Agenda packet — Cypress City Council, May 8, 2023 (part 2 of 2)

12. Loan Servicing. City may contract with a private lender or other person or entity (the “Administrator”) to carry out City’s obligations under this Agreement. Any reference to the duties of City herein shall also apply to the Administrator.

13. Participant Financing. Participant shall obtain first trust deed financing for the purchase of the Property from a reputable institutional lender (the “Lender”). In addition, Participant must make a down payment of not less than three percent (3%) of the “Purchase Price” (as defined below). Nothing in this Agreement shall be construed as a promise or guaranty by City that the Participant will qualify for or receive such first trust deed financing. For purposes of this Section 13, “Purchase Price” is the original purchase price paid by the Participant to the prior owner of the Property, together with all escrow fees, recording fees, transfer taxes, title insurance costs, broker’s fees, loan fees and any other closing or transaction costs paid by Participant.

14. Title Insurance. As a condition to the sale of the Property to Participant at an affordable sales price, Participant, at no cost to City, shall obtain and cause to be delivered to City a standard form ALTA Lender’s policy of Title Insurance, issued by a title company as may be mutually approved by City and Participant, in an amount not less than the FMV Difference, insuring the priority of the City Deed of Trust against all monetary liens and encumbrances against the Property, including but not limited to, mechanic’s liens claims and excepting only (i) the lien of any non-delinquent property taxes; (ii) the First Lien and Subordination Agreement referred to 2671/017943-0030
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in Section 15; and (iii) other encumbrances and exceptions to title as may be approved by City in City’s sole and absolute discretion.

15. Covenants Do Not Impair Lien. City agrees to subordinate the provisions of this Agreement and the City Deed of Trust to any First Lien on the Property held by the Lender by recording a subordination agreement, in a form approved by City (“Subordination Agreement”).

Participant agrees it shall instruct the Escrow Agent for the acquisition of the Property by the Participant that the order of recording in the escrow for the purchase of the Property by the Participant shall occur as follows: 1) this Agreement; 2) the City Deed of Trust; 3) the First Lien; and 4) the Subordination Agreement.

Participant shall cause a Request for Notice to be recorded on the Property subsequent to the recordation of the First Lien deed of trust or mortgage requesting a statutory notice of default as set forth in the California Civil Code Section 29246. Such notice shall be sent to: City of Cypress, 5275 Orange Avenue, Cypress, California 90630, Attention: City Manager.

16. Indemnification. Participant shall defend, indemnify and hold harmless City and City’s officers, officials, agents, members, employees, representatives, and volunteers from and against any loss, liability, claim, or judgment relating in any manner to the Property or this Agreement. The Participant shall remain fully obligated for the payment of taxes, liens and assessments related to the Property. There shall be no reduction in taxes for Participant, nor any transfer of responsibility to City to make such payments, by virtue of the FMV Difference.

17. Defaults. Failure or delay by either Party to perform any term or provision of this Agreement which is not cured within thirty (30) days after receipt of notice from the other Party constitutes a default under this Agreement; provided, however, if such default is of the nature requiring more than thirty (30) days to cure, the defaulting Party shall avoid default hereunder by commencing to cure within such thirty (30) day period, and thereafter diligently pursuing such cure to completion. The Party who so fails or delays must immediately commence to cure, correct or remedy such failure or delay, and shall complete such cure, correction or remedy with diligence.

The injured Party shall give written notice of default to the Party in default, specifying the default complained of by the injured Party. Except as required to protect against further damages, the injured Party may not institute proceedings against the Party in default until thirty (30) days after giving such notice. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default.

18. Covenant to Keep Property Drug Free. Participant covenants to City that Participant and all persons residing on the Property shall not unlawfully manufacture, distribute, dispense, possess or use controlled substances, as said term is defined in 21 United States Code Section 812 and California Health and Safety Code Section 11007, including heroin, cocaine, and amphetamines on the Property. If Participant or any person residing on the Property is convicted, pleads guilty or nolo contendere to a charge of unlawfully manufacturing, distributing, dispensing, possessing or using controlled substances on the Property, then such event shall be a default of this Agreement, which shall entitle City to accelerate repayment of the FMV Difference and Shared Appreciation within sixty (60) days after City’s notice of said default. 2671/017943-0030
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19. Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.

20. Covenants to Run with the Land. All conditions, covenants, and restrictions contained in this Agreement shall be covenants running with the land, and shall, in any event, and without regard to technical classification or designation, legal or otherwise, be, to the fullest extent permitted by law and equity, binding for the benefit and in favor of, and enforceable by, City and its successors and assigns, against Participant, its successors and assigns, to or of the Property or any portion thereof or any interest therein, and any party in possession or occupancy of said Property or portion thereof.

In amplification and not in restriction of the provisions set forth hereinabove, it is intended and agreed that City shall be deemed a beneficiary of the agreements and covenants provided hereinabove both for and in its own right and also for the purposes of protecting the interests of the community. All covenants without regard to technical classification or designation shall be binding for the benefit of City and such covenants shall run in favor of City for the entire period during which such covenants shall be in force and effect, without regard to whether City is or remains an owner of any land or interest therein to which such covenants relate. City shall have the right, in the event of any breach of any such agreement or covenant, to exercise all the rights and remedies, and to maintain any action at law or suit in equity or other proper proceedings to enforce the curing of such breach of agreement or covenant.

In further amplification and not in restriction of the provisions set forth hereinabove, the covenants, conditions, and restrictions, including resale restrictions, that touch and concern the Property shall run with the land in perpetuity. Upon the Transfer of any Affordable Unit by the Participant, the covenants, conditions, and restrictions, including resale restrictions, shall run with the land and remain the obligation of the owner of the Property with oversight by the Association in accordance with the CC&Rs, which shall comply in perpetuity with Conditions of Approval numbers 6.5, 6.6, 6.7, 6.8, and 6.9 for Conditional Use Permit (CUP) No. 2021-03 and Vesting Tentative Tract Map No. 19, approved by the City in accordance with the CC Resolutions.

21. Non-Waiver. Failure to exercise any right City may have or be entitled to, in the event of default hereunder, shall not constitute a waiver of such right or any other right in the event of a subsequent default.

22. Further Assurances. The Participant shall execute any further documents consistent with the terms of this Agreement, including documents in recordable form, as City shall from time to time find necessary or appropriate to effectuate its purposes in entering into this Agreement.

23. Governing Law. This Agreement shall be governed by the laws of the State of California. Any legal action brought under this Agreement must be instituted in the Superior Court of the County of Orange, State of California or in the Federal District Court in the District of California in which Orange County is located.
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24. Amendment to Agreement. No modification, rescission, waiver, release or amendment of any provision of this Agreement shall be made except by a written agreement executed by the Participant and City.

