection Notice unless either:
(1) Consultant fails to fully indemnify, defend (with City’s choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a f inal and non- appealable order by a court of competent jurisdiction requires that City release such information.

3.5.4 Fraud Policy . Consultant shall provide a copy of the City’s Fraud Prevention Policy to each of its employees assigned to perform Services under this Agreement.

Consultant shall submit to the City a statement signed by an authorized representative for Consultant certifying receipt of the City’s Fraud Prevention Policy. A finding by the City that any of Consultant’s employees have committed fraud against the City or have violated the City’s Fraud Prevention Policy shall be grounds for appropriate discipline, up to and including such employee’s removal from performance of this Agreement at City’s request and/or termination of this Agreement. Consul tant shall reimburse the City for any costs and expenses associated with fraud against the City.

3.5.5 Cooperation; Further Acts . The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.

3.5.6 Attorney’s Fees . If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this 47 60367.01100\33488377.1

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Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney’s fees and all other costs of such action.

3.5.7 Indemnification.

3.5.7.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant's Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorneys fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City .

Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by the Consultant or the City, its officials, officers, employees, agents or volunteers.

3.5.7.2 If Co nsultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a fin al adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.

3.5.8 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.

3.5.9 Governing Law . This Agreement shall be governed by the laws of the State of California. Venue shall be in Orange County.

3.5.10 Time of Essence . Time is of the essence for each and every provision of this Agreement.

3.6 City’s Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.

3.7 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.

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hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.

3.9 Construction; References; Captions . Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly f or or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwi se specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.

3.10 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

3.11 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.

3.12 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.

3.13 Invalidity; Severability . If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.14 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona f ide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability.

For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

3.15 Equal Opportunity Employment . Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, c olor, national origin, handicap, ancestry, sex or age. Such non -discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination . Consultant shall also comply with all relevant provisions of City’s Minority 49 60367.01100\33488377.1

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Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.

3.16 Labor Certification . By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self - insurance in accordance with the pro visions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.

3.17 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.

3.18 Counterparts. This Agreement may be signed in counterparts, each of w hich shall constitute an original.

3.19 Declaration of Political Contributions. Consultant shall, throughout the term of this Agreement, submit to City an annual statement in writing declaring any political contributions of money, in-kind services, or loan made to any member of the City Council within the previous twelve-month period by the Consultant and all of Consultant’s employees, including any employee(s) that Consultant intends to assign to perform the Services described in this Agreement.

3.20 Subcontracting.

3.20.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
[Signatures on following page.]

50 60367.01100\33488377.1
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SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF ALISO VIEJO AND NV5, INC.

IN WITNESS WHEREOF, the parties have executed this Professional Services Agreement on this ____ day of __________, 2023.

CITY OF ALISO VIEJO
Approved:

By:

David Doyle
City Manager
ATTEST:

By: _______________________________
Mitzi Ortiz, MMC
City Clerk
APPROVED AS TO FORM:
______________________________
Best Best & Krieger LLP
City Attorney

APPROVED AS TO COMPLIANCE

WITH BUDGET
By:

Ann Eifert
Director of Financial Services
NV5, INC.
[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
By:

Its:

Printed Name:

By:

Its:

Printed Name:_________________________
Corporate Secretary
MaryJo O'Brien
Senior Vice President
Jeffrey M. Cooper
51 60367.01100\33488377.1
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CITY OF ALISO VIEJO

DECLARATION OF POLITICAL CONTRIBUTIONS
Using the space provided below, please list any political contributions of money, in -kind services, or loans made to any member of the City Council within the last twelve (12) months by Consultant and all of Consultant’s employees, including any employee(s) that applicant intends to assign to perform the work or services described in this Agreement:

To the best of my knowledge, I declare under penalty of perjury that the foregoing is true and was executed at:

City/County/State Date
Name of Business Print Name
Signature
NOTE: THIS DECLARATION IS INCLUDED AS PART OF THE AGREEMENT AND MUST BE SIGNED AND ATTACHED HERETO.

Irvine, Orange, California 05/15/2023
NV5, Inc. Jeffrey M. Cooper
None.
52 60367.01100\33488377.1
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CITY OF ALISO VIEJO

ACKNOWLEDGMENT OF RECEIPT OF FRAUD POLICY
I hereby acknowledge that I have received a copy of the City’s “Fraud Prevention Policy” dated October 1, 2008. I understand that I am to promptly read its contents and distribute copies to employees assigned to perform Services for the City of Aliso Viejo.

Name of Business Print Name
Signature
Date
05/15/2023
NV5, Inc. Jeffrey M. Cooper
53 60367.01100\33488377.1

A-1

EXHIBIT “A”

SCOPE OF SERVICES

DESIGN SERVICES
The Consultant’s scope of work will vary by project but may contain some or all of the following:

1. Site investigation.

2. Preliminary design.

3. Utility coordination.

4. Topographic surveys.

5. Environmental documentation.

6. Right-of-way acquisition plans.

7. Permitting.

8. Final design including plans , specifications, and estimates for public bidding including traffic control, civil design, structural design, irrigation and planting, and electrical.

9. Coordination with City’s Geotechnical Consultant.

10. Coordination with City’s Landscape Architect Consultant or an approved sub -consultant service include designing landscape plantings, hardscape, irrigation, and soil testing.

11. Design landscape lighting, power to irrigation controller s, and other electrical design as required.

12. Design structural features as required for bridges, storm drain sy stem, and vehicle or pedestrian/bicycle facilities.

13. Construction management support as necessary including responding to RFI, reviewing change order requests, conduct labor compliance interviews, attend construction meetings, and review invoices.

Median projects consist of constructing landscape medians in existing striped medians in arterial roadways. In general, the scope includes demolition of asphalt median, curb and gutter, landscape pla ntings, hardscape, irrigation, median l ighting, traffic control, and pavement striping.

Pavement rehabilitation projects generally include full depth replacement of failed areas, pavement grinding, asphalt overlay , detector loop replacement, raising utility structures, and striping. Geotechnical investigations, if required, utilizing core sampling, in -place strength testing, and laboratory testing to determine subgrade strength and recommendation for repairs shall be coordinated with the City’s Geotechnical Consultant.

Pedestrian/Bicycle faciliti es could include new paths, path enhancements, bridges, and other appurtenances related to these facilities.

54 60367.01100\33488377.1

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Site development projects generally include coordination with other architectural and/or landscape design firms for the detailed civil design of i mprovements such as grading, utilities, lighting, hardscape, parking and other infrastructure needs as required.

The City has recently been completing one to two overlay projects and one slurry seal project each fiscal year. Grant or other funding opportu nities may allow for additional projects, particularly for medians, pedestrian facilities, bicycle facilities, and site development. Projects may be added or deleted depending on the needs of the City.

Design Standards

All of the roadways in the City of Aliso Viejo were originally designed and constructed utilizing County of Orange standards. The requested improvements will continue to use County of Orange standards.

The “Greenbook” Standard Specifications for Public Works Construction and Caltrans Standard Specifications are used in the contract documents.

Deliverables

1. Plans. Plans shall be submitted at the 50%, 90%, 100%, and final documents completion stages. Title sheet, base sheets, typical sections, and conceptual plans within the project limits shall be included in the 50% submittal. Technical specifications and cost estimates shall be included with the 90% plans. 100% plans shall incorporate all comments. Two sets of plans 24” x 36” in size will be required for each submittal. Final document s shall be signed by the Engineer in responsible charge. Electronic copies of signed documents shall also be submitted.

2. Construction estimates. Estimates and quantity take-off shall be in Microsoft E xcel format for use by the City to advertise for bids.

Reimbursable Expenses

The items approved for reimbursable expenses are as follows:

1. Reproduction actual cost only.

2. Messenger Services actual cost only.

3. Materials actual cost only.

4. Mileage at current IRS Standard Mileage Rate.

Additional Services

Additional Services shall be computed at the actual hourly rates listed above.

Sub-Consultants

If City requires the Consultant to hire Sub -consultants to perform any additional services in addition to those mentioned in this exhibit, Consultant shall be compensated therefore 55 60367.01100\33488377.1

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at the Sub-consultant's actual hourly rates plus 10%. The City shall have the authority to review and approve the rates of any such consultants.

PLANCHECKING SERVICES

Improvement plan checking will include, but not be limited to, street, sewer, street lighting, structural (bridges, foundations, walls, etc.), striping, erosion control, drainage and traffic related plans (signal, signing and striping, traffic contro l, etc.). Hydrology and hydraulic calculations will be checked for sufficiency to verify that the drainage plans are adequate to provide for design runoff. Drainage plans and hydrology calculations will also be coordinated with the Orange County Flood Divi sion where necessary. Plans will be checked against soil and geotechnical reports, as well as SCAQMD dust control plans, and storm water pollution prevention plans. Sewer, water, and other utility plans prepared for other agencies will be reviewed for conf lict/consistency with City street and drainage plans. Traffic studies/analyses/reports review shall include traffic circulation, street signs, noise impacts, etc. and shall include the review of recommendations and accuracy. Check drawings and related documents for improvement plans to be constructed in the public right of way are prepared by either a private developer or, in some cases, by the City. Provide design review of site/grading, storm drain, sewer, water, and street plans and any associated techni cal reports for proposed private development or City projects and attend City design review meetings as necessary.

Subdivision maps and documents , including parcel and final tract maps, and other subdivision map act documents, will be checked to assure c ompliance with applicable provisions of the Subdivision Map Act, the City’s Conditions of Approval, Land Surveyor’s Act and any other applicable ordinances. There will be detailed checks made of such maps, including, but not limited to, review of survey do cumentation and title reports, lot and boundary closure, dedications and easement provisions, legal descriptions, completeness and accuracy of data notation, and necessary certifications of City staff. Plan checking/review may include any recordable instrument such as easements, lot line adjustments, dedications, vacations, parcel and tract maps, etc.

Grading Plans will be reviewed to ensure conformance with City codes, written policies, the City’s Grading Ordinance, the County of Orange Grading manual and standard specifications.

The review will also assure conformance with the approved Tentative Map and Conditions of Approval for the project. Hydrology and hydraulic calculations will be reviewed for conformance with the Orange County Flood Control District (ocflood.com) methodology for any proposed storm drain systems and detention basins. Grading Plans will be reviewed for compliance with the recommendations, specifications and details contained in the submitted soils report and to assure that all appropriate details are shown on the plans. Quantity calculations will be reviewed to assure accuracy and completeness. Precise Grading Plans will be checked to verify positive drainage to an approved outlet. Where deepened footings are required due to the lot grading, the extent and depth of the needed deepened footing will be clearly noted on each footprint. Erosion control measures for manufactured slopes will be reviewed to verify that the landscaping and irrigation measures are adequate. In addition, we will assure any interim 56 60367.01100\33488377.1

A-4

measures to control erosion until such time as the landscaping is viable and shown on the plan.

Engineering geology and geotechnical engineering reports will be reviewed. Provide the City staff with specific recommendations regarding th e acceptability of such reports and provide detailed review comments to bring the report in compliance with City requirements as it relates to all levels of development ranging from commercial additions to master planned communities

Erosion Control Plans will be reviewed to ensure erosion and sedimentation measures comply with the Best Management Practices listed in the Storm Water Pollution Prevention Plans, in compliance with NPDES and WQMP requirements.

Private Parking Lot Plans will be reviewed for a ll the above items and, in addition, will be checked to verify compliance with Title 24 accessibility requirements of the State Building Code, as well as the requirements of the Regional Drainage Area Management Plan. Quantity calculations will be reviewed for all projects to assure accuracy and completeness to verify appropriate bonding amounts.

Landscaping and Irrigation plans shall be coordinated with the City’s landscape plan check consultant for review of parks, parkways, medians, and all areas that have landscaping for compliance with documents reviewed and with the City’s Water Efficient Ordinance will be required.

City Standards and Specification Compliance: Documents shall be reviewed to ensure compliance with the City’s standards, specifications, procedures and standard drawings. The City currently uses the APWA Standard Plans for Public Works Construction and the Standard Specifications for Public Works Construction (Greenbook) as the City’s main standards. The City also has a boiler plate specifications package and uses other industry standards and practices as warranted. Knowledge of these industry (county, state and federal) standards is required.

Documents shall also be reviewed for compliance with the Americans with Disabilities Act (ADA). An evaluation shall be made for compliance with both the ADA Accessibility Guidelines for Buildings and Facilities (ADAAG) and Uniform Federal Accessibility Standards (UFAS).

Cost Estimate Review: Consultant shall review construction cost estimates with relation to quantities, unit prices, and consistency with construction documents such as plans and specifications. Estimates may originate with a developer and used as a basis for establishing surety/bonding amounts. Cost estimates may also originate with the City.

Water Quality/Drainage Studies: Review and recommend approval of various grading plans, Water Quality Management Plans (WQMPs), street improvement plans, storm drain plans, and hydrology studies for both public and private developments. Provide report preparation, inspections, prepare exhibits, as -needed assistance to develop and implement the City's Local Implementation Plan (LIP), technical support assistance, and database management as sociated with the National Pollutant Discharge Elimination System (NPDES) program to be in compliance with the Orange County MS4 Permit.

Web-Based Document Control: In an effort to streamline review times and costs to developers for overnight mailing, pr oject documents, such as developer submittals, Consultant review 57 60367.01100\33488377.1

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comments, and other documents, shall be shared through an electronic system via the internet and a secured sharing platform. Documents shall be available to City staff, developers, stake holders, other consultants, contractors, etc. as approved by the City. Each project shall have a secured access point with passwords provided to key persons with prior approval of the City.

For certain projects, the submittals will be in the form of hard copy /digital .pdf submittals. The City currently implementing an online plan checking platform and plans may also be transmitted through Blue Beam.

Turn-Around Schedule: From the time of pick-up of plans from the City to delivery back to the City, the Consul tant shall complete each plan check within the time specified as follows: First Check: Ten (10) working days Subsequent Checks: Five (5) working days

GENERAL MUNICIPAL ENGINEERING SERVICES

Provided a rate schedule showing available positions to provide various as -needed general services. Sample tasks may include, but are not limited to:
• Process engineering permits such as encroachment, grading, landscaping, and other permits.
• Tactfully respond to internal and external customer inquiries. Shall engage en gineering staff for review of responses.
• Process public records requests within 10 business days. • Assist in the tracking and accounting of project funds including revenue sources, expenditures, and project account shortfalls/surpluses.

Provide other engineering support services, as needed.
58 60367.01100\33488377.1

B-1

EXHIBIT “B”

SCHEDULE OF SERVICES
In the event that this Agreement is renewed pursuant to Section 3.1.2, the first renewal period shall be from July 1, 202 6 to June 30, 202 7. The second renewal period shall be from July 1, 2027 to June 30, 2028.
59 60367.01100\33488377.1
C-1

EXHIBIT “C”

COMPENSATION
In the event that this Agreement is renewed pursuant to Section 3.1.2, the rates set forth above may be adjusted each year at the time of renewal described in Exhibit “B” in accordance with the annual average Consumer Price Index of the prior calendar year , All Urban Consumers, Los Angeles-Long Beach-Anaheim up to a maximum percentage of five percent (5%). 60 Cost Proposal
Effective July 1, 2023 through June 30, 2026. After this time, NV5 will receive a rate increase of up to 5% for each yearly renewal beginning July 1, 2026.

ENGINEERING SERVICES HOURLY RATE**
Principal $240
Project Director $230
Senior Project Manager $220
Project Manager $200
Quality Assurance Manager $200
Traffic Engineer $225
Senior Structural Engineer $210
Structural Engineer $175
Senior Engineer $175
Project Engineer $135
Assistant Engineer $110
Engineering Technician $105
CADD Drafter $105
Administration $90
MUNICIPAL SERVICES HOURLY RATE**
Principal $240
Program/Project Director $230
Senior Project Manager $220
Project Manager $200
City Engineer $190
Assistant Project Manager $175
Plan Check Engineer III $185
Plan Check Engineer II $160
Plan Check Engineer I $135
Public Works Technician $90
Permit Technician $90
LANDSCAPE ARCHITECTURE HOURLY RATE**
Project Manager/Senior Landscape Architect $158
Landscape Architect $132
Landscape Designer $88
SURVEY SERVICES HOURLY RATE**
Principal $275
Associate $247
Manager $236
Senior Engineer/Planner/Scientist/Surveyor $184
Associate Engineer/Planner/Scientist/Surveyor $168
Assistant Engineer/Planner/Scientist/Surveyor $149
Junior Engineer/Planner/Scientist/Surveyor $131
Design Supervisor $163
City of Aliso Viejo | On-Call Civil Engineering Services NV5 Cost Proposal | 161 Cost Proposal
Effective July 1, 2023 through June 30, 2026. After this time, NV5 will receive a rate increase of up to 5% for each yearly renewal beginning July 1, 2026.

Sr. CADD Technician/Designer $160
CADD Technician III $149
CADD Technician II $126
CADD Technician I $115
GIS Analyst $149
GIS Technician I $110
Project Administrator $110
Project Assistant $95
Engineering Aide/Planning Aide $89
1-Person Survey Crew* $185
2-Person Survey Crew* $315
3-Person Survey Crew* $385
ENVIRONMENTAL TECHNICAL SERVICES HOURLY RATE**
Principal Technical Manager $225
Senior Project Manager III (Project Manager III) $210
Senior II (Project Manager II) $200
Senior I (Project Manager I) $190
Staff III (Engineer/Scientist III) $180
Staff II (Engineer/Scientist II) $170
Staff I (Engineer/Scientist I) $160
Associate III (Engineer/Scientist III) $145
Associate II (Engineer/Scientist II) $135
Associate I (Engineer/Scientist I) $130
Specialist III (Environmental Specialist III ) $115
Specialist II (Environmental Specialist II ) $100
Specialist I (Environmental Specialist I ) $95
Financial Analyst II (Project Accountant/Analyst) $105
Administrative I $75
Intern (Data Analyst) $70

REIMBURSABLE EXPENSES COST
Field Vehicles $100/day
Reproduction Cost
Consultant Services Cost
Delivery, Freight, Courier Cost
Agency Fees Cost
Commercial Travel Cost
* Assumes prevailing wages are applicable for field work. ** Regular rates. Work in excess of 8 hours and work on Saturdays will be billed at 1.5 times the regular rate. Work in excess of 12 hours and work on Sundays and Holidays will be billed at 2 times the regular rate.

City of Aliso Viejo | On-Call Civil Engineering Services NV5 Cost Proposal | 262 City of Aliso Viejo

AGENDA ITEM
DATE: September 6, 2023
TO: Mayor and City Council
FROM: So Kim, Community Development Director
SUBJECT: SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT

WITH RDA, LLC TO PROVIDE PLANNING CONSULTANT SERVICES
Recommended Action:

Approve and authorize the City Manager to execute a second amendment to the Professional Services Agreement with RDA, LLA to increase the total compensation by $65,000.

Fiscal Impact:

The cost for the services provided under the second amendment is $65,000. A total of $5,000 was already spent as part of the FY 2022-23 budget and the remaining $60,000 is available in the adopted FY 2023-24 budget.