25. City May Assign. City may, at its option, assign its right to receive repayment of the FMV Difference and Shared Appreciation proceeds without obtaining the consent of the Participant.

26. Participant Assignment Prohibited. Except as expressly provided hereinabove, in no event shall Participant assign or transfer any portion of this Agreement or any of the other agreements referred to herein without the prior express written consent of City. Any such assignee or transferee shall be required to expressly assume this Agreement by execution of a written assignment document to be provided by City.

27. Relationship of Participant and City. The relationship of Participant and City pursuant to this Agreement is that of debtor and creditor and shall not be or be construed to be a joint venture, equity venture, partnership, or other relationship.

28. Notices. Any notices, requests or approvals given under this Agreement from one Party to another may be personally delivered or deposited with the United States Postal Service for mailing, postage prepaid, registered or certified mail, return receipt requested to the following address:

To Participant: ________________________________
________________________________
________________________________
To City: City of Cypress
5275 Orange Avenue
Cypress, CA 90630
Attention: Planning Director
Either Party may change its address for notice by giving written notice thereof to the other Party.

29. Attorneys’ Fees and Costs. In the event that any action is instituted to enforce payment or performance under this Agreement, the Parties agree the non-prevailing Party shall be responsible for and shall pay all costs, including expert witness fees, and all attorneys’ fees incurred by such prevailing Party in enforcing this Agreement.

30. Entire Agreement. This Agreement, together with all attachments hereto, constitutes the entire understanding and agreement of the Parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental thereto, and supersedes all prior negotiations, discussions and previous agreements between City and the Participant concerning all or any part of the subject matter of this Agreement.
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31. Authority. Each signatory hereto warrants to the other Party that it has authority to sign on behalf of the Party for whom it purports to sign.

32. Non-Liability of Officers and Employees. No officer, official, member, employee, agent, or representative of City shall be personally liable to Participant, or any successor or assign of same, in the event of any default or breach by City, or for any amount which may become due to Participant, or any successor or assign of same, or for breach of any obligation of the terms of this Agreement.

33. Time of Essence. Time is of the essence of every portion of this Agreement in which time is a material part.

34. Interpretation; Severability. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party hereto by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Agreement. Each provision of this Agreement shall be severable from the whole. If any provision of this Agreement shall be found contrary to law, the remainder of this Agreement shall continue in full force.

35. Integration; Amendment. It is understood that there are no oral agreements between the Parties hereto affecting this Agreement, and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements, and understandings, if any, between the Parties with respect to the subject matter hereof, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the Parties by an instrument in writing.

36. Counterparts. This Agreement may be executed in counterparts, each of which, when this Agreement has been signed by each of the Parties hereto, shall be deemed to be an original.
[signatures on next page]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year written below.

Date: _______________, _____
“Participant”
By:

Printed Name:

Date: _______________, _____
By:

Printed Name:

Date: _______________, _____
“City”
CITY OF CYPRESS, a California municipal
corporation
By:

ATTEST:

City Clerk
APPROVED AS TO FORM:

Aleshire & Wynder, LLP
City Attorney
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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
County of Orange )
On _________________________, before me, , (insert name and title of the officer) Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature (Seal)
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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature (Seal)
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EXHIBIT “A”

LEGAL DESCRIPTION OF THE PROPERTY
[to be inserted]
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EXHIBIT “B”

REIMBURSEMENT AGREEMENT
[see following document]
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REIMBURSEMENT AGREEMENT

SECURED BY DEED OF TRUST
$_____________________ Cypress, California
___________________, 20__
FOR VALUE RECEIVED, the undersigned ______________________ (the “Borrower”) promises to pay to the CITY OF CYPRESS, a California municipal corporation (the “City”), the principal sum of ______________________________ Dollars ($_____________) (“FMV Difference”) plus the City’s share of the appreciation of the Property (“Shared Appreciation”) as defined in the Equity Sharing Agreement referenced in Section 3 below.

THIS IS A SHARED APPRECIATION AGREEMENT. CITY’S INTEREST INCLUDES A PERCENTAGE OF THE APPRECIATED VALUE OF THE PROPERTY. A BALLOON PAYMENT WILL BE REQUIRED. FOR FURTHER INFORMATION, READ THE TRUTH IN LENDING DISCLOSURE STATEMENT PROVIDED BY THE CITY.

1. Capitalized Terms. Unless otherwise expressly defined herein, all capitalized terms shall have the meanings ascribed thereto in the Equity Sharing Agreement.

2. Security. This Reimbursement Agreement (“Agreement”) is secured by a Deed of Trust with an Assignment of Rents and Rider to Deed of Trust Attached Hereto of even date herewith (“Deed of Trust”) for purchase of the property located at _________________, Unit ____, Cypress, California, APN No. ___________, as more particularly described in the legal description attached to the Deed of Trust (the “Property”). The Deed of Trust is incorporated herein by reference as if set forth in full.

3. Equity Sharing Agreement. Borrower acknowledges that the Property was developed as an affordable housing unit, which enabled Borrower to acquire the Property at a purchase price below the market price for the Property. In connection with Borrower’s purchase of the Property, City and Borrower have, concurrently herewith, entered into an Equity Sharing Agreement that requires Borrower, upon the occurrence of certain events, including, without limitation, Borrower’s sale of the Property, to repay the difference between Borrower’s purchase price for the Property and the market price for the Property, plus a share of the Property’s appreciation during Borrower’s ownership of the Property, all as more fully set forth in the Equity Sharing Agreement.

4. No Assumption of Note by Subsequent Buyers. Except in connection with an Exempt Transfer, this Agreement shall not be assignable or assumable without the express prior written consent of City, which consent may be given or withheld in City’s sole and absolute discretion.

5. City May Assign. City may, at its option, assign its right to receive payment under this Agreement without obtaining the consent of Borrower. 2671/017943-0030
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6. Terms of Repayment of FMV Difference and Payment of Shared Appreciation. a. The full amount of the FMV Difference and the Shared Appreciation shall be immediately due and payable by Borrower upon a Transfer of the Property, with the exception of an Exempt Transfer. Borrower’s obligation to pay the Shared Appreciation to City upon a Transfer of the Property is subject to a superior right of Borrower to receive repayment of money paid by Borrower for purchase of the Property and the capital improvements to the Property, in accordance with Civil Code Section 1917.006.
b. Payment shall be made in lawful money of the United States. Payments shall be made to City at: 5275 Orange Avenue, Cypress California 90630, or such other place as the City or the holder of this Agreement may designate in writing.