Background:

In March 2022, the City Manager entered into a professional services agreement with RDA, LLC (“RDA”) to provide consulting services for the Town Center Vision Plan. In October 2022, the City Council approved an increase in the total compensation amount to $95,000.

On August 16, 2023, the City Council considered a request to execute a second amendment to the RDA agreement to increase the total compensation by $65,000. The City Council requested that the deliverables described in the original scope of work be provided and continued the item to September 6, 2023.

Discussion:

The original scope of work included the following deliverables:

TASK A - Records/Research/Field Study
Written summary of findings and recommendations, presentation and discussion. 63

Page 2 of 2 ends

 Preliminary Parking Analysis (Attachment 3) – This parking model is based on a hypothetical scenario that includes the existing commercial tenants and future development of the site.
 Financial Feasibility Study (Attachment 4) –This analysis compares the feasibility study that was completed by EPS in 2019 to RDA’s updated 2022 study based on a hypothetical development scenario.

TASK B — Strategy Presentation
 Extrapolated proforma including projected costs and income – This was completed but is not attached due to confidential content.  Presentation outline (Attachment 5) –This draft presentation is intended for the Aliso Viejo Town Center property owners to provide the history behind the Vision Plan, challenges and solutions, potential benefits, and next steps.

TASK C — Discussions with Property Owners
 Discussions and negotiations with property owners – RDA has been in constant communication with the Aliso Viejo Town Center property owners to create traction on the Vision Plan. Currently, the property owners are working on removing the existing encumbrances on their properties. The City is not directly involved in this step as the encumbrances are recorded on private agreements of which the City is not a party to. However, the City along with RDA are meeting with the Aliso Viejo Town Center board as well as certain property owners on a regular basis to assist as necessary in this step.

Until the encumbrances on the properties are removed, the Vision Plan cannot proceed.

It is difficult to anticipate when this step will be completed by the property owners. To maintain momentum and not lose sight of the progress to date, Staff recommends that the compensation amount for the RDA, LLC professional services agreement be increased by $65,000 to continue the efforts of the Town Center Vision Plan. The increased compensation amount includes the expended $5,000 for FY 2022-2023 and $60,000 for FY 2023-2024. No changes are proposed to the agreement term, which ends on June 30, 2025.

Attachments:

1. Original Professional Services Agreement with RDA, LLC

2. Second Amendment with RDA, LLC

3. Preliminary Parking Analysis

4. Financial Feasibility Study

5. Presentation Outline
64 CITY OF. ALISO VIEJO

PROFESSIONAL SERVICES AGREEMENT
FOR

PLANNING CONSULTANT SERVICES

1. PARTIES AND DATE.

JI
This Agreement is made and entered into this _%4 day of Moifc/}'%- , 2022, by and between the City of Aliso Viejo, a municipalcorporation organized under the laws of the State of California with its principalplaceof business at 12 Journey, Suite 100, Aliso Viejo, California 92656 (" City") and RDA, LLC, a California Limited Liability Company, with its principal place of business at 2125 S Cabrillo Ave, San Pedro, CA 90731 (" Consultant"). City and Consultant are sometimes individually referred to herein as " Party" and collectively as " Parties."

2. RECITALS.

2.1 Consultant.

Consultant desires to perform and assume responsibilityfor the provision of professional land use consultant services requiredby the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experiencedin providing professional land use consultant services to public clients, is licensed in the State of California, and is familiar with the plans of City.

2.2 Project.

City desires to engage Consultant to render such services for the professionalplanningand land use consulting related to the Aliso Viejo Town Center project (" Project") as set forth in this Agreement.

3. TERMS.

3.1 Scope of Services and Tenn.

3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional land use consultant services necessary for the Project (" Services"). The Services are more particularly described in Exhibit " A" attached hereto and incorporatedherein by reference. All Services shall be subject to, and performedin accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicablelocal, state and federal laws, rules and regulations.

3.1.2 Term. The term of this Agreement shall be from March 22, 2022, to June 30, 2025, unless earlier terminated as providedherein. The City Manager shall have the unilateral option, at its sole discretion, to renew this Agreement annually for no more than two additional one-year terms. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. 1-
60367.01100\33488377.1
65 3.2 Responsibilities of Consultant.

3.2.1 Control and Payment of Subordinates: IndependentContractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirementsof this Agreement. City retains Consultant on an independentcontractor basis and not as an employee.

Consultant shall complete, execute, and submit to City a Request for Taxpayer Identification Number and Certification ( IRS FormW-9) prior to commencement of any Services under this Agreement. Neither City, nor any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performanceof Services under this Agreement and as requiredby law. Consultant shall be responsible for all reports and obligations respectingsuch additional personnel, including, but not limited to: social security taxes, income tax withholding, unemploymentinsurance, disability insurance, and workers' compensation insurance.

3.2.2 Schedule of Services.

3.2.2.1 Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit " B" attached hereto and incorporatedherein by reference. Consultant represents that it has the professional and technical personnelrequiredto perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipatedperformance to meet the Schedule of Services.

3.2.2.2 Neither City nor Consultant shall be considered in default of this Agreementfor delays in performance caused by circumstances beyond the reasonable control of the non - performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party's performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; ( 3) orders of governmental authorities ( including, without limitation, unreasonable and unforeseeable delayin the issuance of permits or approvals by governmental authorities that are required for the Services); (4) strikes and other organized labor action occurring at the site and the effects thereof on the Services, only to the extent such strikes and other organized labor action are beyond the control of Consultant and its subcontractors, and to the extent the effects thereof cannot be avoided by use of replacement workers; and ( 5) pandemics, epidemics or quarantine restrictions. For purposes of this section, orders of governmental authorities," includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the Services and Agreement.
2-
60367.01100133488377.1
66 3.2.2.3 Should a Force Majeure Event occur, the non - performingParty shall, within a reasonable time of being preventedfrom performing, give written notice to the other Party describingthe circumstances preventingcontinued performanceand the efforts being made to resume performanceof this Agreement. Force MajeureEvents and/or delays, regardlessof the Party responsiblefor the delay, shall not entitle Consultant to any additional compensation.

Notwithstandingthe foregoing in this section, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.

3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.

3.2.4 Substitution of Key Personnel. Consultant has representedto City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnelof at least equalcompetence upon written approvalof City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City.

The key personnel for performance of this Agreement is as follows: Brian Cornelius.

3.2.5 City's Representative. The City herebydesignatesthe City Manager, or his or her designee, to act as its representativefor the performance of this Agreement (" City's Representative"). City's Representative shall have the power to act on behalf of the City for all purposes under this Contract. The City Manager hereby designatesOmar Dadabhoy, Community Development Director, or his or her designee, as the City's contact for the implementation of the Services hereunder. Consultant shall not accept direction or orders from any person other than the City's Representative or his or her designee.

3.2.6 Consultant's Representative. Consultant hereby designates Brian Cornelius, or his or her designee, to act as its representative for the performance of this Agreement Consultant's Representative"). Consultant's Representative shall have full authorityto represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.

3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times.

3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants 3-
60367.01100\33488377.1
67 shall have sufficient skill and experience to perform the Services assignedto them. Finally, Consultant represents that it, its employeesand subconsultants have all licenses, permits, qualificationsand approvalsof whatever nature that are legally requiredto perform the Services and that such licenses and approvalsshall be maintained throughout the term of this Agreement.

As provided for in the indemnification provisionsof this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employeeof the Consultant or its sub - consultants who is determined by the City to be uncooperative, incompetent, a threat to theadequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to performthe Services in a manner acceptableto the City, shall be promptly removed from the Projectby the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.

3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations, Consultant shall be solely responsiblefor all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

3.2.10 Insurance.

3.2.10.1 Time for Compliance. Consultant shall not commence Work under this Agreement until it has providedevidence satisfactoryto the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactoryto the City that the subconsultant has secured all insurance requiredunder this section.

3.2.10.2 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder and without limiting the indemnity provisions of the Agreement, the Consultant in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement, the following policies of insurance. If the existingpolicies do not meet the Insurance Requirementsset forth herein, Consultant agrees to amend, supplementor endorse the policies to do so.
a) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office " occurrence" form CG 0001, with minimum limits of at least $ 1,000,000 per occurrence, and if written with an aggregate, the aggregate shall be double the per occurrence limit.

Defense costs shall be paid in addition to the limits.
4-
60367.01100'33488377.1
68 The policy shall contain no endorsements or provisions limiting coverage for ( 1) contractual liability; ( 2) cross liability exclusion for claims or suits by one insured against another; or ( 3) contain any other exclusion contrary to the Agreement.
b) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering " Any Auto" ( Symbol 1) with minimum limits of 1,000,000 each accident.
c) Contractors Pollution Liability: [ Include only if there is a pollution liability exposure.]
Contractors Pollution Liability Insurance covering all of the contractor's operations to include onsite and offsite coverage for bodily injury ( including death and mental anguish), property damage, defense costs and cleanupcosts with minimum limits of $ 5 million per loss and $ 10 million total all losses. The policy shall contain no endorsements or provisionslimiting contractual liability or coverage for cross liabilityof claims or suits by one insured against another.

If coverage is written on a claims -made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least three ( 3) years from termination or expirationof this Agreement.
d) Professional Liability: Professional Liability insurance with minimum limits of $ 1,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed ( for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.).

If coverage is written on a claims - made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least three ( 3) years from termination or expirationof this Agreement.
e) Workers' Compensation: Workers' Compensation Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $ 1,000,000 per accident for bodily injury and disease.
5-
60367.01100\3348B377.1
69 3.2.10.3 Endorsements. Required insurance policies shall not be in complianceif they include any limiting provision or endorsement that has not been submitted to the City for approval.
a) The policy or policies of insurance required by Section

3.2.10.2 ( a) Commercial General Liability and ( c) Contractor's Pollution Liability shall be endorsed to provide the following:
1) Additional Insured: The City of Aliso Viejo, its
officials, officers, employees, agents, and volunteers
shall be additional insureds with regard to liability
and defense of suits or claims arising out of the
performance of the Agreement.

Additional Insured Endorsements shall not ( 1) be
restricted to " ongoing operations"; (2) exclude
contractual liability"; ( 3) restrict coverage to " sole" liability of Consultant; or ( 4) contain any other
exclusions contrary to the Agreement.
2) Cancellation: Required insurance policies shall not
be canceled or the coverage reduced until a thirty
30) day written notice of cancellation has been
served upon the City except ten ( 10) days shall be
allowed for non-payment of premium.
b) The policy or policies of insurance required by Section

3.2.10.2 ( b) Automobile Liability and ( d) Professional Liability shall be endorsed to provide the following:
1) Cancellation: Required insurance policies shall not
be canceled or the coverage reduced until a thirty ( 30) day written notice of cancellation has been served upon the City except ten ( 10) days shall be allowed for non-payment of premium.
c) The policy or policies of insurance required by Section

3.2.10.2 ( e) Workers' Compensation shall be endorsed to provide the following:
1) Waiver of Subrogation: A waiver of subrogation
stating that the insurer waives all rights of subrogation againstthe indemnified parties.
2) Cancellation: Required insurance policies shall not
be canceled or the coverage reduced until a thirty ( 30) day written notice of cancellation has been served upon the City 6-
60367.01100\33488377.1
70 except ten ( 10) days shall be allowed, for non-payment of premium.

3.2.10.4 Primary and Non - Contributing Insurance. All insurance coverages shall be primary and any other insurance, deductible, or self-insurance maintained by the indemnified parties shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.

3.2.10.5 Waiver of Subrogation. Requiredinsurance coverages shall not prohibit Consultant from waiving the right of subrogation prior to a loss. Consultant shall waive all subrogation rights against the indemnified parties. Policies shall contain or be endorsed to contain such provisions.

3.2.10.6 Deductible. Any deductible or self - insured retention must be approved in writing by the City and shall protect the indemnified parties in the same manner and to the same extent as they would have been protectedhad the policy or policies not contained a deductible or self - insured retention.

3.2.10.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copiesof the requiredpolicies, or original certificates and endorsements on forms approvedby the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen ( 15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Consultant shall, within ten ( 10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.

3.2.10.8 Failure to Maintain Coverage. Consultant agrees to suspendand cease all operations hereunder duringsuch periodof time as the required insurance coverage is not in effect and evidence of insurance has not been furnished to the City. The City shall have the right to withhold any payment due Consultant until Consultant has fully complied with the insurance provisions of this Agreement.

In the event that the Consultant's operations are suspended for failure to maintain required insurance coverage, the Consultant shall not be entitled to an extension of time for completion of the Services because of production lost during suspension.

3.2.10.9 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to do business in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.

3.2.10.10 Insurance for Subconsultants. All Subconsultants shall be included as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causingSubconsultants to purchase the appropriate insurance in compliance with 7-
60367.01100\33488377.1
71 the terms of these Insurance Requirements, including adding the City as an Additional Insured to the Subconsultant's policies.

3.2.11 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employeesappropriate to the nature of the work and the conditions under which the work is to be performed. Safetyprecautionswhere applicable shall include, but shall not be limited to: ( A) adequatelife protectionand life savingequipment and procedures; (B) instructions in accident preventionfor all employeesand subconsultants, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully requiredto prevent accidents or injuries; and ( C) adequate facilities for the proper inspection and maintenance of all safety measures.

3.3 Fees and Payments.

3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit " C" attached hereto and incorporated herein by reference. The total compensationshall not exceed Forty Thousand Dollars ($ 40,000) (" Total Compensation") without written approval of the City Manager. Extra Work may be authorized, as described below, and if authorized, will be compensatedat the rates and manner set forth in this Agreement.

3.3.2 Payment of Compensation.

Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequentbilling periods, as appropriate, throughthe date of the statement. City shall, within 45 days of receiving such statement, review the statement and pay all non - disputed and approved chargesthereon.

3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City.

3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipatewould be necessary at the execution of this Agreement.

Consultant shall not perform, nor be compensatedfor, Extra Work without written authorization from the City.

3.3.5 Prevailing Wages; DIR Registration.

3.3.5.1 Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (" Prevailing Wage Laws"), which require the payment of prevailing wage rates and 8-
60367.01100\33488377.1
72 the performance of other requirements on " public works" and " maintenance" projects. If the Services are being performed as part of an applicable "public works" or " maintenance" project, as defined by the PrevailingWage Laws, and if the total compensation is $ 1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailingrates of per diem wages in effect at the commencement of this Agreement.

Consultant shall make copies of the prevailingrates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested partiesupon request, and shall post copiesat the Consultant's principal placeof business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employeesand agents free and harmless from any claim or liability arising out of any failure or allegedfailure to comply with the Prevailing Wage Laws.

3.3.5.2 If the Services are being performed as part of an applicable public works" or " maintenance" project, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (" DIR"). Consultant shall maintain registration for the duration of the project and require the same of any subconsultants. This project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Contractor's sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR.

3.4 Accounting Records.

3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shalfallow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three ( 3) years from the date of final payment under this Agreement.

3.5 General Provisions.

3.5.1 Termination of Agreement.

3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven ( 7) days before the effective date of such termination. Upon termination, Consultant shall be compensatedonly for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. The rights and remedies of the City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law, equity or under this Agreement.
9-
60367.01100133488377.1
73 3.5.1.2 Effect of Termination. If this Agreement is terminated as providedherein, City may require Consultant to provideall finished or unfinished Documents and Data and other information of any kind preparedby Consultantin connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen ( 15) daysof the request.

3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as providedherein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respectiveparties at the following address, or at such other address as the respectiveparties may provide in writing for this purpose:

Consultant:

Brian Cornelius

RDA, LLC
2125 S. Cabrillo Avenue
San Pedro, CA 90731
City:

City of Aliso Viejo
12 Journey, Suite 100
Aliso Viejo, CA 92656
Attn: Community DevelopmentDirector
Such notice shall be deemed made when personally delivered or when mailed, forty-eight 48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicableaddress. Actual notice shall be deemed adequatenotice on the date actual notice occurred, regardless of the method of service.

3.5.3 Ownershipof Materials and Confidentiality.

3.5.3.1 Documents & Data: Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetuallicense for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magneticallyor otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (" Documents & Data"). Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data.

Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 10-
60367.01100\33488377.1
74 3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, inputrecord data, written information, and other Documents and Data either created by or providedto Consultant in connection with the performanceof this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generallyknown, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographsof the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio productionor other similar medium without the prior written consent of City.

3.5.3.3 Confidential Information. The City shall refrain from releasing Consultant's proprietary information (" ProprietaryInformation") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information.

Consultant shall have five ( 5) working days after receipt of the Release Notice to give City written notice of Consultant's objectionto the City's release of ProprietaryInformation. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense ( including attorney's fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of the Objection Notice unless either: ( 1) Consultant fails to fully indemnify, defend ( with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or ( 2) a final and non - appealableorder by a court of competent jurisdiction requires that City release such information.

3.5.4 Fraud Policy. Consultant shall provide a copy of the City's Fraud Prevention Policy to each of its employeesassignedto perform Services under this Agreement.

Consultant shall submit to the City a statement signed by an authorized representativefor Consultant certifying receipt of the City's Fraud Prevention Policy. A finding by the City that any of Consultant's employeeshave committed fraud againstthe City or have violated the City's Fraud Prevention Policy shall be grounds for appropriatediscipline, up to and including such employee's removal from performanceof this Agreement at City's request and/or termination of this Agreement. Consultant shall reimburse the City for any costs and expenses associated with fraud against the City.

3.5.5 Cooperation: Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.

3.5.6 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and all other costs of such action. 11-
60367.01100133488377.1
75 3.5.7 Indemnification.

3.5.7.1 To the fullest extent permitted by law, Consultant shall defend with counsel of City's choosing), indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertainingto, or incident to any alleged acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant's Services, the Projector this Agreement, includingwithout limitation the payment of all damages, expert witness fees and attorney's fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by the Consultant or the City, its officials, officers, employees, agents or volunteers.

3.5.7.2 If Consultant's obligation to defend, indemnify, and/or hold harmless arises out of Consultant's performance as a " design professional" ( as that term is defined under Civil Code section 2782.8), then, and only to the extent requiredby Civil Code section 2782.8, which is fully incorporatedherein, Consultant's indemnification obligationshall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant's liability for such claim, includingthe cost to defend, shall not exceed the Consultant's proportionate percentage of fault.

3.5.8 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandingsor agreements. This Agreement may only be modified by a writing signedby both parties.

3.5.9 Governing Law. This Agreement shall be governedby the laws of the State of California. Venue shall be in Orange County.

3.5.10 Time of Essence. Time is of the essence for each and every provision of this Agreement.

3.6 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.

3.7 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.

3.8 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
12-
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76 3.9 Construction; References; Captions. Since the Parties or their agents have participatedfully in the preparation of this Agreement, the languageof this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days.

All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specifiedin this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specifiedin this Agreement. The captions of the various articles and paragraphsare for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.

3.10 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

3.11 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performedby a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.

3.12 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.

3.13 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

3.14 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employeeworking solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employeeof City, duringthe term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arisingtherefrom.

3.15 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against .any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
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77 3.16 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisionsof that Code, and agrees to complywith such provisions before commencingthe performanceof the Services.

3.17 Authority to Enter Agreement. Consultant has all requisitepower and authority to conduct its business and to execute, deliver, and performthe Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authorityto make this Agreement and bind each respective Party.

3.18 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

3.19 Declaration of Political Contributions. Consultant shall, throughoutthe term of this Agreement, submit to City an annual statement in writing declaringany political contributions of money, in -kind services, or loan made to any member of the City Council within the previous twelve-month period by the Consultant and all of Consultant's employees, including any employee(s) that Consultant intends to assignto perform the Services described in this Agreement.

3.20 Subcontracting.

Signatures on following page.]
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78 ATTEST:

By:

Mitzi Ortir%
City Clerk

SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF ALISO VIEJO AND [ INSERT NAME]
IN WITNESS WHEREOF, the partieshave executed this Professional Services Agreement on this 19th day of April , 2022.

CITY OF ALISO VIEJO
Approved:

By:

David Doyle
City Manager
Its: -. J 1 ) ;
J
iPrinted Name: ( / f%
RDA, LLC a limited liability company
If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
APPROVED AS TO FORM:

Best Best & Krieger LLP
City Attorney

APPROVED AS TO COMPLIANCE

WITH BUDGET
By:

Financial S- ices Department
15-
60367.01100133488377.1
By:

Its:

Printed Name:
79 CITY OF ALISO VIEJO

DECLARATION OF POLITICAL CONTRIBUTIONS
Using the space provided below, pleaselist any political contributions of money, in -kind services, or loans made to any member of the City Council within the last twelve ( 12) months by Consultant and all of Consultant's employees, including any employee(s) that applicant intends to assign to perform the work or services described in this Agreement:
opsiA)64,
To the best of my knowledge, I declare under penalty of perjury that the foregoing is true and was executed at:

City/County/ todtt Date
lb... A , , cr+, 1l',' 5
Name of business Print Name

NOTES THIS DECLARATION IS INCLUDED AS PART OF THE AGREEMENT AND MUST BE SIGNED AND ATTACHED HERETO.
16-
60367.01100133488377.1
80 CITY OF ALISO VIEJO

ACKNOWLEDGMENT OF RECEIPT OF FRAUD POLICY
I hereby acknowledge that I have received a copy of the City's " Fraud Prevention Policy" dated October 1, 2008. I understand that I am to promptly read its contents and distribute copies to employees assignedto perform Services for the City of Aliso Viejo.

To the extent that provisions of this policy conflict with previously issued policies or practices, whether or not such policies and practices were contained in written policies, this policy shall prevail.
etc-
Name of Business
tO ls
Date
60367.01100\33488377.1
d`',n , \_// , )/ 314i
Print Name
17-
81 EXHIBIT " A"

SCOPE OF SERVICES
ASSUMPTIONS:

My client would be with the City of Aliso Viejo.

Seth Merewitz at Best, Best and Krieger (or a designatedrepresentative) will be the pointof contact for communication and discussions with City Officials and property owners on the property.

Legal transaction and land use matters or questionswill be handled by Best Best & Kreiger representingthe City of Aliso Viejo.

The " Project" for purposes of this proposalis essentiallythe concept plan and land use plan shown on page 20 and 23 respectivelyin the GatewayDistrict Vision document which are the result of City Council approvalof a " vision plan" for Town Center in 2015, further refined with workshopsand other communityinput thru 2017.

All the property directly affected ( or occupied) by the Projectis privatelyowned, except for lots 24 and 11 ( both labelled " Aliso Park Plaza") on the Town Center PropertyOwners Diagramin the Appendix, which are publicly owned. Therefore, confidential discussions with 3rdparty resources, tenant prospects, potential developmentpartners or investors and landowners would not necessarilyneed to be public record.

The City of Aliso Viejo has undertaken and completed several initiatives to facilitate and justify redevelopmentof the overall site, includingamendingCC&Rs, REA's and Deed Restrictions to allow the types of uses and densities envisioned for the Project.

The City of Aliso Viejo commissioned retail ( Stoffel), residential and office ( Concord), and hotel CBRE) feasibility studies to support the proposedProject. Those studies date from 2016 and 2017 and likely need updating. Metrics for both the retail and residential rental sectors have changedsignificantlyover the past 5-6 years. While construction and operatingcosts have escalated, residential rents have also increased significantly as well. Commercial retail rents have levelled off, and the focus is now on uniquefood and entertainment uses pluscertain service uses that are resistant to online competition. There are new uses requiring a physical " store" that didn't exist in 2016. There are uses once considered " discounters" that are now considered mainstream. The City of Aliso Viejo is preparedto have these studies updatedto make the most compellingcase for the Project, if necessary. The cinema is a viable use in the near term, but longer -term prospects for that type of entertainment use are less certain.

The City of Aliso Viejo has not ( yet) included the Town Center is any General Plan Land Use Element update. The redevelopmentproposedwould likely requirea General Plan Amendment for consistency, alongwith other zoningamendments and/or a SpecificPlan.

The City of Aliso Viejo is willing to assist or possiblyeven fund the requiredentitlement process including preparation/amendment of a Specific Plan, making other discretionaryland use decisions, and preparingthe required CEQA impact analysisfor that amendment. Delivering A-1
60367.01100133488377.1
82 an " entitled" project with owner participation on substantiallypre -negotiatedterms would greatlyreduce risk for potentialdevelopersand make the project far more attractive.

Likely the most challengingobstacle to implementingthe Projectis the fragmentedownershipof the site. This is noted several times in the feasibility studies and has both short and longer -term consequences. In the short term any pathforward likely involves creatinga financial incentive for the current property owners to collaborate, cooperate and support the Project.

Discussions/attempts thus far including a back- end " hopenote" based on the potentialfuture value of the redevelopedproperty and sharingpotential parkingrevenue streams have been insufficiently compelling to get consensus from everyone. In the long term a coordinated merchandising, tenanting and programmingof the overall re - developedproperty may be complicatedby competingownershipinterests. A joint venture agreement among the property owners could potentiallyinclude measures to reduce these inherent conflicts.

As mentioned previously, the strategy for gettingowner participationmay include a direct approachwith attractive short and longer -term financial incentives and mitigatedrisk, and/or a more obliqueapproach where an attractive projectdesigncould be executed in phasesand substantialportionscompletedwithout the participationof every property owner. The prospect of being left out of the benefits afforded project participantscould help convince reluctant or un-interested partiesto get on board. That strategy would require further study of the planand construction phasingof the project to provide credible alternate scenarios.

Due mainly to the cost of structured parking, the proformafor developmentof this type is likely to show a zero or negativeresidual land value. Assumingit makes economic and political sense, The City of Aliso Viejo may consider enteringinto a public privatepartnershipfor the funding and construction of projectinfrastructure, includingroadways, utilities, parkingstructures and/or publiclyaccessible open space. It's also possiblea hotel appropriatefor the Projectwould only be feasible with some short- or medium - term financial assistance such as transit occupancy tax waivers or rebates.

The following broadlydefined tasks could sequentiallylead to the goal of an RFP/RFQ targetedto selected developers (either as JV partners or as a fee developer) for a feasible and substantiallyentitled projectbased on the assumptionsabove. The effort involved to pursue and completeeach task is a little difficult to measure from this earlyvantagepoint, so this proposalcovers onlythe first steps. Specifically, developinga presentationof strategiesand ideas to present to property owners to solicit feedback and gage interest in supportingthe redevelopmentplan.

TASK A — Records/Research/Field Study
This is well underwayalready — a review of feasibility studies, designand planningdrawings, economic analysis, background on community input and priorities, discussions/conversations with A-2
60367.01100133488377.1
83 property owners, and review available land use related documents and amendments. I would also use this time to survey other competingprojectsin the regionto compilea list of " goodideas" and gather evidence that it'p time for AVTC to act.

Time required: Approximately2-3 weeks.

Deliverables: Written summary of findingsand recommendations, presentationand discussion.

TASK B — StrategyPresentation
Based on current feasibilitystudies, estimated rent income, and updatedconstruction and leasing costs, I would extrapolatethe proforma to a 2023 or 2024 build out year to find opportunitiesto incentivize property owners. Rather than construct a new detailed proformaand cash flows, this would be a " back of napkin" sources and uses analysisintended to identify opportunities. After reviewing those with the City, some additional research and supportinganalysismay be needed to make a defensible presentationto property owners. Also some additional design/sketchwork may be required if the program, concept or phasingneed adjustmentbased on updatednumbers ( or feedback from owners shared during a later task).

I will assume that the City will carry the CEQA related compliancecosts and that a mixed use developerchosen thru the RFP process would carry preconstructioncosts for designand permitting the project, financingand marketing the project, and the legal costs for creating joint venture agreements with property owners, for pre- leasingand for operatingagreementswith hotel operators, and any pre -leasingwith commercial tenants. Certain other costs, such as offering rent abatement for existingtenants duringthe construction phase, would be a part of any overall property owner incentive packageand be fundedbythe City, bythe developer, or some combination. Part of the presentationwork will be developinga reasonable estimate of thosekinds of projectrelated soft costs.

Time required: Subjectto the timing of feasibilitystudyupdates, approximately 2-3 weeks to work on the proforma and create a menu of supportableincentive options and strategiesfor property owners that the City would approve.

Deliverables: Extrapolatedproformaincludingprojectedcosts and income, and updatedconcept plan, if required, alongwith a narrative outline of strategiesand ideas to incentivize landowners and obtain their consent ( via an LOI or MOU) to move forward with entitlementsand the preparationof an RFI/RFQ. Presentation and Discussion.

TASK C — Discussions with Property Owners
Presentation to property owners and key stakeholders to reach a deal ( an MOU, Letter of Intent A-3
60367.01100133488377.1
84 leadingto a draft JV Agreementto be executed by the successfuldeveloper) by which owners would contribute land andsupport the Project in exchangefor to - be -determined financial benefits in the near and long term, in addition to the consequentialbenefits to commercial retail sales and property values that are expectedto result from a substantial new financial investment in the Project. This task would occur in close cooperationwith the City. Several years have passedsince this initiative first launched and the urgency for takingaction to keepthe property competitivehas only increased. Even so we would assume several rounds of discussions andnegotiationsare needed to coordinate and reconcile potentially conflictingrequirementsand concerns of the parties.

Time required: Dependingupon the availability/accessibility of the property owners, 1-3 months for discussions and negotiations.

Deliverables: Presentation materials supporting arguments in favor of the Project targeted to affected property owners and other stakeholders. The outcome of this task, obtainingthe approvaland cooperationof critical property owners, creates the opportunity for the projectto move forward with entitlements,
Task B and Task C above are both decision points. If in the opinionof the Citythe ideas and strategies developedare not sufficiently compelling to present, or if the feedback from property owners after presentingthose ideas is generallyunfavorable, then the City may chooseto move forward in a different direction.

A-4
60367.01100133488377.1
85 EXHIBIT " B"

SCHEDULE OF SERVICES
TASK A - Records/Research/Field Study
Time required: Approximately2-3 weeks.

Deliverables: Written summary of findingsand recommendations, presentationand discussion.

TASK B — StrategyPresentation
Time required: Subjectto the timing of feasibilitystudyupdates, approximately2-3 weeks to work on the proforma and create a menu of supportableincentive options and strategiesfor property owners that the City would approve.

Deliverables: Extrapolatedproformaincludingprojectedcosts and income, and updated concept plan, if required, alongwith a narrative outline of strategiesand ideas to incentivize landowners and obtain their consent ( via an LOI or MOU) to move forward with entitlements and the preparationof an RFI/RFQ. Presentation and Discussion.

TASK C — Discussions with Property Owners
Time required: Dependingupon the availability/accessibility of the property owners, 1-3 months for discussions and negotiations.

Deliverables: Presentation materials supporting arguments in favor of the Project targeted to affected property owners and other stakeholders. The outcome of this task, obtainingthe approvaland cooperationof critical propertyowners, creates the opportunity for the projectto move forward with entitlements,
Task B and Task C above are both decision points. If in the opinionof the City the ideas and strategies developedare not sufficiently compelling to present, or if the feedback from property owners after presentingthose ideas is generallyunfavorable, then the Citymay choose to move forward in a different direction.

B-1
60367.01100133488377.1
86 EXHIBIT " C"

COMPENSATION
FEE ESTIMATE ( excludingother resources that may be added to the team with the City's prior approval).

Task A Records/Research/Field Study 20 hours $ 3,000-5,000 Task B PrepareStrategyPresentation 80 hours $ 15,000-20,000 Task C Owner/Stakeholder Presentations 60 hours $ 10,000-15,000 In addition, I would be thrilled to continue to representthe City of Aliso Viejo in the implementationof the projectin partnershipwith the successful developer(s) as deemed necessary and beneficial.

HOURLY RATES
Note I have included Steve Hanna's rate and qualificationsalthoughhe would be minimallyinvolved in this initial effort.)
Brian Cornelius $ 225/hour
Steve Hanna $ 225/hour
Expensesreimbursed at cost plus 10%
C-1
60367.01100\33488377.1
87 - 1 -
60367.01100 \33489405.1

CITY OF ALISO VIEJO

SECOND AMENDMENT TO

PROFESSIONAL SERVICES AGREEMENT

FOR PLANNING CONSULTANT SERVICES

1. PARTIES AND DATE.

This Second Amendment to the Professional Services Agreement for Planning Consultant Services (“ Second Amendment”) is entered into on the ____ day of ________, 2023, by and between the City of Aliso Viejo (hereinafter referred to as the “City”) and RDA, LLC, a California Limited Liability Company (hereinafter referred to as the “Consultant”). City and Consultant are sometimes collectively referred to herein as the “Parties.”

2. RECITALS.

2.1 Agreement. The Parties entered into an agreement entitled Professional Services Agreement for Planning Consultant Services dated March 21, 2022 (“Agreement”).

2.2 F irst Amendment. The Parties entered into a First Amendment and increased the total compensation under the Agreement by Forty-Five Thousand Dollars ($45,000).

2.3 S econd Amendment . The Parties now desire to amend the Agreement to increase the total compensation under the Agreement by Sixty-Five Thousand Dollars ($65,000).

3. TERMS.

3.1 Term.

Section 3.3.1 of the Agreement is hereby amended to read as follows: Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorp orated herein by reference. The total compensation shall not exceed Sixty-Five Thousand Dollars ($65,000) ("Total Compensation") without written approval of the City Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.”

3.2 Compensation.

The total compensation for the Services provided pursuant to the Agreement and this Second Amendment shall not exceed One Hundred and Sixty Thousand Dollars ($ 160,000) without written approval of the City Manager. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Second Amendment at the rates set forth in Exhibit “C” attached hereto.
88 - 2 -
60367.01100 \33489405.1

3.3 Declaration of Political Contrib utions. Prior to the City’s approval of this Amendment, Consultant shall submit to City a statement in writing declaring any political contributions of money, in-kind services, or loan made to any member of the City Council within the previous twelve -month period by the Consultant and all of their employees, including any employee(s) that Consultant intends to assign to perform the Services described in this Second Amendment.

3.4 C ontinuing Effect of Agreement . Except as otherwise specifically set forth in this First Amendment, the remaining provisions of the Agreement shall remain in full force and effect. From and after the date of this Second Amendment, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this Second Amendment.

3.5 A
dequate Consideration . The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Second Amendment.

3.6 C ounterparts . This Second Amendment may be executed in duplicate originals, each of which is deemed to be an original, but when taken together shall constitute but one and the same instrument.
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60367.01100 \33489405.1

SIGNATURE PAGE FOR SECOND AMENDMENT TO PROFESSIONAL SERVICES

AGREEMENT FOR PLANNING CONSULTANT SERVICES BETWEEN THE

CITY OF ALISO VIEJO AND RDA, LLC
IN WITNESS WHEREOF, the parties have executed this Second Amendment to Agreement on this ____ day of __________, 2023.

CITY OF ALISO VIEJO

Approved:

By:

David Doyle
City Manager

ATTEST:

By:
_______________________________
Mitzi Ortiz, MMC
City Clerk
APPROVED AS TO FORM:
______________________________
Best Best & Krieger LLP
City Attorney

APPROVED AS TO COMPLIANCE

WITH BUDGET
By:

Ann Eifert
Director of Financial Services

RDA, LLC a limited liability company

[If Corporation, TWO SIGNATURES,
President OR Vice President AND Secretary
OR Treasurer REQUIRED]
By:

Its:

Printed Name:

By:

Its:

Printed Name:_________________________

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60367.01100 \33489405.1

CITY OF ALISO VIEJO

DECLARATION OF POLITICAL CONTRIBUTIONS
Using the space provided below, please list any political contributions of money, in-kind services, or loans made to any member of the City Council within the last twelve (12) months by Consultant and all of Consultant’s employees, including any employee(s) that applicant intends to assign to perform the work or services described in this Agreement:

To the best of my knowledge, I declare under penalty of perjury that the foregoing is true and was executed at:

City/County/State Date

Name of Business Print Name

Signature
NOTE: THIS DECLARATION IS INCLUDED AS PART OF THE AGREEMENT AND MUST BE SIGNED AND ATTACHED HERETO.
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60367.01100 \33489405.1

CITY OF ALISO VIEJO

Name of Business Print Name

Signature

Date

92 EXHIBIT “A”

TO SECOND AMENDMENT TO

PROFESSIONAL SERVICES AGREEMENT

FOR PLANNING CONSULTANT SERVICES

SCOPE OF SERVICES

ASSUMPTIONS:
• My client would be with the City of Aliso Viejo.
• Seth Merewitz at Best, Best and Krieger (or a designated representative) will be the point of contact for communication and discussions with City Officials and property owners on the property.
• Legal transaction and land use matters or questions will be handled by Best Best & Krieger representing the City of Aliso Viejo. The "Project" for purposes of this proposal is essentially the concept plan and land use plan shown on page 20 and 23 respectively in the Gateway District Vision document which are the result of City Council approval of a "vision plan" for Town Center in 2015, further refined with workshops and other community input thru 2017.
• All the property directly affected (or occupied) by the Project is privately owned, except for lots 24 and 11 (both labelled "Aliso Park Plaza") on the Town Center Property Owners Diagram in the Appendix, which are publicly owned. Therefore, confidential discussions with 3
rd party resources, tenant prospects, potential
development partners or investors and landowners would not necessarily need to be public record.
• The City of Aliso Viejo has undertaken and completed several initiatives to facilitate and justify redevelopment of the overall site, including amending CC&Rs, REA's and Deed Restrictions to allow the types of uses and densities envisioned for the Project.
• The City of Aliso Viejo commissioned retail (Stoffel), residential and office (Concord), and hotel CBRE) feasibility studies to support the proposed Project.

Thosestudiesdatefrom2016and2017andlikelyneedupdating.