7. Attorney Fees and Costs. Borrower shall pay all costs and expenses of collection and reasonable attorney fees paid or incurred by City in connection with the collection or enforcement of this Agreement, whether or not suit is filed.

8. Joint and Several Obligations. This Agreementis the joint and several obligation of all makers, sureties, guarantors and endorsers, and shall be binding upon them and their successors and assigns.

9. Default. Borrower shall be deemed in default of this Agreementin the event Borrower (a) fails to timely make any payment required by this Promissory Note or fails to perform any other obligation under this Agreement, or (b) defaults on any of its obligations set forth in the Equity Sharing Agreement or the Deed of Trust, including without limitation the obligation to occupy the Property as Borrower’s primary residence for the required period, and fails to timely cure the default under the terms of the applicable document, or if there is no cure period, within thirty (30) days after notice of the default; or (c) defaults on any obligations under any documents relating to any other financing that is secured by the Property. In the event of a default, City may, at its option, declare this Agreement immediately due and payable pursuant to Section 10.

10. Acceleration Upon Default. Upon the occurrence of a default under this Agreement, the Equity Sharing Agreement, or the Deed of Trust, and if such default is not cured within the applicable cure period, City shall have the right to declare the full amount of the FMV Difference and Shared Appreciation immediately due and payable. No delay or omission on the part of City in exercising any right hereunder shall constitute a waiver of any such right or of any other right under this Agreement, the Deed of Trust, or the Equity Sharing Agreement.

11. No Offset. Borrower hereby waives any rights of offset it now has or may hereafter have against City, its successors and assigns, and agrees to make the payments called for herein in accordance with the terms of this Agreement.

12. Waiver. To the extent permitted by law, Borrower and any endorsers or guarantors of this Agreement, for themselves, their heirs, legal representatives, successors and assigns, respectively, severally waive diligence, presentment, protest, and demand, and notice of protest, notice of dishonor and notice of non-payment of the FMV Difference and Shared Appreciation, 2671/017943-0030
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and expressly waive any rights to be released by reason of any extension of time or change in terms of payment, or change, alteration or release of any security given for the payments hereof, and expressly waive the right to plead any and all statutes of limitations as a defense to any demand on the FMV Difference and Shared Appreciation or agreement to pay the same, and jointly and severally agree to pay all costs of collection when incurred, including reasonable attorneys’ fees.

13. Severability. If any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.

14. No Waiver by the City. No waiver of any breach, default or failure of condition under the terms of this Agreement shall be implied from any failure of City to take, or any delay by City in taking, action with respect to such breach, default or failure or from any previous waiver of any similar or unrelated breach, default or failure; and a waiver of any term of this Agreement must be made in writing and shall be limited to the express written terms of such waiver.

BORROWER SIGNATURE(S):
____________________________________________
____________________, Borrower
____________________________________________
____________________, Borrower
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EXHIBIT “C”

CITY DEED OF TRUST
[see following document]
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Order No.

Escrow No.

Loan No.

WHEN RECORDED MAIL TO:

CITY OF CYPRESS
5275 Orange Avenue
Cypress, CA 90630
Attn: City Clerk
(Space Above This Line For Recorder’s Use)
(Exempt From Recording Fees Pursuant To Government Code Section 27383)

DEED OF TRUST WITH ASSIGNMENT OF RENTS AND RIDER

TO DEED OF TRUST ATTACHED HERETO
This DEED OF TRUST WITH ASSIGNMENT OF RENTS AND RIDER TO DEED OF TRUST ATTACHED HERETO (“Deed of Trust”), made this _____ day of _______________, between ______________________________, herein called “PARTICIPANT” or “TRUSTOR,” whose address is ______________________________, Cypress, CA 90630, CHICAGO TITLE INSURANCE COMPANY, a California corporation, herein called TRUSTEE, and the CITY OF CYPRESS, herein called BENEFICIARY,
WITNESSETH: That Participant grants to Trustee in trust, with power of sale, that property in the City of Cypress, County of Orange, State of California, described in the legal description attached hereto as Exhibit “A”, together with rents, issues and profits thereof, subject, however, to the right, power and authority hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues and profits for the purpose of securing (1) payment of the sum of $____________________, and a portion of the appreciation of the Property, according to the terms of a Reimbursement Agreement of even date herewith made by Participant, payable to order of Beneficiary, and extensions or renewals thereof; (2) the performance of each agreement of Participant incorporated by reference or contained herein; and (3) payment of additional sums and interest thereon which may hereafter be loaned to Participant, or his successors or assigns, when evidenced by a promissory note or notes reciting that they are secured by this Deed of Trust.

A. To protect the security of this Deed of Trust, Participant agrees:
1) To keep said property in good condition and repair, not to remove or demolish any building thereon; to complete or restore promptly and in a good and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay when due all claims for labor performed and materials furnished therefor, to comply with all laws affecting said property or requiring any alterations or improvements to be made thereon; not to commit or permit waste thereof; not to commit, suffer or permit any act upon said property in violation of law; to cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of said property may be reasonably necessary, the specific enumerations herein not excluding the general. 2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary. The amount collected under any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order as Beneficiary may determine, or at the option of Beneficiary the entire amount so collected or any part thereof may be released to Participant. Such application or release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorney’s fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed.
4) To pay: at least ten days before delinquency all taxes and assessments affecting said property, including assessments on appurtenant water stock; when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear to be prior or superior hereto; all costs, fees and expenses of this Trust.

Should Participant fail to make any payment or to do any act as herein provided, then Beneficiary or Trustee, but without obligation so to do and without notice to or demand upon Participant and without releasing Participant from any obligation hereof, may:
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make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said property for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto; and, in exercising any such powers, pay necessary expenses, employ counsel and pay his reasonable fees.
5) To pay immediately upon demand all sums so expended by Beneficiary or Trustee, with interest from date of expenditure at the amount allowed by law in effect at the date hereof, and to pay for any statement provided for by law in effect at the date hereof regarding the obligation secured hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement is demanded.