Metricsforboththeretailandresidentialrentalsectorshavechangedsignificantlyoverth epast5-6years. While construction and operating costs have escalated, residential rents have also increased significantly as well. Commercial retail rents have levelled off, and the focus is now on unique food and entertainment uses plus certain service uses that are resistant to online competition. There are new uses requiring a physical "store" that didn't exist in 2016. There are uses once considered "discounters" that are now considered mainstream. The City of Aliso Viejo is prepared to have these studies updated to make the most compelling case for the Project, if necessary. The cinema is a viable use in the near term, but longer -term prospects for that type of entertainment use are less certain. • The City of Aliso Viejo has not (yet) included the Town Center is any General Plan Land Use Element update. The redevelopment proposed would likely require 93 a General Plan Amendment for consistency, along with other zoning amendments and/or a Specific Plan.
• The City of Aliso Viejo is willing to assist or possibly even fund the required entitlement process including preparation/amendment of a Specific Plan, making other discretionary land use decisions, and preparing the required CEQA impact analysis for that amendment. Delivering an "entitled" project with owner participation on substantially pre -negotiated terms would greatly reduce risk for potential developers and make the projects far more attractive. • Likely the most challenging obstacle to implementing the Project is the fragmented ownership of the site. This is noted several times in the feasibility studies and has both short and longer -term consequences. In the short term any path forward likely involves creating a financial incentive for the current property owners to collaborate, cooperate and support the Project. Discussions/attempts thus far including a back- end "hope note" based on the potential future value of the redeveloped property and sharing potential parking revenue streams have been insufficiently compelling to get consensus from everyone. In the long term a coordinated merchandising, tenanting and programming of the overall re - developed property may be complicated by competing ownership interests. A joint venture agreement among the property owners could potentially include measures to reduce these inherent conflicts.

As mentioned previously, the strategy forgetting owner participation may include a direct approach with attractive short and longer -term financial incentives and mitigated risk, and/or a more oblique approach where an attractive project design could be executed in phases and substantial portions completed without the participation of every property owner. The prospect of being left out of the benefits afforded project participants could help convince reluctant or un-interested parties to get on board. That strategy would require further study of the plan and construction phasing of the project to provide credible alternate scenarios.

• Due mainly to the cost of structured parking, the proforma for development of this type is likely to show a zero or negative residual land value. Assuming it makes economic and political sense, The City of Aliso Viejo may consider entering into a public private partnership for the funding and construction of project infrastructure, including roadways, utilities, parking structures and/or publicly accessible open space. It's also possible a hotel appropriate for the Project would only be feasible with some short- or medium -term financial assistance such as transit occupancy tax waivers or rebates.

The following broadly defined tasks could sequentially lead to the goal of an RFP/RFQ targeted to selected developers (either as JV partners or as a fee developer) for a feasible and substantially entitled project based on the assumptions above. The effort involved to pursue and complete each task is a little difficult to measure from this early vantagepoint, so this proposal covers only the first steps. Specifically, developing a presentation of strategies and ideas to present to property owners to solicit feedback and gage interest in supporting the redevelopment plan.

TASKA — Records/Research/Field Study This is well underway already — are view of feasibility studies, design and planning drawings, economic analysis, background on community 94 input and priorities, discussions/conversations with property owners, and review available land use related documents and amendments. I would also use this time to survey other competing projects in the region to compile a list of "good ideas" and gather evidence that it's time for A VTC to act.

Time required: Approximately2-3weeks.

Deliverables: Written summary of findings and recommendations, presentation and discussion.

TASK B — Strategy Presentation
Based on current feasibility studies, estimated rent income, and updated construction and leasing costs, I would extrapolate the proforma to a 2023 or 2024 build out year to find opportunities to incentivize property owners. Rather than construct a new detailed proforma and cashflows, this would be a "back of napkin" sources and uses analysis intended to identify opportunities. After reviewing those with the City, some additional research and supporting analysis may be needed to make a defensible presentation to property owners. Also, some additional design/sketch work may be required if the program, concept or phasing need adjustment based on updated numbers (or feedback from owners shared during a later task).

I will assume that the City will carry the CEQA related compliance costs and that a mixed-use developer chosen through the RFP process would carry preconstruction costs for design and permitting the project, financing and marketing the project, and the legal costs for creating joint venture agreements with property owners, for pre- leasing and for operating agreements with hotel operators, and any pre -leasing with commercial tenants. Certain other costs, such as offering rent abatement for existing tenants during the construction phase, would be a part of any overall property owner incentive package and be funded by the City, by the developer, or some combination. Part of the presentation work will be developing a reasonable estimate of those kinds of project related soft costs.

Time required: Subject to the timing of feasibility study updates, approximately 2-3 weeks to work on the proforma and create a menu of supportable incentive options and strategies for property owners that the City would approve.

Deliverables: Extrapolated proforma including projected costs and income, and updated concept plan, if required, along with a narrative outline of strategies and ideas to incentivize landowners and obtain their consent (via an LOI or MOU) to move forward with entitlements and the preparation of an RFI/RFQ. Presentation and Discussion.

TASK C — Discussions with Property Owners
Presentation to property owners and key stake holders to reach a deal (an MOU, Letter of Intent leading to a draft JV Agreement to be executed by the successful developer) by which owners would contribute land and support the Project in exchange for to -be -determined financial benefits in the near and long term, in addition to the consequential benefits to commercial retail sales and property values that are expected to result from a substantial new financial investment in the Project. This task would occur in close cooperation with the City. 95 Several years have passed since this initiative first launched and the urgency for taking action to keep the property competitive has only increased. Even so we would assume several rounds of discussions and negotiations are needed to coordinate and reconcile potentially conflicting requirements and concerns of the parties.

Time required: Depending upon the availability/accessibility of the property owners, 1-3 months for discussions and negotiations.

Task B and Task C above are both decision points. If in the opinion of the City the ideas and strategies developed are not sufficiently compelling to present, or if the feedback from property owners after presenting those ideas is generally unfavorable, then the City may choose to move forward in a different direction.

96 EXHIBIT “B”

SCHEDULE OF SERVICES

TASK A - Records/Research/Field Study
Written summary of findings and recommendations, presentation and discussion.

TASK B — Strategy Presentation
Extrapolated proforma including projected costs and income, and updated concept plan, if required, along with a narrative outline of strategies and ideas to incentivize landowners and obtain their consent (via an LOI or MOU) to move forward with entitlements and the preparation of an RFI/RFQ. Presentation and Discussion.

TASK C — Discussions with Property Owners
Discussions and negotiations with property owners. Presentation materials supporting arguments in favor of the Project targeted to affected property owners and other stakeholders. The outcome of this task, obtaining the approval and cooperation of critical property owners, creates the opportunity for the project to move forward with entitlements,

97 EXH
IBIT “C”

TO FIRST AMENDMENT TO

PROFESSIONAL SERVICES AGREEMENT

FOR PLANNING CONSULTANT SERVICES
CO

MPENSATION
F
EE ESTIMATE (excluding other resources that may be added to the team with the City's prior approval).

Task A Records/Research/Field Study 20 hours
Task B Proforma Update 80 hours
Task C Owner/Stakeholder Presentations 60 hours
$3,000-5,000
$30,000-35,000
$35,000-45.000
I
n addition, I would be thrilled to continue to represent the City of Aliso Viejo in the implementation of the project in partnership with the successful developer(s) as deemed necessary and beneficial.

HOU

RLY RATES
B
rian Cornelius $225/hour Steve
Hanna $225/hour
Dan Burgner $290/ hour
E
xpenses reimbursed at cost plus 10%%
98 MEMORANDUM
Aliso Viejo Town Center – Preliminary Parking Analysis
37-009694.00

1 | P a g e

Jerson Development, LLC (“Jerson”) engaged Walker Consultants (“Walker”) to provide a preliminary parking analysis for potential redevelopment of the northern portion of the Aliso Viejo Town Center shopping center (the “Center”). This preliminary analysis is intended to assist in understanding whether there are land use scenarios that would allow for the construction of little or no additional structured parking at the Center if a portion of its existing surface parking lot is redeveloped as a residential project and/or hotel project that would park itself.

Existing & Potential Land Use Programs
Table 1 summarizes the existing land use program for the northern portion of the Center, and the potential land use program of three future scenarios. Scenario 1 is the base scenario. The northern portion of the Center currently has approximately 1,550+ parking spaces.

Table 1: Aliso Viejo Town Center (North Section) – Land Use Scenarios

Source: Responsible Development, Walker Consultants, 2022 It is Walker’s understanding that the potential residential and hotel developments would park themselves within their respective footprints. They have been considered in the parking model to the extent that they would generate a captive market of customers, and potentially employees, for the commercial/office uses at the Center that will remain.

Each potential future scenario envisions a smaller cinema, which is partially redeveloped into retail, retail/restaurant, or medical office space.

Land Use Existing Scenario 1 Scenario 2 Scenario 3
Retail 49,147 sf 94,147 sf 71,647 sf 49,147 sf
Restaurant 63,286 sf 63,286 sf 85,786 sf 63,286 sf
Cinema 4,241 seats 2,100 seats 2,100 seats 2,100 seats
Medical Office 51,269 sf 51,269 sf 51,269 sf 96,269 sf
DATE: November 30, 2022
TO: Gerald Fogelson
COMPANY: Jerson Development, LLC
FROM:

COPIES TO:

Jeff Weckstein
Brian Cornelius
PROJECT NAME: Aliso Viejo Town Center - Preliminary Parking Analysis PROJECT NUMBER: 37-009694.00
99 MEMORANDUM
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Preliminary Parking Needs Analysis
Walker’s Shared Parking Model is based on the Urban Land Institute (ULI), National Parking Association (NPA), and International Council of Shopping Center’s (ICSC) Shared Parking1 publication. Walker led a team of consultants in researching and writing the updated Shared Parking Third Edition, which features the most up-to-date parking demand model. The model is designed to project the parking needs of diverse types of development from 6:00 a.m. to 12:00 midnight on a typical weekday and a weekend for every month of the year.

A parking needs analysis, in accordance with Shared Parking is the accepted methodology for determining the appropriate parking supply for developments. Walker has created a preliminary parking model for the Center that accounts for its mix of land uses.

The result of the parking model is a recommended parking supply for the existing Center and for each analyzed Scenario. This does not represent the maximum ever generated by the development. In Walker’s experience, designing a parking system for the absolute peak busiest day of the year leads to overbuilding of parking spaces. Similarly, one does not build for an average day and have insufficient supply for the peak (if not multiple) hours on 50 percent of the days in a year. The peak in this analysis refers to the “design day” or “design hour,” one that recurs frequently enough to justify providing spaces for that level of parking activity. The 85th percentile of peak-hour observations is recommended by Shared Parking except for shopping centers which are recommended to be designed for the 20th busiest hour of the year.

Methodology/Assumptions
This section briefly details the methodology for the shared parking analysis to determine the existing and future design day parking demand.

Figure 1: Steps of Shared Parking Analysis
Land Use Units
(Number of
rooms, square
footage, etc.)
X
Standard or
Base Parking
Generation
Ratio
X Monthly
Factor X Hourly
Factor X Driving
Ratio X
Non-
Captive
Ratio
= TOTAL

Source: Walker Consultants, 2022

1 Shared Parking (Third Edition), 2019, The Urban Land Institute, Washington, D.C.

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Land use information was provided by the client team and was previously shown in Table 1. This analysis has assumed all office space as medical office and has assumed that the restaurant space is half fine/casual dining and half fast/casual dining.

This analysis focuses on the existing commercial uses and has assumed that the potential residential and hotel components would park themselves within their respective footprints.

For this preliminary analysis, the base parking demand ratios, monthly factors, and time of day factors in Shared Parking were deemed reasonable.

Drive ratios for employees has been adjusted based on US Census journey to work data and a desktop review of the circulation system around the Center including transit availability and bicycle infrastructure.

Non-captive ratios are based on the non-captive subroutine contained within the Shared Parking Model.

Parking Needs Analysis Results Summary
Based on the Shared Parking methodology and the land use scenarios, which are shown again below for reference, Table 2 summarizes the results of the parking needs analysis for each scenario.

Table 2: Shared Parking Results

Scenario 3, where the cinema is redeveloped as a smaller 2,100 seat cinema and 45,000 square feet of medical office space, is projected to generate a need for the smallest amount of parking on the site.

Since construction of the project occur on a portion of the existing surface parking areas, it is anticipated that even in Scenario 6, some additional parking would need to be constructed unless parking management and operational strategies were implemented during peak times.

Land Use Existing Scenario 1 Scenario 2 Scenario 3
Retail 49,147 sf 94,147 sf 71,647 sf 49,147 sf
Restaurant 63,286 sf 63,286 sf 85,786 sf 63,286 sf
Cinema 4,241 seats 2,100 seats 2,100 seats 2,100 seats
Medical Office 51,269 sf 51,269 sf 51,269 sf 96,269 sf
Weekday
User Group Existing Scenario 1 Scenario 2 Scenario 3
Customer/Guest 1216 1037 1177 1012
Employee 212 224 249 281
Total 1428 1261 1426 1293
Weekend
User Group Existing Scenario 1 Scenario 2 Scenario 3
Customer/Guest 1655 1161 1353 1103
Employee 152 175 202 135
Total 1807 1336 1555 1238
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In general, the Center is projected to peak in December or Late December, due to the presence of the cinema, and seasonal retail demand. Parking demand is typically projected to peak in the evening, due to the presence of restaurant uses and the cinema. On weekdays, parking demand is projected to peak during the daytime due to the combination of office uses and lunchtime restaurant demand.

Construction of a residential project that parks itself on approximately 1.5 acres of the existing parking field would displace approximately 250+ parking spaces, reducing the northern portion of the Center’s parking supply to approximately 1,300+ parking spaces. Based on this, the northern portion of the Center would experience parking shortages during peak periods of parking demand.

However, in the case of Scenario 1, parking shortages would be seasonal and tied to the holiday shopping season as shown in Figure 2. Since the parking supply is only expected to be exceeded in December in Scenario 1, parking could potentially be managed during the holiday shopping season through a combination of operational considerations, discussed in the next section of this document.

Figure 2: Scenario 1 Peak Parking Demand by Month

0 200
400
600
800
1,000
1,200
1,400
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Lat Dec Parking Stalls
Month
Weekday Month-by-Month Estimated Parking Demand
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Operational Considerations
As part of this analysis, Walker was asked to consider certain parking operations and practices that could increase the striped capacity of the functional capacity of the existing parking supply at the Center. These considerations are discussed briefly below.

1. Re-striping the parking area for compact spaces.

Currently the City of Aliso Viejo Code prohibits compact parking spaces and mandates all spaces be 9’0” .

However, the team looking at the potential for adding uses to the Center may have leeway to adjust these standards if a Specific Plan is prepared for the Center . Reducing the stall width to 8’6” would create one additional space every seventeen spaces (17-9’0” spaces would yield 18-8’6” spaces). In employee parking areas behind the center, reducing the stall width to 8’3” would yield one additional space every eleven spaces. Based on the existing parking layout, approximately 40 additional spaces could be gained through restriping of parking areas that remain after potential development of a residential project on a portion of the existing parking field . However, it should be noted that narrower stalls reduce the level of service of the spaces and can result in more mis-parked vehicles where one vehicle parks in two stalls, which would result in little to no actual capacity gain on a functional level.

0 200
400
600
800
1,000
1,200
1,400
1,600
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Lat Dec Parking Stalls
Month
Weekend Month-by-Month Estimated Parking Demand
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2. Providing that employees park in spaces behind the center

Having employees park behind the Center and in other less convenient areas for customer parking is a parking industry best practice. In an environment with free parking, as the Center is and will remain, it can be difficult to enforce in practice. Walker recommends that the Center sign the customer areas as customer parking only, and perhaps with a 3 -hour posted time limit. This could be enforc ed through mobile license plate recognition. Walker is not advocating that vehicles receive tickets at 3 hours and 1 minute of stay duration; however, with mobile license plate recognition vehicles parked for 6 hour or more would most likely be employees who could be given a warning ticket. Additional measures could include having employees register their license plates with the Center and have it tied to their place of employment so that parking enforcement could let management of individual b usinesses know when they have non - compliant employees. Based on the results of the shared parking analysis it is also unlikely that the areas behind the Center have enough parking to park all employees. It is likely that other parking will need to be designated for employees such as on the roof level of the parking structure.

3. The possible use of the 2nd floor of the structure by the office/medical office This would also be a good parking management practice but would not increase the absolute number of spaces at the Center. It would; however, allow for the most convenient spaces to turn more often which is of benefit to the Center and the customer experience. The second floor of the parking structure may be a good place for employee parking in general.

4. Time of day and seasonal considerations

The move theatre use is a primarily nighttime use (even more so on weekdays), and peaks in the last week of December (the 13th ‘month’ called late-December in the Shared Parking Model). Given the seasonal peak the Center experiences due to the cinema, it may make sense to explore off -site employee parking in December if a suitable site, and willing partner, can be iden tified. Of more interest is the time -of-day considerations. Given the movie theater and restaurants, the site could probably accommodate some additional office of medical office uses instead of additional commercial (restaurant/retail) if a portion of the cinema is redeveloped . Some amount of these weekday only uses, would essentially be free from a parking requirement standpoint.

5. Use of Valet during peak times
A valet parking program could increase customer level of services for those who desire it. However, unless the designated valet area is 100% utilized it could decrease the functional capacity of the parking area as the valet parking area remains underutilized while self -parking patrons have difficulty finding parking spaces. However, a valet program with a stacked valet parking area could increase the overall capacity of parking at the Center. For example, the roof or a portion of the roof of the parking structure could potentially be the valet parking area, and the valets could stack vehicles in the drive aisles when the striped spaces are full. This type of stacking typically increases the functional capacity of the stacked areas by 15- 30% depending on whether vehicle scan be stacked on one or both sides of the drive aisle. 104

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Conclusions
Based on the parking model created for the project area, a residential project that parks itself on approximately

1.5-acres of the Center’s existing parking field would potentially result in the Center still having enough remaining parking to accommodate its comme rcial parking needs, assuming the size of the cinema is cut roughly in half, to 2,100 seats. Parking management would be needed to ensure employees park in back of house/less convenient parking areas, and additional season parking management measures may be needed in December.

It does not appear that the Center would have adequate parking if, in additional to the residential project, a hotel project was constructed on additional 1.0-acre portion of the existing surface parking. 105
Aliso Viejo Town Center 9/19/22
HighlightsComparing the current plan to the plan modelled by EPS in 2019•Residential rents and rent growth.•Currentrentsandrentgrowth is higher.•Construction Cost Estimates•Construction costslower (for a more efficient plan). •Indirect Costs.•Needdetailed estimate of indirect costs. •Cap Rates•Capratesforresidentialarelower.