B. It is mutually agreed:
1) That any award in connection with any condemnation for public use of or injury to said property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply or release such moneys received by him in the same manner and with the same effect as above provided for disposition of proceeds of fire or other insurance. 2) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive his right either to require prompt payment when due of all other sums so secured or to declare default for failure so to pay. 3) That at any time or from time to time, without liability therefor and without notice, upon written request of Beneficiary and presentation of this Deed and said note for endorsement, and without affecting the personal liability of any person for payment of the indebtedness secured hereby, Trustee may: reconvey any part of said property; consent to the making of any map or plat thereof; join in granting any easement thereon, or join in any extension agreement or any agreement subordinating the lien or charge hereof. 4) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed and said note to Trustee for cancellation and retention or other disposition as Trustee in its sole discretion may choose and upon payment of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The Grantee in such reconveyance may be described as “the person or persons legally entitled thereto.”
5) That as additional security, Participant hereby gives to and confers upon Beneficiary the right, power and authority, during the continuance of this Trust, to collect the rents, issues and profits of said property, reserving unto Participant the right, prior to any default by Participant in payment of any indebtedness secured hereby or in the performance of any agreement hereunder, to collect and retain such rents, issues and profits as they become due and payable. Upon any such default, Beneficiary may at any time without notice, either in person, by agent, or by a receiver to be appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of said property or any part thereof, in his own name sue for or otherwise collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorney’s fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine.

The entering upon and taking possession of said property, the collecting of such rents, issues and profits and the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. 6) That upon default by Participant in payment of any indebtedness secured hereby or in the performance of any agreement hereunder, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default and demand for sale and of written notice of default and of election to cause to be sold said property, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this Deed, the Reimbursement Agreement and all documents evidencing expenditures secured hereby.

After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Participant, shall sell said property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of said property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to such purchaser its deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Participant, Trustee, or Beneficiary as hereinafter defined, may purchase at such sale.

After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with sale, Trustee shall apply the proceeds of sale to payment of: all sums expended under the terms hereof, not then repaid, with accrued interest at the amount allowed by law in effect at the date hereof; all other sums then secured hereby; and the remainder, if any, to the person or persons legally entitled thereto.
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7) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where said property is situated shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties. Said instrument must contain the name of the original Participant, Trustee and Beneficiary hereunder, the book and page where this Deed is recorded and the name and address of the new Trustee. 8) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The term Beneficiary shall mean the owner and holder, including pledgees, of the note secured hereby, whether or not named as Beneficiary herein. In this Deed, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. 9) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which Participant, Beneficiary or Trustee shall be a party unless brought by Trustee.

The undersigned Participant requests that a copy of any notice of default and of any notice of sale hereunder be mailed to him at his address hereinbefore set forth.

Signature of Participant Signature of Participant
________________________________________________________ __________________________________________________________ A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
County of ______________________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared , who proved to me
on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature (Seal)
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DO NOT RECORD REQUEST FOR FULL RECONVEYANCE
TO CHICAGO TITLE INSURANCE COMPANY, TRUSTEE:

The undersigned is the legal owner and holder of the note or notes and of all indebtedness secured by the foregoing Deed of Trust. Said note or notes, together with all other indebtedness secured by said Deed of Trust, have been fully paid and satisfied; and you are hereby requested and directed, on payment to you of any sums owing to you under the terms of said Deed of Trust, to cancel said note or notes above mentioned, an all other evidences of indebtedness secured by said Deed of Trust delivered to you herewith, together with the said Deed of Trust, and to reconvey, without warranty, to the parties designated by the terms of said Deed of Trust, all the estate now held by you under the same.

Dated _______________________________________
_______________________________________________
_______________________________________________
Please mail Deed of Trust,
Note and Reconveyance to __________________________________________________________________________ Do Not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee for cancellation before reconveyance will be made. DEED OF TRUST WITH POWER OF SALE Chicago
Title Insurance
Company

TRUSTEE
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EXHIBIT “A”

LEGAL DESCRIPTION
[To be inserted]
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RIDER TO DEED OF TRUST
This Deed of Trust is subject to the terms and conditions of that certain Equity Sharing Agreement dated ___________________, and recorded concurrently herewith in the Official Records of the County of Orange and incorporated herein by reference, pursuant to which Beneficiary is deemed to have loaned Trustor the sum of ____________________________ Dollars ($___________________) (the “City Loan”). All terms in this Rider to Deed of Trust, if not separately defined herein, shall have the meanings as defined in the Equity Sharing Agreement.

1. Events of Acceleration. The City Loan and Shared Appreciation shall become due and immediately payable irrespective of any provisions herein to the contrary upon the occurrence of any one of the following events of acceleration (“Event of Acceleration”): (i) Transfer of the Property (as defined in the Equity Sharing Agreement), except an Exempt Transfer, or (ii) such time if or when Trustor is no longer in compliance with the occupancy requirements set forth in Section 10 of the Equity Sharing Agreement or is in default of any other obligation under the Equity Sharing Agreement, the Note, or the Deed of Trust.

2. Covenants Do Not Impair Lien. The Beneficiary agrees to subordinate the provisions of the Equity Sharing Agreement and the deed of trust to any first trust deed for the purchase of the Property held by a reputable institutional lender (“First Lien”) on the Property by recording a subordination agreement, in a form approved by Beneficiary’s legal counsel (“Subordination Agreement”).

Trustor agrees it shall instruct the Escrow Agent for the acquisition of the Property by the Trustor that the order of recording in the escrow for the purchase of the Property by the Trustor shall occur as follows: 1) the Equity Sharing Agreement; 2) the Deed of Trust; 3) the First Lien; and 4) the Subordination Agreement.

Trustor shall cause a Request for Notice to be recorded on the Property subsequent to the recordation of the First Lien deed of trust or mortgage requesting a statutory notice of default as set forth in the California Civil Code Section 29246. Such notice shall be sent to: City of Cypress, 5275 Orange Avenue, Cypress, CA 90630, Attention: City Manager.

3. Protection of Beneficiary’s Rights in the Property. If Trustor fails to perform the covenants and agreements contained in this Deed of Trust, or there is a legal proceeding that may significantly affect Beneficiary’s rights in the Property (such as a proceeding in bankruptcy, probate, for condemnation or forfeiture or to enforce laws or regulations), then Beneficiary may do and pay for whatever is necessary to protect the value of the Property and Beneficiary’s rights in the Property. Beneficiary’s actions may include paying any sums secured by a lien which has priority over this Deed of Trust, appearing in court, paying reasonable attorneys’ fees and entering on the Property to make repairs. Although Beneficiary may take action under this Section 3, Beneficiary does not have to do so.

Any amount disbursed by Beneficiary under this Section 3 shall become additional debt of Trustor secured by this Deed of Trust. Unless Trustor and Beneficiary agree to other terms of payment, these amounts shall bear interest from the date of disbursement at nine percent (9%) per 2671/017943-0030
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annum or the maximum legal rate, whichever is less, and shall be payable, with interest, upon notice from Beneficiary to Trustor requesting payment.
[end - signature page follows]
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IN WITNESS WHEREOF, Trustor has executed this Rider to Deed of Trust as of the date set forth below.

By:

Printed Name: Dated:

By:

Printed Name: Dated:

The foregoing Deed of Trust and Rider to Deed of Trust is approved, and consented to, by Beneficiary.

By: CITY OF CYPRESS
City Manager
Dated:
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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature (Seal)
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EXHIBIT “D”

BUYER DISCLOSURE STATEMENT
[see following document]
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BUYER DISCLOSURE STATEMENT
Name of Participant(s):

Property Address:

I/we ______________________________________ (“Participant”), are about to purchase the above-described property (the “Property”). I/we understand that the developer of the Property, CYPRESSMOODYM 2022 LLC, a California Limited Liability Company (the “Developer”), agreed to sell the Property to an affordable buyer at an affordable sales price. I understand that the sale to me/us of the Property at such affordable sales price is conditioned on all of the following factors:
• I/we understand that the fair market value of the Property at the time of my/our purchase is __________________ (the “Property FMV”), and the difference between my/our purchase price for the Property, which is _____________ (“Property Purchase Price”), and the Property FMV is __________________ (the “City Loan”). I/we understand that the City Loan is treated for all purposes as a loan from the City.
• I/we have signed or will sign the following documents in connection with my/our purchase of the Property:
 Equity Sharing Agreement (the “Agreement”);
 Promissory Note Secured by Deed of Trust; and
 Deed of Trust with Assignment of Rents and Rider Attached Hereto. • I/we have read or had explained to me/us the terms and conditions of all of those documents.

I/we understand that all of those documents impose binding legal obligations on me/us. • I/we understand that the City Loan is a shared appreciation loan, and that at the time I/we sell or otherwise transfer the Property, refinance the primary loan for the Property in a manner not permitted by the Agreement, no longer live in the Property as my/our primary residence, or otherwise violate the Agreement or the other documents we have signed in connection with the City Loan, I/we must repay the City Loan plus a portion of the appreciation, based on the ratio of the City Loan to the Property FMV.

For example, if the Property FMV is $300,000, and my/our original purchase price is $200,000, then the City Loan is $100,000, and the City’s share of any appreciation during my/our ownership of the Property is

33.3%.
• I/we must qualify as a Moderate Income Buyer.
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• My/our monthly payments for housing expenses, including the cost for a thirty (30) year fixed-rate mortgage, cannot be less than twenty-eight percent (28%) of the gross income of my/our household, nor more than thirty-five percent (35%) times one hundred ten percent (110%) of the Orange County area median income adjusted for a household size appropriate for the Property, as set forth in California Health and Safety Code section 50052.5. • During my/our ownership of the Property, I/we must continuously occupy the Property and I/we may not rent or lease the Property.
• City shall not be held responsible for any costs associated with my/our purchase of the Property, including, but not limited to, any loan fees or charges, any charges for appraisals or any escrow costs or other costs relating to the transfer of the Property. • The Property Purchase Price is the total purchase price for the Property and no other compensation, either financial or other, will be given to the seller of the Property, any real estate broker, or any other person, as additional consideration for the purchase of the Property. • The City Loan may be considered to be income for purposes of federal or state income taxes and City shall not be held responsible for the payment of any taxes which I/we may incur by virtue of the receipt of such financial assistance.
• I/We are responsible for payment of the cost of a title insurance policy insuring the Deed of Trust to be recorded against the Property to secure City’s right to repayment of the City Loan. • City shall not be charged with the knowledge of the contents of the documents of the lender. • City cannot ensure that information provided by or on my/our behalf will be kept confidential.

By:

Printed Name: Dated:

By:

Printed Name: Dated:
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EXHIBIT “E”

NOTICE OF INTENT TO TRANSFER
[see following page]
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NOTICE OF INTENT TO TRANSFER

NOTICE OF INTENT TO TRANSFER MUST BE DELIVERED

TO THE CITY OF CYPRESS PRIOR TO PROCEEDING WITH
ANY TRANSFER OF THE PROPERTY.

From: ______________________________________________________________ (“Owner”)
To: City of Cypress
5275 Orange Avenue
Cypress, CA 90630
Attn: City Manager
Re: ________________________________ (street address)
Cypress, CA (the “Property”)
Owner desires to [sell, convey, transfer by inheritance or devise, lease, gift, otherwise transfer] (circle appropriate words) the Property.

Date: _________________ ________________________________ Signature of Owner
(___) ___________________________
Day time telephone of Owner
Date: _________________ ________________________________ Signature of Owner
(___) ___________________________
Day time telephone of Owner
December 5, 2022 Via Electronic Mail
Alicia Velasco, Planning Director

CITY OF CYPRESS
5275 Orange Ave.

Cypress, CA 90630

TASK ORDER FOR CITRUS SQUARE SENIOR COMMUNITY AGREEMENT REVIEW AND

COMPLIANCE
Dear Ms. Velasco:

This letter presents RSG’s scope of work and budget to assist the City of Cypress (“City”) with the Citrus Square Senior Community project (“Project”) with reviewing prospective buyers and sales price to ensure compliance with the agreements for all affordable units. RSG understands the Project includes a total of 98 condominium units, with 50 designated for moderate income households, and all units are restricted to seniors. RSG also understands both agreements have been through a few rounds of review with the City and developer attorneys, and the developer will likely begin selling units in early spring 2023.

SCOPE OF WORK
RSG would undertake the following activity:

HOMEBUYER ELIGIBILITY AND AFFORDABLE HOUSING COST
RSG will undertake the following activities to ensure that 50 homebuyers are eligible to purchase income restricted units in the Project and that the sales price is established. Eligibility criteria are minimum standards required to qualify for an affordable unit, such as household income to verify income level, household size (to avoid overcrowding), occupancy standards, and other factors as may be defined in the Affordable Housing Agreement.

1. Calculation of affordable housing sales price as defined in the Affordable Housing Agreement and in accordance with the Health and Safety Code Section 50052.5, in accordance with income limits established by the State of California Housing and Community Development Department.

2. Income and qualification screening of homebuyer loan applicants for income eligibility pursuant to the Affordable Housing Agreement.

It is our understanding that the Developer will prepare and execute individual Equity Sharing Agreements with qualified homebuyers. However, RSG will provide approval letters determining the appropriate sales price and verifying household income eligibility.

FEE PROPOSAL
RSG would charge for this task on a per application basis fee of $1,200 per application.

Alicia Velasco, Planning Director

CITY OF CYPRESS
December 5, 2022

Page 2 ends

We are prepared to start work upon receipt of a written notice to proceed. If you have any questions or need further information, please do not hesitate to contact me directly at (714) 316-2111 or [email protected].

Sincerely,
Tara Matthews, Principal
RSG, Inc.