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Financial Feasibility Study Prepared by EPS in 2019Key AssumptionsLandBasis$0ResidentialAllResidential Units Market RateOperatingExpenses30%AnnualRentGrowth (2016-2019)6%Annual Rent Growth (after 2019)4%CapRate 4.75%HotelCapRate 7%Annual Rent Growth (2016-2019)3.5%AnnualRent Growth (after 2019)3%OfficeCapRate 5.8%AnnualRent Growth3%RetailCapRate 5.8%AnnualRentGrowth(2016-2019)4.5%Annual Rent Growth (after 2019)4%Cost Escalation3%ConstructionLoan(LTC)65%Interest7%Perm Loan (LTC)70% Interest5.5% Current AnalysisKey AssumptionsLandBasis$50,000/resiunitResidentialAllResidential Units Market RateOperatingExpenses30%AnnualRentGrowth 6%CapRate 4.5%HotelCapRate 6.5%Annual Rent Growth (2016-2019)3.5%AnnualRent Growth (after 2019)3%Office RetailCapRate 5.8%AnnualRentGrowth3%
Cost Escalation3%ConstructionLoan(LTC)65%Interest7%Perm Loan (LTC)70% Interest5.5%Aliso Viejo Town Center 9/19/22 DRAFT
107
Financial Feasibility Study Prepared by EPS in 2019Program Current AnalysisProgramExistingNewTotal Dining63,286 29,636 92,922 Lodging-137 137Theater98,557 -98,557 Retail49,157 44,455 93,612
Office51,269 50,418 101,687 Residential0271 271
NewTotal29,636 92,922 125 12598,55714,064 63,221
-51,269380 380
Aliso Viejo Town Center 9/19/22
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Financial Feasibility Study Prepared by EPS in 2019Construction CostsParking Structure $ 51,904,454and Mixed UseMixed Use Wrap$ 84,353,000$351/gsfStand Alone Mixed Use$ 25,927,999 Hotel$ 18,178,000 $132,000/keyOffsite Improvements$ 3,500,000Onsite Improvements$0Total$186,222,934Soft (Indirect) Costs$ 47,922,30426% Current AnalysisConstruction CostsParking$ 41,337,500$25,000/stallCommercialRetail$ 4,219,200$300/gsfDining$ 14,818,000$500/gsfResidential$104,500,000$275,000/unitHotel$ 31,250,000$250,000/keyOffsite Imprvmnts$ 3,500,000Onsite Imprvmnts$ 5,860,000$20/gsflandTotal$243,360,380Soft (Indirect) Costs $ 39,085,48219%Aliso Viejo Town Center 9/19/22 DRAFT
109
Financial Feasibility Study Prepared by EPS in 2019Soft (Indirect) CostsCurrent AnalysisSoft (Indirect) Costs Total Hard Costs%HC$ 186,222,934.00 Professional Services6.00%$ 11,173,376.04 Insurance1.00%$ 1,862,229.34 Project Management3.00%$ 5,586,688.02 G&A3.00%$ 5,586,688.02 Legal & Closing1.50%$ 2,793,344.01 Property Taxes2.50%$ 4,655,573.35 Impact Fees0.00%$ -Other Fees (permit fees)4.00%$ 7,448,917.36 Parking Management Plan1.60%$ 2,979,566.94 Contingency4.00%$ 7,448,917.36 Total $ 49,535,300.44 27% %HC$ 211,272,880.00 Excluding Parking5.00%$ 10,563,644.00 Includes Commissions and TA0.00%$ -Incl3.00%$ 6,338,186.40 Developer Fee0.00%$ -Incl1.00%$ 2,112,728.80 Closing counted elsewhere2.50%$ 5,281,822.00 Over 2.5 years1.00%$ 2,112,728.80 City Reimb./Tenant Incentives3.00%$ 6,338,186.40 0.00%$ -3.00%$ 6,338,186.40 Contingency/Tenant Incentives$ 39,085,482.80 19% Aliso Viejo Town Center 9/19/22
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Financial Feasibility Study Prepared by EPS in 2019Residential Income/NOICurrent AnalysisResidential Income/NOI Units 271Avg. Unit Size1250gsfAvg Unit Size900nrsfTotal NRSF243,900nrsfOpen 2023, Stabilize 2025 $/NRSF/Mo$/NRSF/yr(2025)Unit/MoTotalResidential Gross Rent$ 3.94 $ 47.32 $ 42,588.25 $ 11,541,416.00 Other Revenue (5%)$ 0.20 $ 2.37 $ 2,129.41 $ 577,070.80 Vacancy (5%)$ (0.21)$ (2.48)$ (2,235.88)$ (605,924.34)Operating Expenses (30%)$ (1.18)$ (14.16)$ (12,744.53)$ (3,453,768.74)NOI (2025)$ 2.75 $ 33.04 $ 29,737.25 $ 8,058,793.72 Escalated to 2028 @ 4% annually $ 9,087,766.26 Units 380Avg. Unit Size1000gsfAvg. Unit Size720nrsfTotal NRSF273,600 nrsfOpen 2026, Stabilize 2029 $/NRSF/Mo$/NRSF/yr (2025)Unit/MoTotalResidential Gross Rent$ 4.50 $ 54.00 $ 3,240.00 $ 14,774,400.00 Other Revenue$ 0.24 $ 2.70 $ 162.00 $ 738,720.00 Vacancy (5%)$ 0.25 $ (2.84)$ (170.10)$ (775,656.00)Operating Expenses (30%)$ (1.42)$ (16.16)$ (969.57)$ (4,421,239.20)NOI (2026)$ 3.32 $ 37.71 $ 2,262.33 $ 10,316,224.80 Escalated to 2029 @ 6% annually $ 12,286,788.80 Aliso Viejo Town Center 9/19/22
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$4.17-$4.30/sf
$2.39-$3.15/sf
$4.54-$5.56/sf
$3.37-$3.46/sf
$3.50-$6.66/sf
$3.62-$6.66/sf
Aliso Viejo Town Center 9/19/22112

ALISO VIEJO

DEVELOPMENT
September 6, 2022
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113

BRIAN J CORNELIUS
Responsible Development Associates
Brian has provided strategic real estate development
consulting services to multiple clients fo r major residential, commercial, hospitality, and mixed-use projects in Southern California and elsewhere representing a total investment of over 22 years. Key areas of expertise include acquisitions, underwriting, planning and design, entitlements, project management, construction management, leasing and
property management.

Clients/ Experience
• Alliant Strategic Development, Calabasas, CA
• Black Lion IG, Los Angeles, CA
• Caruso, Los Angeles, CA
• CenterCal Properties, El Segundo, CA
• CIM Group, Los Angeles, CA
• HBS Global, Los Angeles, CA
• JMA Ventures, San Francisco, CA
• LS Urban, Los Angeles, CA
• LBG Investments, Los Angeles, CA
• Oliver McMillan, San Diego, CA
• The Ratkovich Company, Los Angeles, CA

CITY DEVELOPMENT CONSULTANT
Education
• Masters of Architecture
Rice University
• Bachelor of Arts - Magna Cum Laude
Yale University
• Licensed Contractor in California
(CA CSLB B-License)
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DAN BURGNER
BExperiential
Dan has provided strategic leadership and implemented
successful plans for major retail projects, achieving on-time project management, achieving long-term business objectives, and establishing sustainable organizational leadership. Key Areas of Expertise are the operation of properties, creating experiential environments and branding.

Clients/ Experience
• Hollywood Park, Los Angeles, CA
• Bishop Ranch City Center, San Ramon, CA
• Caruso (including The Grove & Americana at Brand),
Los Angeles, CA
• The Irvine Company, Irvine, CA

CITY DEVELOPMENT CONSULTANT
Education
• Masters of Business Administration
Real Estate Finance
University of Southern California
• Bachelor of Science
Business Administration
University of Southern California
• California Brokers Real Estate License
• Colorado Real Estate License
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COMPLETED PROJECTS
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AERIAL VIEW
Aliso Viejo Town Center
• The Aliso Viejo Town Center project
comprises a portion of the overall
Town Center commercial development
generally north of Barnes & Noble and
south of Enterprise.
• The development would occur in the parking
field and include approximately 6.5 acres of
land area in two areas, one on each side of
an existing drainage easement.
• The City launched an initiative to re-imagine
the property in 2015 when City Council
created the Town Center Vision.
• The goal of the Town Center Vision was to
promote reinvestment in the property and
protect its position as a vibrant, attractive,
and relevant part of the community.

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117
These are the existing
Parcel divisions showing
ownerships of the
development parcel.

PARCEL DIAGRAMS
6 7
8 9
10 11
12 13
14 15
Aliso Investment No 1, LLC
Winkler Properties, LP
AVTC Partners, LP
EPT Aliso Viejo, Inc.

Aliso Investment 3, LLC
Aliso Viejo Park Plaza
Hoag Health Center
Teliso, LLC

MG LBD, LLC
Brinker Restaurant Corp.
6 7
8 9
10 11
12 13
14 15
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118

PHASING DIAGRAMS

PHASE I

PARKING STRUCTURE

PHASE II

MIXED USE

HOTEL AND

COMMON AREA
01 02 03
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119

NEW DEVELOPMENT PLAN DIAGRAMS
• Up To 400 Residential Units
(a 500-800+ captive residential
population for the town center).
• 40,000 SF +/- of New Retail,
Restaurant and Entertainment Uses.
• New Hotel 135 Rooms +/-
• New 1100 Stall Parking Structure
Serving All The Uses (exclusive
residential parking).
• Provide 100% Replacement Of
Displaced Parking And Provide
100% Of Requirements For New
Uses Under The Zoning Code.

GROUND FLOOR
LEVEL 1
100 units on 4 levels = +/- 400 units

UPPER LEVELS
LEVELS 2-5
100 units on 4 levels = +/- 400 units

DEVELOPMENT

HIGHLIGHTS
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120

CHALLENGES AND SOLUTIONS
Parking and Access
Visibility and Signs
(During and after
development/ construction.)
Tenant Sales During
Development Phases
01 02
03 DRAFT 9/6/22

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121

POTENTIAL BENEFITS OF A DEVELOPMENT PARTNER

SHARE A LARGER

OVERALL
PARKING SUPPLY.

DEED RESTRICTIONS

LIFTED OR MODIFIED

ALLOWING ADDITIONAL
DEVELOPMENT.

CREATE TOWN

CENTER AS A
REGIONAL DRAW.

REDUCE CURRENT

EXPENSES FOR

CONTRIBUTED LAND
(TAXES, INSURANCE,
MAINTENANCE).

CONSIDERATION

FOR LAND

CONTRIBUTION --
• Higher Density, height, lot coverage.
• Expanded permitted uses.
• Ability to right size retail spaces.
• Higher appraised land value.
• Potentially transferrable
development rights.
• More traffic
• Higher sales.
• Critical mass that would
induce a wider draw
• Supply is concentrated closer
to commercial uses.
01 02
03 04
05 • Strategic response to
competing centers.
• Opportunity for improved,
expanded, curated
entertainment and
retail offerings.
• Improved walkability.
• Adds a more urban
vibe. Residential use
adds activity, creates
authenticity.
• Makes center a viable
evening destination.
• Housing provides captive
consumer and stakeholder
and 24/7 occupancy.
• Creates opportunities
for expanded events
and programming.
• Investment induces
further investment.

ADDITIONAL

POTENTIAL

BENEFITS
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122

JOINT VENTURE PARTICIPATION
Participation in a Joint
Venture to develop
the project.

Contributed land becomes
equity/ownership stake in
new Joint Venture.

Joint Venture partners
participate in the net
income and value creation
of the stabilzed project.
01 02
03 DRAFT 9/6/22

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123

WHAT OWNERS NEED TO DO
Owners select a spokesperson and engage legal representation.

Owners agree to reimagine in the property and unlock latent value in alignment and partnership with City and Future developer partner.

Owners commit to review proposed deal structure.

Owners execute a binding MOU option agreement to
approve REA amendments, and contribute land subject
to conditions precedent.

Owners participate with the City in the RFP and selection of a development partner for the joint venture.
• Development Partner will design the project and provide the required information for entitlements.
• City provides CEQA compliance, land use documentation and permitting. • Development Partner will finance and lease the project, oversee its construction and set up management structures
No land contribution occurs until the project is designed, entitled, financed, permitted and shovel ready.

OWNERS

CHECKLIST
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124
THANK YOU.

QUESTIONS?
Email: [email protected]
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125
City of Aliso Viejo

AGENDA ITEM
DATE: September 6, 2023
TO: Mayor and City Council
FROM: Ann Eifert, Director of Financial Services
SUBJECT: PUBLIC HEARING REGARDING CONSIDERATION OF THE

OPERATING COVENANT AGREEMENT WITH HUNT AND SONS, LLC,

AND THE RELATED ECONOMIC SUBSIDY REPORT
Recommended Actions:

1. Open and conduct a public hearing;

2. Declare that this project is exempt from the California Environmental Quality Act CEQA) under Section 15378(b)(4) because the Covenant Agreement involves the creation of a government funding mechanism, or other fiscal activity, that does not involve any commitment to any specific project which may result in a direct or indirect physical change in the environment;

4. Authorize the Director of Financial Services to appropriate $880,000 to the fiscal year 2023-24 budget for subsidy payments to Hunt and Sons, LLC; and

5. Authorize the City Manager to execute all related documents.

Fiscal Impact:

The City will receive sales tax revenues generated by Hunt and Sons, LLC in the City of Aliso Viejo for a period of 15 years. The agreement would provide Hunt and Sons with a share of these revenues through an economic subsidy. The City’s net revenue (sales tax revenue less subsidy payments) is projected to be between $7,575,000 and $13,200,000 over the 15-year term, or approximately $505,000 and $880,000 annually. 126

Page 2 of 3 ends

Background:

In 2016, City Council approved an Operating Covenant Agreement with EFuel, LLC. The agreement has provided the City with net sales tax revenue of approximately $2.5 million since inception. Hunt and Sons is an independent wholesale distributor of gasoline, diesel, and other refined petroleum products in California and provides on-site mobile fueling for diesel fueled vehicles and generators . Hunt and Sons ’ business operations are similar to EFuel and recently began operations within the City.

Discussion:

The City received a request from Hunt and Sons regarding the possibility of entering into an Operating Covenant Agreement with similar terms as provided to E Fuel. The terms are as follows:
 Hunt & Sons will continue to operate their sales office in the City of Aliso Viejo for not less than 15 years and collect sales tax revenues on behalf of the City. The agreement can be extended for an additional 15 years, for a total of 30 years.  Hunt and Sons will receive an amount equal to 50% of any sales tax revenues generated by Hunt and Sons and received by the City up to $800,000. Hunt and Sons will receive an amount equal to 70% of the sale s tax revenues generated and received by the City above the first $800,000.

Hunt and Sons projects that between $1,150,000 and $2,400,000 in sales tax will be collected annually in the City. Based on these projections, the economic subsidy payments to Hunt and Sons will range between $645,000 and $1,520,000 annually, bringing net revenue to the City of approximately $505,000 to 880,000 annually. The table below summarizes projected sales tax revenue, subsidy payments to Hunt and Sons, and net revenue to the City on an annual basis and over the term of the agreement. 127

Page 3 of 3 ends

The Operating Covenant Agreement will bring much needed revenue to the City to bridge the operating gap forecasted for future fiscal years and allow the City to maintain essential services such as public safety, public works, community development, and recreation programs.

An estimated $880,000 will need to be appropriated to the fiscal year 2023-24 budget for the subsidy payments. These payments will be offset by the increase in sales tax revenue generated by Hunt and Sons as a result of this agreement.

Environmental:

None
Public Notice:

Pursuant to Government Code Section 6066, a notice of public hearing was published on August 17, 2023, and August 24, 2023. The agreement and economic subsidy report is also available on the City’s website pursuant to Government Code Section 53083.

City Attorney:

Attorneys from Best, Best, and Krieger were involved in drafting and reviewing the Operating Covenant Agreement with Hunt and Sons.

Attachments:

1. Resolution

2. Operating Covenant Agreement with Hunt and Sons, LLC

3. Economic Development Subsidy Report
128

Page 1 of 5 ends

RESOLUTION NO. 2023-___

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ALISO

VIEJO, CALIFORNIA, ACCEPTING THE ECONOMIC DEVELOPMENT

SUBSIDY REPORT PREPARED PURSUANT TO GOVERNMENT CODE
SECTION 53083 REGARDING AN OPERATING COVENANT

AGREEMENT BY AND BETWEEN THE CITY OF ALISO VIEJO AND

HUNT AND SONS, LLC AND APPROVING SAID OPERATING

COVENANT AGREEMENT
WHEREAS, the City of Aliso Viejo ("City") and Hunt and Sons, LLC ("Hunt and Sons") have negotiated an Operating Covenant Agreement ("Agreement") for the retention and expansion of the Hunt and Sons facility located at 65 Enterprise, Suite 425, Aliso Viejo; and
WHEREAS, pursuant to that Agreement, Hunt and Sons is committed to operating its headquarters and sales office in the City for not less than 15 years; and WHEREAS, Hunt and Sons also covenants to, among other things, designate the City as the point of sale for certain transactions; and
WHEREAS, the City has agreed to purchase those covenants through quarterly payments equal to a certain percentage of the sales tax revenue received by the City; and
WHEREAS, based on information provided by City staff, and other such written and oral evidence as presented to the City, the City finds and determines that the allocation of funds to Hunt and Sons pursuant to the Agreement is reasonably related to a legitimate governmental purpose in that the retention and expansion of the Hunt and Sons operations will provide numerous public benefits including:
 generating substantial revenue for the City through additional local sales tax revenue which may be used by the City for the funding of necessary public services and facilities, including but not limited to, public safety services and facilities, public improvements and recreational opportunities that otherwise may not be available to the community for many years; and
 Hunt and Sons will be committed to maintaining the facility in the City of Aliso Viejo for not less than fifteen (15) years which will ensure the retention and creation jobs and provide opportunity for additional job growth throughout the term of this Agreement; and
 entering into this Agreement and retaining the facility may attract additional businesses and investment in the community due to increased services and economic activity in the area.
129

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 Retaining this business within the City will create jobs, maintain economic diversity in the community and stimulate the economic recovery by generating new opportunities for economic growth within the region; and WHEREAS, this Covenant Agreement assists the City in meeting General Plan Land Use Element Goals including:

LU- 1.1: Work to achieve a balance or surplus between the generation of public revenues and the cost of providing public facilities and services.

LU - 1.2: Attract a broad range of additional retail, medical, and office uses providing employment at all income levels and making a positive contribution to the City's tax base.

LU - 1.3 Attract and retain clean light industrial development (such as research and development and high technology) to improve the City's tax base and preserve high paying jobs.

LU - 3.1 Promote development of revenue generating land uses to help defray the costs of other uses demanding City services.

LU - 3.2 Actively promote Aliso Viejo as an employment center and ideal location for businesses, including national or regional headquarters, by providing and maintaining high quality services and facilities responsive to the needs of the business community.

WHEREAS, in accordance with Government Code Section 53083, the City provided certain information in written form to the public and on its website, a copy of which is attached hereto as Exhibit A and incorporated herein by this reference, and held a noticed public hearing on September 6, 2023, to consider all written and oral comments on the Economic Development Subsidy Report; and
WHEREAS, pursuant to Public Resources Code Section 21067 and State CEQA Guidelines Section 15367, the City is the lead agency for purposes of the Covenant Agreement; and
WHEREAS, the City has determined that approval of the Covenant Agreement is not a "project" pursuant to State CEQA Guidelines Section 15378(b)(4) because the Covenant Agreement involves the creation of a government funding mechanism, or other fiscal activity, that does not involve any commitment to any specific project which may result in a direct or indirect physical change in the environment; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred.
130

Page 3 of 5 ends

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ALISO VIEJO, CALIFORNIA, AS FOLLOWS:

Section 1: Incorporation of Recitals. The foregoing recitals are true and correct and are incorporated herein and made an operative part of this Resolution.