CITY OF CYPRESS
CITY COUNCIL REPORT
City Council Regular 11.

FROM: Douglas Dancs, Director of Public Works
DATE: 05/08/2023
SUBJECT: Award Contracts for Citywide Traffic Signal Timing, Project 262

RECOMMENDATION

1. Award a contract to Iteris, Inc., for $180,123 for Signal Timing Design Services, and authorize a contingency of $10,800; and

2. Approve a Task Order for Signal Timing Implementation to Hartzog & Crabill, Inc., for $21,060, and authorize a contingency of $2,200.

DISCUSSION
The City-wide Traffic Signal Timing project was part of the Fiscal Year 2020-21 Capital Improvement Program. Due to the pandemic’s effect on traffic patterns and volumes, Public Works postponed this project until traffic returned to pre-pandemic levels. The project consists of traffic data collection, development of local signal timing guidelines, and the preparation and implementation of the updated signal timing plans.

Public Works released a Request for Proposal for signal timing design services and received responses from Iteris Inc. and Advantec Inc. Public Works interviewed both firms and recommend Iteris as the most qualified firm. Iteris comes highly recommended and has completed similar projects for other local agencies, including the cities of Anaheim, Irvine, Chula Vista, and Ventura.

Hartzog & Crabil, Inc., the City's current on-call traffic signal operations consultant, will perform project oversight, implementation, and signal timing review.

BUDGET IMPACT
The estimated design and implementation costs are $214,183 and sufficient project amounts were carried over to FY 2022-23 and budgeted in the Lighting District Fund to pay for these project costs.

LEGAL REVIEW
The City Attorney has approved the agreement as to form.

APPROVED BY: Peter Grant, City Manager
Attachments
Contract Services Agreement
Task Order
01004.0001/301445.11 9/28/2017

AGREEMENT FOR CONTRACT SERVICES
By and Between

CITY OF CYPRESS
and

ITERIS INCORPORATED
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AGREEMENT FOR CONTRACT SERVICES

BY AND BETWEEN THE CITY OF CYPRESS AND
_____________________________________________
THIS AGREEMENT FOR CITY WIDE TRAFFIC SIGNAL TIMING, CIP262 (herein “Agreement”) is made and entered into this ____ day of ________, 20___ by and between the City of Cypress, a California municipal corporation (“City”) and ITERIS, INCORPORATED (“Contractor”). City and Contractor are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”

RECITALS
A. City has sought, by issuance of a Request for Proposals or Invitation for Bids, the performance of the services defined and described particularly in Article 1 of this Agreement.

B. Contractor, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by the City to perform those services.

C. Pursuant to the City of Cypress’s Charter and Municipal Code, City has authority to enter into and execute this Agreement.

D. The Parties desire to formalize the selection of Contractor for performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.

OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:

ARTICLE 1. SERVICES OF CONSULTANT

1.1 Scope of Services.

In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the “Scope of Services” attached hereto as Exhibit “A” and incorporated herein by this reference, which may be referred to herein as the “services” or “work” hereunder.

As a material inducement to the City entering into this Agreement, Contractor represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the work and services contemplated herein. Contractor shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be both of good quality as well as fit for the purpose intended. For purposes of this Agreement, the phrase “highest 01004.0001/301445.11 9/28/2017
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professional standards” shall mean those standards of practice recognized by one or more firstclass firms performing similar work under similar circumstances.

1.2 Contractor’s Proposal.

The Scope of Service shall include the Contractor’s scope of work or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern.

1.3 Compliance with Law.

Contractor shall keep itself informed concerning, and shall render all services hereunder in accordance with, all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental entity having jurisdiction in effect at the time service is rendered.

1.4 Licenses, Permits, Fees and Assessments.

Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor’s performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.

1.5 Familiarity with Work.

By executing this Agreement, Contractor warrants that Contractor (i) has thoroughly investigated and considered the scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Contractor discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor’s risk until written instructions are received from the Contract Officer.

1.6 Care of Work.

The Contractor shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City’s own negligence.
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1.7 Further Responsibilities of Parties.

Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other.

1.8 Additional Services.

City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Contractor, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra work, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor. Any increase in compensation of up to ten percent (10%) of the Contract Sum or $25,000, whichever is less; or, in the time to perform of up to one hundred eighty (180) days, may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by the City Council. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other contractors. No claims for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed.

1.9 Special Requirements.

Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements” attached hereto as Exhibit “B” and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit “B” and any other provisions of this Agreement, the provisions of Exhibit “B” shall govern.

ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.

2.1 Contract Sum.

Subject to any limitations set forth in this Agreement, City agrees to pay Contractor the amounts specified in the “Schedule of Compensation” attached hereto as Exhibit “C” and incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed One Hundred Eighty Thousand and One Hundred Twenty Three Dollars ($180,123.00) (the “Contract Sum”), unless additional compensation is approved pursuant to Section 1.8.
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2.2 Method of Compensation.

The method of compensation may include: (i) a lump sum payment upon completion; (ii) payment in accordance with specified tasks or the percentage of completion of the services, less contract retention; (iii) payment for time and materials based upon the Contractor’s rates as specified in the Schedule of Compensation, provided that (a) time estimates are provided for the performance of sub tasks, (b) contract retention is maintained, and (c) the Contract Sum is not exceeded; or (iv) such other methods as may be specified in the Schedule of Compensation.

2.3 Reimbursable Expenses.

Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Contractor at all project meetings reasonably deemed necessary by the City.

Coordination of the performance of the work with City is a critical component of the services. If Contractor is required to attend additional meetings to facilitate such coordination, Contractor shall not be entitled to any additional compensation for attending said meetings.

2.4 Invoices.

Each month Contractor shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City’s Director of Finance.

By submitting an invoice for payment under this Agreement, Contractor is certifying compliance with all provisions of the Agreement. The invoice shall detail charges for all necessary and actual expenses by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and sub-contractor contracts. Sub-contractor charges shall also be detailed by such categories. Contractor shall not invoice City for any duplicate services performed by more than one person.

City shall independently review each invoice submitted by the Contractor to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Contractor which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause Contractor to be paid within forty-five (45) days of receipt of Contractor’s correct and undisputed invoice; however, Contractor acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payment will occur within this time period. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Contractor for correction and resubmission. Review and payment by City for any invoice provided by the Contractor shall not constitute a waiver of any rights or remedies provided herein or any applicable law.

2.5 Waiver.

Payment to Contractor for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Contractor.
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ARTICLE 3. PERFORMANCE SCHEDULE

3.1 Time of Essence.

Time is of the essence in the performance of this Agreement.