Section 2: CEQA. The City Council hereby finds that its acceptance of the Economic Development Subsidy Report and the approval of the Covenant Agreement are not a project under State CEQA Guidelines Section 15378(b)(4). Specifically, the acceptance of the Economic Development Subsidy Report and the Covenant Agreement are fiscal activities of the City which do not involve any commitment to any specific project which may result in a potentially significant environmental impact. By way of the Covenant Agreement, Hunt and Sons would agree to maintain its facilities in Aliso Viejo and would designate Aliso Viejo as a "point of sale" such that sales tax revenues would be collected by the business. Hunt and Sons would receive an amount equal to fifty percent (50%) of any sales tax revenues generated by Hunt and Sons and received by the City up to eight hundred thousand dollars ($800,000). Hunt and Sons will receive an amount equal to seventy percent (70%) of the sale tax revenues generated by Hunt and Sons and received by the City above the first eight hundred thousand dollars ($800,000). The Covenant Agreement would allow the City to maintain an important in-town business, which generates substantial revenue for the City. Should Hunt and Sons desire to expand its business or operations in the future Hunt and Sons would be required to secure any and all governmental permits, including compliance with the California Environmental Quality Act.

Section 3: Findings. The City Council additionally finds and determines that (a) there are identifiable public purposes fulfilled by the Agreement, as set forth in the Recitals, that outweigh the benefit to private persons; and (b) the findings set forth in this Resolution are based upon substantial written and oral evidence presented to the City Council.

Section 4: Acceptance of Economic Development Subsidy Report. The City Council finds and determines that this Economic Development Subsidy Report is in compliance with applicable law and specifically Government Code Section 53083.

Section 5: Approval of Agreement. The City Council hereby approves the Operating Covenant Agreement and directs the City Manager to take all actions necessary to implement the purpose of this Agreement, including executing said Agreement.

Section 6: Severability. If any provision of this Resolution is held invalid, the remainder of this Resolution shall not be affected by such invalidity, and the provisions of this Resolution are severable.

Section 7: Effective Date. This Resolution shall become effective immediately upon its adoption.
131

Page 4 of 5 ends

Section 8: Notice of Exemption. The City Council hereby directs staff to prepare, execute and file with the Orange County Clerk -Recorder, within five (5) working days of the adoption of this Resolution, a Notice of Exemption.

PASSED, APPROVED AND ADOPTED this 6th day of September, 2023. __________________________
Richard Hurt
Mayor
APPROVED AS TO FORM: ATTEST:

__________________________ __________________________
Scott C. Smith, City Attorney Mitzi Ortiz, MMC, City Clerk 132

Page 5 of 5 ends

STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.

CITY OF ALISO VIEJO )
I, MITZI ORTIZ, City Clerk of the City of Aliso Viejo, California, DO HEREBY CERTIFY that the foregoing is the original of Resolution No. 2023-__ duly passed and adopted by the City Council of the City of Aliso Viejo at their regular meeting held on the 6th day of September, 2023, by the following roll call vote, to wit:

AYES:

NOES:

ABSENT:
___________________________

MITZI ORTIZ, MMC

CITY CLERK
(SEAL)
133
60367.00500\29088439.7

HUNT & SONS, LLC

OPERATING COVENANT AGREEMENT

between

THE CITY OF ALISO VIEJO
a California municipal corporation,

and

HUNT & SONS
a Delaware limited liability company

134

1 RECITALS

WHEREAS, HUNT & SONS, LLC, started operations in 2023 and is an independent wholesale distributer of gasoline, diesel, and other refined petroleum products in California.

HUNT & SONS’s primary service includes on-site mobile fueling for diesel fueled vehicles and generators; and
WHEREAS, HUNT & SONS (hereinafter, “Owner” in accordance with Section 1.3. 10 hereof) has located HUNT & SONS Sales Office (“HSSO”) (as defined below) within the City of Aliso Viejo (hereinafter, the “City” in accordance with Section 1.3.1 hereof); and WHEREAS, Owner currently operates the company in Aliso Viejo as it serves the Owner’s business purposes in that the advantageous location of the City and its business conducive environment will permit Owner to operate more efficiently and effectively, will better serve its customers, and may provide an avenue for business expansion in Southern California.

WHEREAS, the incentives provided in this Covenant Agreement are intended to assist Owner with maintaining the HSSO within the City, expanding its operations within the City, as appropriate, and remain in the City for not less than15 years; and WHEREAS, entering into this Covenant Agreement is intended to generate substantial revenue for the City through additional Local Sales Tax Revenue which may be used by the City for the funding of necessary public services and facilities, including but not limited to, public safety services and facilities, public improvements and recreational opportunities that otherwise may not be available to the community for many years; and WHEREAS, entering into this Covenant Agreement will also ensure the immediate creation of high paying/management jobs and provide opportunity for additional job growth throughout the term of this Agreement. It will also help the City achieve the building blocks set forth in the General Plan including taking actions that help to achieve a desirable balance of jobs and housing; improving the city tax base, maintaining an attractive urban form, and providing adequate urban services and infrastructure; and
WHEREAS, this Covenant Agreement assists the City in meeting General Plan Land Use Element Goals including:

LU- 1.1: Work to achieve a balance or surplus between the generation of public revenues and the cost of providing public facilities and services; LU – 1.2: Attract a broad range of additional retail, medical, and office uses providing employment at all income levels and making a positive contribution to the City’s tax base.

LU – 1.3 Attract and retain clean light industrial development (such as research and development and high technology) to improve the City’s tax base and preserve high paying jobs.

LU – 3.1 Promote development of revenue generating land uses to help defray the costs of other uses demanding City services.
135

2 LU – 3.2 Actively promote Aliso Viejo as an employment center and ideal location for businesses, including national or regional headquarters, by providing and maintaining high quality services and facilities responsive to the needs of the business community.

WHEREAS, entering into this Covenant Agreement will further the goals adopted by the City in the 2010 Economic Development Plan including: supporting, retaining, promoting and expanding local business and promoting a business-friendly environment; and WHEREAS, entering into this Covenant Agreement and ensuring the operation of the sales office may attract additional businesses and investment in the community due to increased services and economic activity in the area.

NOW, THEREFORE, in consideration of the mutual promises contained herein, and for such other good and valuable consideration, the receipt of which is hereby acknowledged, the City and Owner agree as follows:

ARTICLE 1. EFFECTIVE DATE; PARTIES; DEFINITIONS

1.1 Effective Date of Covenant Agreement. This Operating Covenant Agreement (“Covenant Agreement”) is dated August 1, 2023, for reference purposes only. This Covenant Agreement will not become effective until the date (“Effective Date”) on which all of the following are true:

1.1.1 This Covenant Agreement has been approved and executed by the appropriate authorities of Owner, as defined herein, and delivered to the City;

1.1.2 Following all legally required notices and hearings, this Covenant Agreement has been approved by the City Council;

1.1.3 This Covenant Agreement has been executed by the appropriate authorities of the City and delivered to Owner; and

1.1.4 If all of the foregoing conditions precedent have not been satisfied by September 30, 2023, then this Covenant Agreement may not thereafter become effective and any prior signatures and approvals of the Parties will be deemed void and of no force or effect.

1.2 Parties to Covenant Agreement.

1.2.1 The City. The address of the City is 12 Journey, Suite 100, Aliso Viejo, California 92656, Attention: City Manager; telephone 949-425-2500; with copies to Scott Smith, City Attorney, 18101 Von Karman Avenue, Suite 1000, Irvine, CA 92164, Telephone: (949) 263-2600.

The City represents and warrants to Owner that, to the City’s actual current knowledge:
136

3 (a) The City is a public body, corporate and politic, exercising governmental functions and powers and organized and existing under the laws of the State of California;
(b) The City has taken all actions required by law to approve the execution of this Covenant Agreement;
(c) The City’s entry into this Covenant Agreement and/or the performance of the City’s obligations under this Covenant Agreement does not violate any contract, agreement or other legal obligation of the City; (d) The City’s entry into this Covenant Agreement and/or the performance of the City’s obligations under this Covenant Agreement does not constitute a violation of any state or federal statute or judicial decision to which the City is subject; (e) There are no pending lawsuits or other actions or proceedings which would prevent or impair the timely performance of the City’s obligations under this Covenant Agreement;
(f) The City has the legal right, power and authority to enter into this Covenant Agreement and to consummate the transactions contemplated hereby, and the execution, delivery and performance of this Covenant Agreement has been duly authorized and no other action by the City is requisite to the valid and binding execution, delivery and performance of this Covenant Agreement, except as otherwise expressly set forth herein; and
(g) The individual executing this Covenant Agreement is authorized to execute this Covenant Agreement on behalf of the City.

The representations and warranties set forth above are material consideration to Owner and the City acknowledges that Owner is relying upon the representations set forth above in undertaking Owner’s obligations set forth in this Covenant Agreement.

As used in this Covenant Agreement, the term “City’s actual current knowledge” shall mean, and shall be limited to, the actual current knowledge of the City Manager as of the Effective Date, without having undertaken any independent inquiry or investigation for the purpose of making such representation or warranty and without any duty of inquiry or investigation.

All of the terms, covenants and conditions of this Covenant Agreement shall be binding on and shall inure to the benefit of the City and its nominees, successors and assigns.

Wherever the term “City” is used herein, such term shall include any permitted nominee, assignee or successor of the City.

1.2.2 Owner. The address of Owner for purposes of this Covenant Agreement is HUNT & SONS, LLC; 65 Enterprise, Suite 425, Aliso Viejo, CA 92656.

Owner represents and warrants to the City that, to its actual current knowledge:
137

4 (a) Owner is a duly formed California limited liability Company, qualified and in good standing to do business under the laws of the State of California; (b) The individual executing this Covenant Agreement is authorized to execute this Covenant Agreement on behalf of Owner;
(c) Owner has taken all actions required by law to approve the execution of this Covenant Agreement;
(d) Owner’s entry into this Covenant Agreement and/or the performance of its obligations under this Covenant Agreement does not violate any contract, agreement or other legal obligation of Owner; (e) Owner’s entry into this Covenant Agreement and/or the performance of its obligations under this Covenant Agreement does not constitute a violation of any state or federal statute or judicial decision to which Owner is subject; (f) There are no pending lawsuits or other actions or proceedings which would prevent or impair the timely performance of Owner’s obligations under this Covenant Agreement;
(g) Owner has the legal right, power and authority to enter into this Covenant Agreement and to consummate the transactions contemplated hereby, and the execution, delivery and performance of this Covenant Agreement have been duly authorized and no other action by Owner is requisite to the valid and binding execution, delivery and performance of this Covenant Agreement, except as otherwise expressly set forth herein; and
(h) Owner and its managerial personnel possess sufficient experience and qualifications necessary to conduct Owner’s Sales Activities (hereinafter defined) as required by this Covenant Agreement.
(i) Owner also represents that this Agreement was entered into by the Parties after completion of all construction, this Agreement was not an enticement to perform any construction, and no funds from this Agreement were used to pay for any construction or improvements on the Property.

The representations and warranties set forth herein are material consideration to the City and Owner acknowledges that the City is relying upon the representations set forth above in undertaking the City’s obligations set forth above.

All of the terms, covenants and conditions of this Covenant Agreement shall be binding on and shall inure to the benefit of Owner and its permitted nominees, successors and assigns. Wherever the term “Owner” is used herein, such term shall include any permitted nominee, assignee or successor of Owner.

The qualifications and identity of Owner are of particular concern to the City, and it is because of such qualifications and identity that the City has entered into this Covenant 138

5 Agreement with Owner. No voluntary or involuntary successor-in-interest of Owner shall acquire any rights or powers under this Covenant Agreement except as expressly set forth herein.

1.2.3 The City and Owner are sometimes individually referred to as “Party” and collectively as “Parties.”

1.2.4 Owner has investigated and believes in good faith that this Covenant Agreement is not subject to California Government Code Section 53084.5 because the Agreement will not result in a reduction in the amount of revenue under the Bradley-Burns Uniform Local Sales and Use Tax Law that would be received by another local agency where Owner will be maintaining a physical presence within the territorial jurisdiction of another local agency that might experience a reduction. Owner represents that Owner has only filed quarterly Sales Tax reports with the BOE reflecting Aliso Viejo as the point of sale for purposes of Sales Tax allocation.

1.3 Definitions.

1.3.1 “City” means the City of Aliso Viejo, a California municipal corporation, and any nominee, assignee of, or successor to, its rights, powers and responsibilities.

1.3.2 “Computation Quarter” means each calendar quarter beginning on January 1, April 1, July 1, or October 1, as applicable, and ending on the succeeding March 31, June 30, September 30, or December 31, as applicable. The first Computation Quarter within the Eligibility Period shall commence on July 1, 2023 and is referred to herein as “Computation Quarter 1,” with each succeeding Computation Quarter within the Eligibility Period being consecutively numbered, concluding with Computation Quarter 60.

1.3.3 “Covenant Payment(s)” means those contingent payments to be made by the City to the Owner pursuant to Section 3.2 of this Covenant Agreement for the purchase of the Covenants and Owner’s timely and faithful performance thereunder.

1.3.4 “Covenant Term” means, a period of no less than 15 years following the Effective Date (unless terminated sooner or extended pursuant to specific provisions of this Covenant Agreement). The Covenant Term may be unilaterally extended by Owner for an additional 15 years period provided that:
(a) Owner is not in breach of the Covenants in this Covenant Agreement; and
(b) Owner provides City with written notice of Owner’s intent to extend the term not less than ninety (90) days prior to the expiration of the original Covenant Term.

1.3.5 “Covenants” means those six (6) covenants described in Section 3.1 herein.

1.3.6 “Eligibility Period” means the period commencing as of the first (1st) day of Computation Quarter 1 and ending the last day of Computation Quarter 60 (i.e., June 30, 139

6 2038) or the last day of Computation Quarter 120 (i.e., June 30, 2053) if the Covenant Term is extended as provided in Section 1.3.4.

1.3.7 “HSSO means the legal entity that maintains corporate sales and administrative functions within the City of Aliso Viejo from which sales, including all internet, telephonic, and direct taxable Aliso Viejo Sales to California customers are conducted. Such functions may be operated from one or more physical locations within the City and carried out by any full-time, secondment, or contractor personnel of Owner.

1.3.8 “Liquidated Damages” means, for purposes of Section 3.6, as follows:
(a) If the breach occurs during Computation Quarters 1 through 8, an amount equal to the previous two (2) Computation Quarter Covenant Payments paid to Owner at any time prior to the Computation Quarter in which the breach occurs.

1.3.8 “Owner” means and refers to Hunt & Sons, LLC, a Delaware limited liability company, and its successors and assigns, cumulatively.

1.3.9 “Owner’s Sales Activities” means the commercially reasonable business practices and activities associated with retail and wholesale sale of fuel through Owner’s mobile on-site fueling system throughout California.

1.3.10 “Penalty Assessments” means and refers to penalties, assessments, collection costs and other costs, fees or charges resulting from late or underpaid payments of Sales Tax and which are levied, assessed or otherwise collected from Owner.

1.3.11 “Petroleum Business” refers to the operation by Owner in the City of a sales office selling petroleum products, and services and products ancillary to the sale of those products, as it relates to Owner’s cardlock system or other future operations that generate Sales Tax revenue.

1.3.12 “Property” means that certain real property commonly known as (to be determined), or any other property within the City of Aliso Viejo to which Owner may elect to relocate the HSSO during the term of this Covenant Agreement.

1.3.13 “Required Operations” shall collectively refer to the following on and with respect to Owner conducting its Petroleum Business in the City: (i) Owner retaining and continuing to own or lease sufficient facilities in the City to allow the Petroleum Business to be conducted; (ii) Owner’s operation of the Petroleum Business within the corporate boundaries of the City; and (iii) Owner not transferring or otherwise relocating the retail sales operation or the point of sale as reported to the BOE for the Petroleum Business to another facility or location outside of the City.

1.3.14 “Sales Tax(es)” means that portion of taxes that is allocated, paid to, and actually received by City from the imposition of the Bradley-Burns Uniform Sales and Use Tax law (commencing with Section 7200 of the California Revenue and Taxation Code), or any successor law thereto, arising from all taxable sales transactions, occurring from Required Operations conducted by Owner within the City during the Eligibility Period. “Sales Tax” shall 140

7 not include sales tax revenues that are provided to a city based upon a special election or are limited to be used for a specified governmental function or functions.

1.3.15 “Sales Tax Law” means and refers to: (a) California Revenue and Taxation Code Section 7200 et seq., and any successor law thereto; (b) any legislation allowing City or other public agency with jurisdiction in City to levy any form of local Sales Tax on the operations of Owner; and (c) regulations of the California State Board of Equalization (“BOE”) and other binding rulings and interpretations relating to (a) and (b) of this Section 1.3.16.

1.3.16 “Sales Tax Revenues” means the net Sales Tax actually received by the City from the BOE pursuant to the application of the Sales Tax Law (as such statutes may hereafter be amended, substituted, replaced, re-numbered, moved or modified by any successor law) attributable to the HSSO in a particular Computation Quarter. Sales Tax Revenues shall not include: (i) Penalty Assessments; (ii) any Sales Tax levied by, collected for or allocated to the State of California, the County of Orange, or a district or any entity (including an allocation to a statewide or countywide pool) other than City; (iii) any administrative fee charged by the BOE; (iv) any Sales Tax subject to any sharing, rebate, offset or other charge imposed pursuant to any applicable provision of federal, state or local (except City’s) law, rule or regulation; (v) any Sales Tax attributable to any transaction not consummated within the Eligibility Period; or (vi) any Sales Tax (or other funds measured by Sales Tax) required by the State of California to be paid over to another public entity (including the State) or set aside and/or pledged to a specific use other than for deposit into or payment from the City’s general fund.

1.3.17 “Taxable Aliso Viejo Sales” means, to the extent legally allowable, Owner’s taxable sales transactions to California customers, including, but not limited to, sales through an internet website or phone sales, that result from Owner’s Sales Activities to addresses located in California.

1.3.18 “Termination Date” shall mean June 30, 2038, subject to extension or earlier termination of the Eligibility Period as set forth in this Agreement.

ARTICLE 2. ADDITIONAL RECITALS

2.1 The previously stated Recitals are incorporated herein and made a part hereof as though fully set forth.

2.2 The City has determined that the long-term operation of the HSSO will result in substantial benefits to the City, and its citizens including, without limitation, the creation of new employment opportunities, property tax revenues, sales tax revenues and other ancillary benefits.

Accordingly, the City has also determined that its entry into this Covenant Agreement and its purchase of the Covenants serve a significant public purpose, while providing only incidental benefits to a private party.

ARTICLE 3. COVENANTS RUNNING WITH THE LAND; COVENANT PAYMENTS; REMEDIES FOR BREACH.
141

8 3.1 Covenants Running with the Land.