3.2 Schedule of Performance.

Contractor shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the “Schedule of Performance” attached hereto as Exhibit “D” and incorporated herein by this reference. When requested by the Contractor, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days cumulatively.

3.3 Force Majeure.

The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Contractor’s sole remedy being extension of the Agreement pursuant to this Section.

3.4 Term.

Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1) years from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit “D”).

ARTICLE 4. COORDINATION OF WORK

4.1 Representatives and Personnel of Contractor.

The following principals of Contractor (“Principals”) are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
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(Name) (Title)
(Name) (Title)
(Name) (Title)
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement.

Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. All personnel of Contractor, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. Additionally, Contractor shall utilize only competent personnel to perform services pursuant to this Agreement. Contractor shall make every reasonable effort to maintain the stability and continuity of Contractor’s staff and subcontractors, if any, assigned to perform the services required under this Agreement. Contractor shall notify City of any changes in Contractor’s staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance.

4.2 Status of Contractor.

Contractor shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Contractor shall not at any time or in any manner represent that Contractor or any of Contractor’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Contractor, nor any of Contractor’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Contractor expressly waives any claim Contractor may have to any such rights.

4.3 Contract Officer.

The Contract Officer shall be Director of Public Works or such person as may be designated by the City Manager. It shall be the Contractor’s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.

4.4 Independent Contractor.

Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its agents or employees, perform the services required herein, except 01004.0001/301445.11 9/28/2017
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as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Contractor’s employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor.

4.5 Prohibition Against Subcontracting or Assignment.

The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City.

ARTICLE 5. INSURANCE AND INDEMNIFICATION

5.1 Insurance Coverages.

The Contractor shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance which shall cover all elected and appointed officers, employees and agents of City:
(a) General Liability Insurance (Occurrence Form CG0001 or equivalent). A policy of comprehensive general liability insurance written on a per occurrence basis for bodily injury, personal injury and property damage. The policy of insurance shall be in an amount not less than $1,000,000.00 per occurrence or if a general aggregate limit is used, then the general aggregate limit shall be twice the occurrence limit.
(b) Worker’s Compensation Insurance. A policy of worker’s compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for the Contractor against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Contractor in the course of carrying out the work or services contemplated in this Agreement.
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(c) Automotive Insurance (Form CA 0001 (Ed 1/87) including “any auto” and endorsement CA 0025 or equivalent). A policy of comprehensive automobile liability insurance written on a per occurrence for bodily injury and property damage in an amount not less than $1,000,000. Said policy shall include coverage for owned, non-owned, leased, hired cars and any automobile.
(d) Professional Liability. Professional liability insurance appropriate to the Contractor’s profession. This coverage may be written on a “claims made” basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of or related to services performed under this Agreement. The insurance must be maintained for at least 5 consecutive years following the completion of Contractor’s services or the termination of this Agreement.

During this additional 5-year period, Contractor shall annually and upon request of the City submit written evidence of this continuous coverage.
(e) Subcontractors. Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall include all of the requirements stated herein. (f) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit “B”.

5.2 General Insurance Requirements.

All of the above policies of insurance shall be primary insurance and shall name the City, its elected and appointed officers, employees and agents as additional insureds and any insurance maintained by City or its officers, employees or agents may apply in excess of, and not contribute with Contractor’s insurance. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. Moreover, the insurance policy must specify that where the primary insured does not satisfy the self-insured retention, any additional insured may satisfy the self-insured retention.

All of said policies of insurance shall provide that said insurance may not be amended or cancelled by the insurer or any party hereto without providing thirty (30) days prior written notice by certified mail return receipt requested to the City. In the event any of said policies of insurance are cancelled, the Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with Section 5.1 to the Contract Officer.

No work or services under this Agreement shall commence until the Contractor has provided the City with Certificates of Insurance, additional insured endorsement forms or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. City reserves the right to inspect complete, certified copies of and endorsements to all required insurance policies at any time. Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City.

All certificates shall name the City as additional insured (providing the appropriate endorsement) and shall conform to the following “cancellation” notice:
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CANCELLATION:

SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE

CANCELLED BEFORE THE EXPIRATION DATED THEREOF,
THE ISSUING COMPANY SHALL MAIL THIRTY (30)-DAY

ADVANCE WRITTEN NOTICE TO CERTIFICATE HOLDER
NAMED HEREIN.
[to be initialed] ______________
Contractor Initials
City, its respective elected and appointed officers, directors, officials, employees, agents and volunteers are to be covered as additional insureds as respects: liability arising out of activities Contractor performs; products and completed operations of Contractor; premises owned, occupied or used by Contractor; or any automobiles owned, leased, hired or borrowed by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, employees or volunteers. Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.

Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims. The Contractor agrees that the requirement to provide insurance shall not be construed as limiting in any way the extent to which the Contractor may be held responsible for the payment of damages to any persons or property resulting from the Contractor’s activities or the activities of any person or persons for which the Contractor is otherwise responsible nor shall it limit the Contractor’s indemnification liabilities as provided in Section 5.3.

In the event the Contractor subcontracts any portion of the work in compliance with Section

4.5 of this Agreement, the contract between the Contractor and such subcontractor shall require the subcontractor to maintain the same policies of insurance that the Contractor is required to maintain pursuant to Section 5.1, and such certificates and endorsements shall be provided to City.

5.3 Indemnification.

To the full extent permitted by law, Contractor agrees to indemnify, defend and hold harmless the City, its officers, employees and agents (“Indemnified Parties”) against, and will hold and save them and each of them harmless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein “claims or liabilities”) that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Contractor, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Contractor is legally liable (“indemnitors”), or arising from Contractor’s or indemnitors’ 01004.0001/301445.11 9/28/2017
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reckless or willful misconduct, or arising from Contractor’s or indemnitors’ negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith:
(a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorney’s fees incurred in connection therewith;
(b) Contractor will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Contractor hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom;
(c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorney’s fees.

Contractor shall incorporate similar indemnity agreements with its subcontractors and if it fails to do so Contractor shall be fully responsible to indemnify City hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Contractor in the performance of professional services hereunder. The provisions of this Section do not apply to claims or liabilities occurring as a result of City’s sole negligence or willful acts or omissions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City’s negligence, except that design professionals’ indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional. The indemnity obligation shall be binding on successors and assigns of Contractor and shall survive termination of this Agreement.

5.4 Sufficiency of Insurer.

Insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City (“Risk Manager”) due to unique circumstances. If this Agreement continues for more than 3 years duration, or in the event the risk manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Contractor agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the Risk Manager.
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ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION

6.1 Records.

Contractor shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (the “books and records”), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Contractor’s business, custody of the books and records may be given to City, and access shall be provided by Contractor’s successor in interest. Notwithstanding the above, the Contractor shall fully cooperate with the City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.