3.1.1 Operating and Use Covenant. Owner covenants and agrees that for the Covenant Term Owner shall operate, or cause to be operated upon the Property, the HSSO in a commercially reasonable business manner, consistent with all applicable provisions of federal, state and local laws and regulations. Owner covenants and agrees that for the Covenant Term, Owner shall operate the HSSO in the City as Owner’s only sales office in California for the Petroleum Business and all product shall be sold from the HSSO and shipped FOB Destination.

3.1.2 Covenant to Designate City as Point of Sale. Owner covenants and agrees that, for the Covenant Term, Owner shall maintain such licenses and permits as may be required by any governmental agency to conduct Owner’s Sales Activities related to the HSSO and the Petroleum Business in California. Except as otherwise provided by applicable Law, Owner shall use commercially reasonable efforts to designate City as a “point of sale” and consummate at the HSSO all Taxable Aliso Viejo Sales and the Owner shall identify the City as such in its reports to the BOE in accordance with the Bradley-Burns Uniform Local Sales and Use Tax Law (Revenue and Taxation Code 7200, et seq.), as it may be amended or substituted.

Owner shall use commercially reasonable efforts to facilitate applicable product sales to California residents from the HSSO. The Owner shall consummate all Taxable Aliso Viejo Sales transactions for Owner’s Sales Activities at the HSSO, consistent with all applicable statutory and BOE regulatory requirements applicable to Owner’s Sales Activities and the designation of the City as the “point of sale” for all such Taxable Aliso Viejo Sales.

3.1.3 Owner’s Additional Obligations Regarding Repairs and Alterations to Headquarters. Owner covenants and agrees that, for the Covenant Term, the Owner shall maintain, or cause to be maintained, the HSSO in good condition, ordinary wear and tear excepted, and free from the accumulation of trash or other debris and agrees to promptly remove, or cause the removal of, all graffiti upon the HSSO. It is anticipated that Owner will be leasing the Property for the operation of the HSSO, however, if Owner, during the Covenant Term, relocates to another property or acquires the Property from which the HSSO will be located, Owner shall also maintain or cause to be maintained the landscaping upon the Property in first class condition.

3.1.4 Covenant Against Solicitation and Acceptance of Economic Incentives During the Term of the Operating Use Covenant. Owner covenants and agrees that, for the Covenant Term, Owner will not directly or indirectly solicit or accept any “Financial Assistance” from any other public or private person or entity, if such Financial Assistance is given for the express or implied purpose of causing or would result in Owner’s breach of any of the Covenants. For purposes of this Section 3.1.4 the term “Financial Assistance” means any direct or indirect payment, subsidy, rebate, or other similar or dissimilar monetary or non-monetary benefit, including, without implied limitation, payment of land subsidies, relocation expenses, public financings, property or sales tax relief, rebates, exemptions or credits, relief from public improvement obligations, and payment for public improvements to or for the benefit of Owner.

3.1.5 Use of Property. Owner covenants and agrees that the Property shall be put to no use other than those uses specified in the City’s General Plan, the Specific Plan, zoning ordinances, and this Covenant Agreement as the same may be amended from time to time. 142

9 Nothing in this Section 3.1.5 shall limit, expand, modify or otherwise affect any right of the Owner to continue any legal nonconforming use upon the Property following changes in the City’s General Plan or zoning ordinances.

3.1.6 Jobs Creation and Operational Agreement. Owner agrees that as of the Effective Date of this Agreement the establishment of the HSSO shall result in the creation of not less than one job in the City and Owner shall use its commercially reasonably efforts to expand the workforce at the Property each year of the Covenant Term. Owner also covenants and agrees that, to the extent Owner holds sales team meetings for sales employees in California, those sales team meetings shall be held in the City. Owner covenants and agrees that local sales staff shall be assigned to work from the HSSO.

3.2 Covenant Payments.

3.2.1 Statement of Intent. The City’s obligations under this Section 3.2 are contingent on a Computation Quarter-to-Quarter basis and, for each Computation Quarter, City’s obligations to make any payments hereunder are expressly contingent upon the Owner having, for the entirety of such Computation Quarter, completely fulfilled its material obligations under this Covenant Agreement, including, without limitation, the Covenants. Should such condition precedent not be satisfied for each Computation Quarter, then City shall have no obligation under this Section 3.2 to make any Covenant Payments to Owner in such Computation Quarter.

3.2.2 Covenant Payments. The consideration to be paid to the Owner in exchange for the Covenants and Owner’s performance of its obligations set forth in this Covenant Agreement, and subject to satisfaction of all conditions precedent thereto, shall consist of City’s payment to the Owner for each Computation Quarter during the Eligibility Period that the City receives Sales Tax Revenue, an amount equal to the sum of fifty percent (50%) of the Sales Tax Revenues attributable to annual taxable sales for the fiscal year which includes such Computation Quarter up to eight hundred thousand dollars ($800,000) as determined on a cumulative basis for such fiscal year, and seventy percent (70%) of the Sales Tax Revenues attributable to annual taxable sales for the fiscal year which includes such Computation Quarter over eight hundred thousand dollars ($800,000), as determined on a cumulative basis for such fiscal year ending June 30.

3.2.3 Computation Quarter Covenant Payments. Within thirty (30) days from the date Owner is required by California law to file its quarterly reports to BOE, Owner shall submit to City a copy of the quarterly report sent to the BOE which sets forth the amount of sales taxes paid to the BOE during the Computation Quarter arising from Owner’s Sales Activities conducted at the HSSO. The Covenant Payment shall be calculated using the actual net amount of Sales Tax directly received by the City from the BOE during that Quarter. Within thirty days (30) days following receipt of the Sales Tax attributable to sales from the Petroleum Business, the City shall pay to Owner any Computation Quarter Covenant Payment due for such Computation Quarter.

3.2.4 Adjustments to Covenant Payment Amounts. If after City makes a Covenant Payment to Owner hereunder City or Owner determines that the Covenant Payment has been overpaid or underpaid and that an adjustment to a prior payment amount is warranted, 143

10 City or Owner, as the case may be, shall have the right to provide a written notice to the other Party itemizing the information supporting the adjustment and either (a) requiring the City or Owner to pay the amount of the underpayment or overpayment, as applicable, within thirty (30) days from the date such notice is delivered or (b) deduct the amount of the overpayment from the next Covenant Payment otherwise owing to Owner. The Parties shall cooperate with one another and share such information as may be reasonably required to ensure that any required adjustments (either an additional payment to Owner or a refund or credit to City) can be promptly made. If the Party receiving the notice disagrees with the request for adjustment, the Parties shall meet in good faith to resolve any dispute.

3.2.5 BOE Determination of Improperly Allocated Local Sales Tax Revenues. If, at any time during or after the Eligibility Period of this Covenant Agreement, the BOE determines that all or any portion of the Sales Tax Revenues received by the City were improperly allocated and/or paid to the City, and if the BOE requires repayment of, offsets against future sales tax payments, or otherwise recaptures from the City those improperly allocated and/or paid Sales Tax Revenues, then Owner shall, within thirty (30) calendar days after written demand from the City, repay all Covenant Payments (or applicable portions thereof) theretofore paid to Owner which are attributable to such repaid, offset or recaptured Sales Tax Revenues. If Owner fails to make such repayment within thirty (30) calendar days after the City’s written demand, then the City may deduct any amount required to be repaid by Owner under this Section 3.2.6 from any future Covenant Payments otherwise payable to Owner under this Covenant Agreement. This Section 3.2.6 shall survive the expiration or termination of this Covenant Agreement. The City will, within five (5) business days, contact Owner regarding any communication from the BOE pertaining to tax allocations associated with Owner’s business.

The City and Owner agree that, should the BOE question the correctness of the allocation or otherwise determine that there has been an improper allocation to the City, the City and Owner may engage their own legal counsel to use his or her best efforts to defend such allocation in all BOE administrative proceedings. For purposes of this paragraph, administrative proceedings include all BOE meetings, conferences and appeals before BOE. Owner shall reasonably cooperate with the City and its attorney. Additionally, Owner shall have the right, but not the obligation, to participate in any such administrative proceedings and may engage its own legal counsel or consultant, at its own cost.

3.2.6 Not a Pledge of Sales Tax. Owner acknowledges that the City is not making a pledge of Sales Tax Revenues, or any other particular source of funds; the definition of Sales Tax Revenues, as used herein, is used merely as a measure of the amount payment due hereunder and as means of computing the City’s payment in consideration for the Covenants. It is acknowledged by Owner that the City’s obligation to make payments is specifically contingent upon receipt by the City of the Sales Tax Revenues derived from operation of the HSSO.

3.2.7 Disclosure of Payments. Owner agrees that the Covenant Payments and the amounts thereof do not constitute a violation of Revenue and Taxation Code Section 7056 or any other provision of law pertaining to the disclosure of sales tax information, shall be a matter of public record, may be disclosed to any person, and may be included on the City’s warrant register. Owner waives any law that is contrary to any of the agreements in this section.

3.3 Default.
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11 3.3.1 Owner Default. City shall provide Owner with written notice of Owner’s failure (“Owner Default”) to perform any material provision of this Covenant Agreement, including, without limitation, the Covenants. Owner shall have thirty (30) days from the date of such notice to either cure such Owner Default, or, if such Owner Default cannot be reasonably cured during such thirty (30) day period, to commence to cure within said thirty (30) day period and diligently prosecute such cure to completion thereafter.

3.3.2 City Default. Owner shall provide City with written notice of City’s failure (“City Default”) to perform any material provision of this Covenant Agreement. City shall have thirty (30) days from the date of such notice to either cure such City Default, or, if such City Default cannot be reasonably cured during such thirty (30) day period, to commence to cure within said thirty (30) day period and diligently prosecute such cure to completion thereafter.

3.4 General Remedies for Default. Except as provided in Section 3.6, upon either a City or an Owner Default (as defined in Section 3.3), Owner or City (as applicable) shall have the right to seek all available legal and equitable remedies, unless otherwise expressly provided to the contrary herein. Unless prohibited by law or otherwise provided by a specific term of this Covenant Agreement, the rights and remedies of the City and the Owner under this Covenant Agreement are nonexclusive and all remedies hereunder may be exercised individually or cumulatively, and each Party may simultaneously pursue inconsistent and/or alternative remedies. Notwithstanding the foregoing, in addition to specific provisions of this Covenant Agreement, performance by either Party 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; supernatural causes; 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; acts of the other Party; acts or the failure to act of a public or governmental agency or entity (except that acts or the failure to act of a City shall not excuse performance by that City); or any other causes beyond the reasonable control or without the fault of the Party claiming an extension of time to perform.

3.5 Termination Either Party may, upon the Default of the other Party and in addition to pursuing all remedies otherwise available to it, terminate this Covenant Agreement and all of its obligations hereunder without cost, expense or liability to itself. The Covenant Agreement shall automatically terminate at the end of the Eligibility Period.

3.6 Liquidated Damages.

3.6.1 Owner Default With Respect to Obligations Under Sections 3.1.1 and

3.1.2. The Parties acknowledge that the consideration to the City for its entry into this Covenant Agreement and the performance of its obligations hereunder include the City’s receipt of Sales Tax Revenues, employment and other payroll taxes, property taxes, and other direct and indirect financial and non-financial benefits arising from the operation of the Owner’s Sales Activities and the location of the HSSO in the City in accordance with Article 3 of this Covenant Agreement. Owner agrees that the City will suffer damages if Owner commits any Owner Default with respect to any of its obligations arising under Sections 3.1.1 and 3.1.2. The Parties 145

12 agree that the exact determination of such damages would be impracticable and extremely difficult to quantify. Accordingly, the Parties have determined that Liquidated Damages (as determined pursuant to Section 1.3.8) represents a reasonable estimate of the damages which would be suffered by the City if Owner commits any Owner Default with respect to any of its obligations set forth in Sections 3.1.1 and 3.1.2. Accordingly, as its sole and exclusive monetary remedy for an Owner Default with respect to any of its covenants and obligations set forth in Sections 3.1.1 and 3.1.2, the City shall be entitled to (1) terminate this Covenant Agreement and the entirety of its obligations hereunder, including any accrued and unpaid Covenant Payments, and (2) receive from Owner the applicable amount of Liquidated Damages as provided by Section 1.3.8.

3.6.2 ACKNOWLEDGEMENT OF REASONABLENESS OF
LIQUIDATED DAMAGES. UPON AN OWNER DEFAULT WITH RESPECT TO ANY OF ITS OBLIGATIONS SET FORTH IN SECTIONS 3.1.1 AND 3.1.2, FOLLOWING NOTICE AND OPPORTUNITY TO CURE PURSUANT TO SECTION 3.3.1, THE CITY AND

OWNER ACKNOWLEDGE AND AGREE THAT IT WOULD BE EXTREMELY DIFFICULT

AND IMPRACTICAL TO ASCERTAIN THE AMOUNT OF DAMAGES THAT WOULD BE SUFFERED BY THE CITY WITH RESPECT TO SUCH DEFAULT. HAVING MADE

DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL

DAMAGES THE CITY WOULD SUFFER, THE PARTIES AGREE THAT THE

LIQUIDATED DAMAGES AMOUNT AS DETERMINED IN ACCORDANCE WITH SECTION 1.3.8 REPRESENTS A REASONABLE ESTIMATION OF THOSE DAMAGES.

THEREFORE, UPON AN OWNER DEFAULT WITH RESPECT TO ANY OF ITS OBLIGATIONS SET FORTH IN SECTIONS 3.1.1 AND 3.1.2, AS ITS SOLE AND EXCLUSIVE REMEDY FOR SUCH DEFAULT, THE CITY SHALL BE ENTITLED TO (1)

RECEIPT OF THE LIQUIDATED DAMAGES AMOUNT CALCULATED IN
ACCORDANCE WITH SUBSECTION 1.3.8, WHICH OWNER SHALL PAY WITHIN TEN (10) DAYS FOLLOWING WRITTEN DEMAND FROM THE CITY, AND (2) TERMINATE

THIS AGREEMENT AND THE ENTIRETY OF ITS OBLIGATIONS HEREUNDER, INCLUDING ANY ACCRUED BUT YET UNPAID COVENANT PAYMENTS. __________________ __________________
Initials of Authorized Initials of Authorized
City Representative Owner Representative
ARTICLE 4. GENERAL TERMS

4.1 Tax Consequences. Owner acknowledges that it may experience tax consequences as a result of its receipt of the payments provided for in this Covenant Agreement and agrees that it shall bear any and all responsibility, liability, costs, and expenses connected in any way therewith.

4.2 Rights Not Granted Under Covenant Agreement. This Covenant Agreement is not, and shall not be construed to be, a Development Agreement under Government Code Section 65864 et seq. This Covenant Agreement is not, and shall not be construed to be, an approval or an agreement to issue permits or a granting of any right or entitlement by the City 146

13 concerning the HSSO, Owner’s Sales Activities or any other project, development, or construction by the Owner in the City. This Covenant Agreement does not, and shall not be construed to, exempt Owner from the application and/or exercise of the City’s power of eminent domain or its police power, including, but not limited to, the regulation of land uses and the taking of any actions necessary to protect the health, safety, and welfare of its citizenry.

4.3 Consent. Whenever consent or approval of any party is required under this Covenant Agreement, that party shall not unreasonably withhold, delay or condition such consent or approval unless otherwise allowed by a specific provision of this Covenant Agreement.

4.4 Notices and Demands. All notices or other communications required or permitted between the City and Owner under this Covenant Agreement shall be in writing, and may be (i) personally delivered, (ii) sent by United States registered or certified mail, postage prepaid, return receipt requested, (iii) sent by telecopier, or (iv) sent by nationally recognized overnight courier service (e.g., Federal Express), addressed to the Parties at the addresses provided in Article 1, subject to the right of either party to designate a different address for itself by notice similarly given. Any notice so given by registered or certified United States mail shall be deemed to have been given on the second business day after the same is deposited in the United States mail. Any notice not so given by registered or certified mail, such as notices delivered by telecopier or courier service (e.g., Federal Express), shall be deemed given upon receipt of the same by the party to whom the notice is given.

4.5 Nonliability of the City or City Officials and Employees. No board member, official, contractor, consultant, attorney or employee of the City shall be personally liable to Owner, any voluntary or involuntary successors or assignees, or any lender or other party holding an interest in the Property, in the event of any default or breach by the City, or for any amount which may become due to the Owner or to its successors or assignees, or on any obligations arising under this Covenant Agreement.

4.6 Nonliability of the Owner or Owner’s Officials and Employees. No board member, official, contractor, consultant, attorney or employee of Owner shall be personally liable to the City, any voluntary or involuntary successors or assignees in the event of any default or breach by Owner, or for any amount which may become due to the City or to its successors or assignees, or on any obligations arising under this Covenant Agreement.

4.7 Conflict of Interests. No board member, official, contractor, consultant, attorney or employee of the City or City shall have any personal interest, direct or indirect, in this Covenant Agreement nor shall any such board member, official or employee participate in any decision relating to this Covenant Agreement which affects his/her personal interests or the interests of any corporation, partnership or association in which he/she is directly or indirectly interested.

4.8 Pledge or Hypothecation of Covenant Payments. Owner may assign any Covenant Payment(s) due in accordance with the terms of this Covenant Agreement (but not any other right or obligation of this Covenant Agreement) upon thirty (30) days’ prior written notice to City as collateral for any loan or financing obtained by the Owner in connection with the 147

14 HSSO; provided that nothing in this Section 4.7 shall be deemed to limit the operation of Section

4.16. Without limiting the general applicability of the foregoing, Owner acknowledges that Owner’s lender and any transferee of Owner’s lender shall be subject to the transfer restrictions of Section 4.15.

4.9 Entire Agreement; Good Faith Negotiations. This Covenant Agreement contains all of the terms and conditions agreed upon by the Parties and supersedes any previous agreements between the Parties concerning the subject matter of this Covenant Agreement. No other understanding, oral or otherwise, regarding the subject matter of this Covenant Agreement shall be deemed to exist or to bind any of the parties hereto. All prior written or oral offers, counteroffers, memoranda of understanding, proposals and the like are superseded by this Covenant Agreement.

The Parties acknowledge that this Covenant Agreement is the product of mutual arms- length negotiations and that each party has been, or has had the opportunity to have been, represented by legal counsel in the negotiation and drafting of this Covenant Agreement.

Accordingly, the rule of judicial construction which provides that ambiguities in a document are to be construed against the drafter of that document shall have no application to the interpretation or enforcement of this Covenant Agreement.

4.10 Time Deadlines Critical; Extensions and Delays; No Excuse Due to Economic Changes. Time is of the essence in the performance of the City’s and Owner’s obligations under this Covenant Agreement. In addition to specific provisions of this Covenant Agreement providing for extensions of time, times for performance hereunder shall be extended where delays or defaults are due to war; insurrection; any form of labor dispute; lockouts; riots; floods; earthquakes; fires; acts of God or of third parties; third party litigation; acts of a public enemy; referenda; acts of governmental authorities (except that the failure of the City to act as required hereunder shall not excuse its performance); moratoria; epidemics; quarantine restrictions; and freight embargoes (collectively, “Enforced Delays”) provided, however, that the Party claiming the extension notify the other Party of the nature of the matter causing the default; and, provided further, that the extension of time shall be only for the period of the Enforced Delays. However, deadlines for performance may not be extended as provided above due to any inability of the Owner to obtain or maintain acceptable financing for the operation of the HSSO.

ANYTHING IN THIS COVENANT AGREEMENT TO THE CONTRARY

NOTWITHSTANDING, OWNER AND CITY, AND EACH OF THEM, EXPRESSLY

ASSUMES THE RISK OF UNFORESEEABLE CHANGES IN ECONOMIC

CIRCUMSTANCES AND/OR MARKET DEMAND/CONDITIONS AND WAIVES, TO

THE GREATEST LEGAL EXTENT, ANY DEFENSE, CLAIM, OR CAUSE OF ACTION

BASED IN WHOLE OR IN PART ON ECONOMIC NECESSITY,

IMPRACTICABILITY, FRUSTRATION OF PURPOSE, CHANGED ECONOMIC CIRCUMSTANCES OR SIMILAR THEORIES.

OWNER AND CITY, AND EACH OF THEM, EXPRESSLY AGREES THAT

ADVERSE CHANGES IN ECONOMIC CONDITIONS, EITHER OF THE OWNER

SPECIFICALLY, OR OF THE CITY SPECIFICALLY, OR THE ECONOMY

GENERALLY, OR CHANGES IN THE MARKET CONDITIONS OR DEMANDS, 148

15 SHALL NOT OPERATE TO EXCUSE OR DELAY THE STRICT OBSERVANCE OF

EACH AND EVERY OF THE OBLIGATIONS, COVENANTS, CONDITIONS AND REQUIREMENTS OF THIS COVENANT AGREEMENT. OWNER AND CITY, AND

EACH OF THEM, EXPRESSLY ASSUMES THE RISK OF SUCH ADVERSE

ECONOMIC OR MARKET CHANGES, WHETHER OR NOT FORESEEABLE AS OF OWNER’S EXECUTION OF THIS COVENANT AGREEMENT.

OWNER’S INITIALS _______ CITY’S INITIALS _______

4.11 Attorneys’ Fees. In the event of the bringing of an arbitration, action or suit by a Party hereto against another Party hereunder by reason of any breach of any of the covenants or agreements or any intentional inaccuracies in any of the representations and warranties on the part of the other Party arising out of this Covenant Agreement or any other dispute between the Parties concerning this Covenant Agreement or the Property, then, in that event, the prevailing party in such action or dispute, whether by final judgment or arbitration award, shall be entitled to have and recover of and from the other Party all costs, expenses and disbursements of suit or claim, including actual attorneys’ fees and expert witness’ fees. Any judgment, order or award entered in any final judgment or award shall contain a specific provision providing for the recovery of costs, expenses and disbursements of suit or claim, including actual attorneys’ fees and expert witness’ fees (collectively, the “Costs”) incurred in enforcing, perfecting and executing such judgment or award. For the purposes of this Section 4.10, “Costs” shall include, without implied limitation, attorneys’ and experts’ fees, costs and expenses incurred in the following: (i) post judgment motions and appeals, (ii) contempt proceedings, (iii) garnishment, levy and debtor and third party examination, (iv) discovery; and (v) bankruptcy litigation. This Section 4.10 shall survive any termination of this Covenant Agreement.

4.12 Amendments to This Covenant Agreement. Any amendments to this Covenant Agreement must be in writing and signed by the appropriate authorities of both the City and Owner. The City Manager is authorized on behalf of the City to approve and execute minor amendments to this Covenant Agreement, including, but not limited to, the granting of extensions of time to Owner, not to exceed ninety (90) days in the aggregate.

4.13 Jurisdiction and Venue. Any legal action or proceeding concerning this Covenant Agreement shall be filed and prosecuted in any federal or state court located in jurisdiction of the United States District Court, Central District of California. Both Parties hereto irrevocably consent to the personal jurisdiction of such a court. Owner acknowledges that the provisions of this Section 4.12 are material consideration to the City for its entry into this Covenant Agreement, in that the City will avoid the potential cost, expense and inconvenience of litigating in a distant forum.

4.14 Counterpart Originals; Integration. This Covenant Agreement may be executed in duplicate originals, each of which is deemed to be an original, but when taken together shall constitute but one and the same instrument. This Covenant Agreement and any exhibits represent the entire understanding of the Parties and supersedes all negotiations, letters 149

16 of intent, memoranda of understanding or previous agreements between the parties with respect to all or any part of the subject matter hereof.

4.15 No Waiver. Failure to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times.

4.16 Successors and Assigns. The terms, covenants and conditions of this Covenant Agreement shall be binding upon and inure to the benefit of the Parties hereto and their successors and assigns. Except as provided in this Section 4.16, Owner shall neither transfer nor convey Owner’s interest in the Covenant Agreement or any of Owner’s rights hereunder, without the express written consent of the City, which shall not be unreasonably withheld, conditioned or delayed. In determining whether to approve of a sale, transfer, conveyance or assignment of the Owner’s interest in the HSSO, the City shall evaluate: (i) the financial ability and fitness of the proposed transferee to own and operate the HSSO or portion so transferred, and to meet the Owner’s obligations under this Covenant Agreement; (ii) whether Owner’s operations in the City would be materially impacted; and (iii) the ability of the proposed transferee to generate a similar fiscal return to the City. Upon the permitted sale, transfer or conveyance by Owner of its interest therein, such Owner shall thereupon be relieved of its obligations under this Covenant Agreement from and after the date of sale, transfer or conveyance except with respect to any defaults in the performance of its obligations hereunder or thereunder which occurred prior to such sale, transfer or conveyance, and the transferee shall thereafter be solely responsible for the performance of all of the duties and obligations of Owner under this Covenant Agreement. In the event that Owner or the Owner’s assets that generate Owner’s Sales Activities are acquired by another business entity, and as a result of such acquisition the City cannot legally serve as the point of sale for all or a portion of the Owner’s Sales Activities, such acquisition shall not be deemed a breach of this Covenant Agreement but either party may terminate this Covenant Agreement.

4.17 No Third Party Beneficiaries. The performance of the respective obligations of the City and Owner under this Covenant Agreement are not intended to benefit any party other than the City or Owner, except as expressly provided otherwise herein. No person or entity not a signatory to this Covenant Agreement shall have any rights or causes of action against any party to this Covenant Agreement as a result of that party’s performance or non-performance under this Covenant Agreement, except as expressly provided otherwise herein.

4.18 No Effect on Eminent Domain Authority. Nothing in this Covenant Agreement shall be deemed to limit, modify, or abridge or affect in any manner whatsoever the City’s eminent domain powers with respect to the Property, the HSSO, or any other property owned by HSSO; provided however, that nothing in this Covenant Agreement shall relieve the City or any other governmental entity from its obligation to compensate Owner for any loss arising from such exercise of eminent domain powers, including without limitation, compensation for the Owner’s loss of rights or benefits hereunder.
150

17 4.19 Warranty Against Payment of Consideration for Covenant Agreement.

Owner warrants that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Covenant Agreement. Third parties, for the purposes of this Section 4.18, shall not include persons to whom fees are paid for professional services if rendered by attorneys, financial consultants, accountants, engineers, architects and the like when such fees are considered necessary by Owner.

4.20 Severability. The City and Owner declare that the provisions of this Covenant Agreement are severable. If it is determined by a court of competent jurisdiction that any term, condition or provision hereof is void, voidable, or unenforceable for any reason whatsoever, then such term, condition or provision shall be severed from this Covenant Agreement and the remainder of the Covenant Agreement enforced in accordance with its terms.

4.21 Further Acts and Releases. The City and Owner each agree to take such additional acts and execute such other documents as may be reasonable and necessary in the performance of their obligations hereunder.

4.22 Estoppels. At the request of Owner or any holder of a mortgage or deed of trust secured by all or any portion of the Property, the City shall promptly execute and deliver to Owner or such holder a written statement of the City as to any of the following matters as to which Owner or such holder may inquire: (i) that no default or breach exists, or would exist with the passage of time, or giving of notice, or both, by Owner pursuant to this Covenant Agreement, if such be the case; (ii) the total amount of Covenant Payments made by the City to Owner pursuant to this Covenant Agreement prior to the date of such written statement; (iii) the amount of any Covenant Payments earned by or due and owing to Owner pursuant to this Covenant Agreement as of the date of such written statement; (iv) the Covenant Payments for a particular Computation Quarter, if known; (v) if the City has determined that Owner is in default or breach hereunder, the nature of such default and the action or actions required to be taken by Owner to cure such default or breach; and (vi) any other matter affecting the rights or obligations of Owner hereunder as to which Owner or such holder may reasonably inquire. The form of any estoppel letter shall be prepared by Owner or such holder at its sole cost and expense and shall be reasonably acceptable in form and content to the City and Owner. The City may make any of the representations described above based on the actual current knowledge of the then-current City Manager.

4.23 Indemnity By Owner. Owner shall defend (using counsel mutually agreed upon), indemnify and hold harmless the City, its elected officials, officers, employees and agents from and against any and all third party claims, losses, proceedings, damages, causes of action, liability, cost and expense (including reasonable attorney’s fees) arising from, in connection with or related to this Covenant Agreement or the functions or operations of the Headquarters (other than to the extent arising as a result of the City’s negligence or willful misconduct). The City shall fully cooperate in the defense of any such actions and upon written request of Owner shall provide to Owner such documents and records in possession of the City that are relevant to such actions and not otherwise protected by law. Notwithstanding the foregoing, should any third party bring any such action or proceeding Owner shall have the right to terminate this Covenant Agreement, and as of such date of termination, all unaccrued liabilities of the parties under this Covenant Agreement shall cease except for Owner’s obligation of indemnity owed to the City as 151

18 provided in this Section 4.23. For purposes of clarification, should Owner exercise its termination right as provided in this Section 4.23, the same shall not be considered a Default and the City shall have no claims against Owner for such termination.

4.24 State of California Legislation Impact on Covenant Payment. Owner acknowledges that the California legislature has in the past adopted certain legislation which diverted to the State of California a portion of the Sales Tax Revenues which were otherwise payable to the City. Owner acknowledges that it is possible that the legislature may enact similar legislation in the future which would cause a corresponding reduction of and/or delay in the payment of the Sales Tax Revenues and that such reduction will cause Owner a corresponding reduction and/or delay in the payment of the Covenant Payments due to Owner during such time as such legislation is in effect. Furthermore, Owner acknowledges that it is possible that the legislation described above, or some variant thereof, may be enacted and effective during one or more subsequent times during the Eligibility Period and may materially and negatively impact the amount of Sales Tax Revenues and, accordingly, Covenant Payments. The City does not make any representation, warranty or commitment concerning the future actions of the California legislature with respect to the allocation of Sales Tax Revenues to the City. Owner agrees that it is undertaking its obligations under this Covenant Agreement after having considered, and is expressly assuming the risk of, the possibility of the enactment of such legislation.

In the event that such legislation, or other legislation prohibiting or restricting the City’s ability to make Covenant Payments to Owner, is enacted, either Party may terminate this Agreement without liability to the other.

[Signatures on the following pages]
152

19 SIGNATURE PAGE TO THE

OPERATING COVENANT AGREEMENT

BY AND BETWEEN

THE CITY OF ALISO VIEJO
AND

HUNT & SONS, LLC

CITY OF ALISO VIEJO
a California municipal corporation
By: __________________________________
David Doyle
City Manager

ATTEST:

By: ______________________________
Mitzi Ortiz, MMC
City Clerk

APPROVED AS TO FORM:

By: ______________________________
Scott Smith
City Attorney

153

20 SIGNATURE PAGE TO THE

OPERATING COVENANT AGREEMENT

BY AND BETWEEN

THE CITY OF ALISO VIEJO
AND

HUNT & SONS, LLC

HUNT & SONS
a limited liability company

By: __________________________________

Louis P. Burke
Vice President, Hunt & Sons LLC

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60367.00500\29096996.1

ECONOMIC DEVELOPMENT SUBSIDY REPORT
PURSUANT TO GOVERNMENT CODE SECTION 53083

FOR AN OPERATING COVENANT AGREEMENT

BY AND BETWEEN

CITY OF ALISO VIEJO
AND
HUNT & SONS, LLC.

Pursuant to Government Code Section 53083, the City Council of the City of Aliso Viejo must hold a noticed public hearing and, prior to the public hearing, provide all of the following information in written form and available to the public and through the City’s website, regarding a proposed economic development subsidy to be provided by the City pursuant to an Operating Covenant Agreement by and between the City of Aliso Viejo and Hunt & Sons, LLC (“Agreement”). Notice was published in the local newspaper for a public hearing to be held on September 6, 2023.

The purpose of this report is to provide the information required pursuant to Government Code Section 53083 in regard to the Agreement. This report shall remain available to the public and posted on the City’s website until the end date of the economic development subsidy, as further described in number 2 below.

1. The name and address of all corporations or any other business entities, except for sole proprietorships, that are the beneficiary of the economic development subsidy.

The Agreement is with Hunt & Sons, LLC., a Delaware limited liability company (“Owner”). Owner is the sole beneficiary of the economic development subsidy.

Hunt & Sons, LLC
65 Enterprise, Suite 425
Aliso Viejo, CA 92656

2. The start and end dates and schedule, if applicable, for the economic development subsidy.

If the Agreement is approved by the City Council, in consideration for Hunt & Sons, LLC’s performance of its covenants and other obligations pursuant to the Agreement, the Covenant Period shall commence on September 1, 2023, and continue for fifteen (15) years, with a potential extension for an additional fifteen (15) years (30 years total).

Covenant Payments shall commence within thirty (30) days following receipt of the Sales Tax from the State Board of Equalization attributable to sales from Hunt & Sons and continue on a Computation Quarter by Computation Quarter basis for the term of the term of the agreement.
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3. A description of the economic development subsidy, including the estimated total amount of the expenditure of public funds by, or of revenue lost to, the local agency as a result of the economic development subsidy.

Hunt & Sons shall receive an amount equal to fifty percent (50%) of Sales Tax Revenues received by the City of the first Eight Hundred Thousand Dollars ($800,000) in Sales Tax attributable to Hunt & Sons. Hunt & Sons shall receive an amount equal to seventy percent (70%) of Sales Tax Revenue received by City over the initial Eight Hundred Thousand Dollars ($800,000). The presence of Hunt and Sons is estimated to result between Five Hundred Five Thousand Dollars ($505,000) and Eight Hundred Eighty Thousand Dollars ($880,000) in additional Sales Tax to the City annually or between an estimated Seven Million Five Hundred Seventy-Five Thousand Dollars ($7,575,000) and Thirteen Million Two Hundred Thousand Dollars ($13,200,000) over the 15-year term.

The economic development subsidy to Hunt and Sons shall be between approximately Six Hundred Forty-Five Thousand Dollars ($645,000) and One Million Five Hundred Twenty Thousand Dollars ($1,520,000). The total economic development subsidy to Hunt and Sons over the 15-year term shall be between approximately Nine Million Six Hundred Seventy-Five Thousand Dollars ($9,675,000) and Twenty-Two Million Eight Hundred Thousand Dollars ($22,800,000).

The City estimates that the total amount of the expenditure or loss of revenue of public funds as a result of the economic development subsidy will be up to an estimated Twenty-Two Million Eight Hundred Thousand Dollars ($22,800,000).

4. A statement of the public purposes for the economic development subsidy.

Hunt & Sons, LLC is an independent wholesale distributor of gasoline, diesel, and other refined petroleum products and currently operates an on-site mobile fueling business within the City of Aliso Viejo. Hunt & Sons has decided to stay within Aliso Viejo and expand its operations. Without an agreement to remain, Hunt & Sons could consider relocating its business away from the City. The economic development subsidy will ensure that Hunt & Sons, LLC remains within the City and expand its operations within the City for a period of not less than fifteen (15) years. 156
60367.00500\29096996.1
The City has determined that the retention and expansion of Hunt & Sons, LLC, as described in the preceding paragraph, will generate substantial revenue for the City to maintain government services, such as public safety, recreation programs, public works, building and safety, and other essential services to residents and businesses in Aliso Viejo.

Further, the retention and expansion of Hunt & Sons serves the additional public purpose of fostering a business and civic environment that may attract additional businesses and investment in the community due to the availability of the increased public and private services and economic activity resulting therefrom, thereby assisting the City in its goal of furthering the development of the community. This Agreement furthers the policies of the City to be business friendly and support economic growth including numerous Land Use Element Goals of the General Plan and furtherance of the City’s Economic Development Plan.

5. The projected tax revenue to the local agency as a result of the economic development subsidy.

The City anticipates that the retention and expansion of Hunt & Sons, LLC operations within the City will result in an approximate increase of annual sales tax revenue between Seventeen Million Two Hundred Fifty Thousand Dollars ($17,250,000) and Thirty Six Million Dollars ($36,000,000), minus the covenant payments to be paid to Hunt & Sons, as set forth in number 2 above.

6. The estimated number of jobs created by the economic development subsidy, broken down by full-time, part-time, and temporary positions.

The retention and expansion of Hunt & Sons, LLC within the City is anticipated to result in the creation of the following jobs and a commitment to use commercially reasonable efforts to increase the workforce at the location.

 1 full-time job
 0 part-time jobs
 0 temporary positions
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City of Aliso Viejo

AGENDA ITEM
DATE: September 6, 2023
TO: Mayor and City Council
FROM: So Kim, Director of Community Development
SUBJECT: TIME EXTENSION REQUEST FOR A SITE DEVELOPMENT PERMIT AND EXTENSION PERMIT AT 6 POLARIS WAY
Recommended Action:

Approve, via Minute Order, a time extension request to extend the validity of a Site Development Permit and Extension Permit for the construction of a 42,400 square foot, two-story general office building and a 423 space, 4½ level parking structure with a 7.6% parking reduction at 6 Polaris Way (PA15-030).

Background:

On June 1, 2016, the City Council adopted Resolution Nos. 2016-22, 2016-23, and 2016- 24 for the following: 1) Adopt an initial study/mitigated negative declaration; 2) Approve a Tentative Parcel Map 2015-155 for Parcel 1 of Lot Line Adjustment 97-054; and 3) Construct a 42,400 square foot, two-story general office building and a 423 space, 4½ level parking structure with a 7.6% parking exception on 4.037 acres at 6 Polaris Way (“Project”). Subsequently, the City Council approved two time extensions to the Project, setting the expiration date to February 6, 2020.

In 2020, due to the state of emergency caused by COVID-19, all City-issued permits that would have otherwise expired were automatically extended. With the recent end of state and local emergencies, the City-issued permits expired on April 1, 2023. The applicant submitted a time extension request prior to this date for processing.

Discussion:

Pursuant to Municipal Code (AVMC) Section 15.74.100, two one-year time extensions may be granted by the decision-making authority, which shall not include extensions granted prior to April 15, 2020. Since 2020, a time extension for the Project was automatically granted as part of the California’s COVID-19 state of emergency, extending the validity date through April 1, 2023. The Project may be extended one last time for a period of one-year, provided that the original findings can still be made (i.e. originally approved project). The Applicant is requesting a final time extension based on the 158

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Aliso Viejo City CouncilSeptember 6, 2023

Aliso Viejo City Council
September 6, 2023