6.2 Reports.

Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed.

6.3 Ownership of Documents.

All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the “documents and materials”), including any electronic documents and materials, prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City in a format of the City’s choice upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use, reuse or assignment of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City’s sole risk and without liability to Contractor, and Contractor’s guarantee and warranties shall not extend to such use, reuse or assignment. Contractor may retain copies of such documents for its own use. Contractor 01004.0001/301445.11 9/28/2017
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shall have the right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. Moreover, Contractor with respect to any documents and materials that may qualify as “works made for hire” as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed “works made for hire” for the City.

6.4 Confidentiality and Release of Information.
(a) All information gained or work product produced by Contractor in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Contractor. Contractor shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer.
(b) Contractor, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Contractor gives City notice of such court order or subpoena. (c) If Contractor, or any officer, employee, agent or subcontractor of Contractor, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Contractor for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Contractor’s conduct. (d) Contractor shall promptly notify City should Contractor, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Contractor or be present at any deposition, hearing or similar proceeding. Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.

ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION

7.1 California Law.

This Agreement shall be interpreted, construed and governed both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District 01004.0001/301445.11 9/28/2017
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Court, venue shall lie exclusively in the Central District of California, in the County of Orange, State of California.

7.2 Disputes; Default.

In the event that Contractor is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Contractor for any work performed after the date of default. Instead, the City may give notice to Contractor of the default and the reasons for the default. The notice shall include the timeframe in which Contractor may cure the default.

This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Contractor is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Contractor does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of the Contractor’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.

7.3 Retention of Funds.

Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Contractor’s acts or omissions in performing or failing to perform Contractor’s obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Contractor to insure, indemnify, and protect City as elsewhere provided herein.

7.4 Waiver.

Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement.

Acceptance by City of any work or services by Contractor shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver.

Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.

7.5 Rights and Remedies are Cumulative.

Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party 01004.0001/301445.11 9/28/2017
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of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.

7.6 Legal Action.

In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Contractor shall file a statutory claim pursuant to Government Code Sections 905 et. seq. and 910 et. seq., in order to pursue a legal action under this Agreement.

7.7 Termination Prior to Expiration of Term.

This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Contract at any time, with or without cause, upon written notice to Contractor. In addition, the Contractor may terminate this Contract for cause, upon sixty (60) days’ advance written notice to City. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Contractor has initiated termination, the Contractor shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Contractor has initiated termination, the Contractor shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2.

7.8 Termination for Default of Contractor.

If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of set-off or partial payment of the amounts owed the City as previously stated.

7.9 Attorney’s Fees.

If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney’s fees. Attorney’s fees shall include attorney’s fees on any appeal, and in addition a party entitled to attorney’s fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs 01004.0001/301445.11 9/28/2017
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the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.

ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION

8.1 Non-liability of City Officers and Employees.

No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.

8.2 Conflict of Interest.

Contractor covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Contractor’s performance of services under this Agreement. Contractor further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the Contract Officer. Contractor agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.

8.3 Covenant Against Discrimination.

Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class in the performance of this Agreement. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class.

8.4 Unauthorized Aliens.

Contractor hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Contractor so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Contractor hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorney’s fees, incurred by City. 01004.0001/301445.11 9/28/2017
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ARTICLE 9. MISCELLANEOUS PROVISIONS

9.1 Notices.

Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer (with her/his name and City title), City of Cypress, 5275 Orange Avenue, Cypress, California 90630 and in the case of the Contractor, to the person(s) at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.

9.2 Interpretation.

The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.

9.3 Counterparts.

This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.

9.4 Integration; Amendment.

This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the parties. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Contractor and by the City Council. The parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.

9.5 Severability.

In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 01004.0001/301445.11 9/28/2017
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9.6 Warranty & Representation of Non-Collusion.

No official, officer, or employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of City participate in any decision relating to this Agreement which may affect his/her financial interest or the financial interest of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of “financial interest” shall be consistent with State law and shall not include interests found to be “remote” or “noninterests” pursuant to Government Code Sections 1091 or 1091.5.

Nor shall any such officer or employee participate in any decision relating to the Agreement which affects her/his financial interest or the financial interest of any corporation, partnership or association in which (s)he is, directly or indirectly, interested, in violation of any State statute or regulation, including but not limited to the Political Reform Act (Government Code Sections 81000, et seq.)
Contractor warrants and represents that it has not paid or given, and will not pay or give, to any third party including, but not limited to, any City official, officer, or employee, any money, consideration, or other thing of value as a result or consequence of obtaining or being awarded any agreement. Contractor further warrants and represents that (s)he/it has not engaged in any act(s), omission(s), or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any City official, officer, or employee, as a result of consequence of obtaining or being awarded any agreement. Contractor is aware of and understands that any such act(s), omission(s) or other conduct resulting in such payment of money, consideration, or other thing of value will render this Agreement void and of no force or effect.

Contractor’s Authorized Initials _______

9.7 Corporate Authority.

The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties. [SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written.

CITY:

City of Cypress, a municipal corporation

_____________________________________
Anne Hertz-Mallari, Mayor
ATTEST:
____________________________________
Alisha Farnell, City Clerk

APPROVED AS TO FORM:

ALESHIRE & WYNDER, LLP
____________________________________
Fred Galante, City Attorney
CONSULTANT:

_____________________________________
_____________________________________
By:
___________________________________
Name:

Title:

By:
___________________________________
Name:

Title:

Address: ______________________________
_____________________________
_____________________________
Two corporate officer signatures required when Contractor is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. 01004.0001/301445.11 9/28/2017 A-1
EXHIBIT “A”

SCOPE OF SERVICES
I. GENERAL REQUIREMENTS for SCOPE OF SERVICES

1. General
The work to be done, generally includes: traffic volume data collection, development of local signal timing guidelines, network modeling, operational assessments, optimized signal timing plans, field observations and fine tuning, and a final report. The City will collaborate with the selected firm to finalize the Scope of Work for this contract upon commencement of the project.

All work performed shall be reviewed, approved, stamped, and signed by a qualified and licensed professional traffic engineer who shall maintain the validity of their California Professional Traffic Engineer Registration for the duration of the project.

Contractor’s performance under this Agreement shall be at the highest level promulgated in the industry.

2. Tasks
Task 1. Project Management Communication, And Meetings
Iteris strongly believes that excellent project management and continuous project communication are essential in the successful completion of any project. Thus, at the initiation of the project, Mr.

Jason Xu will lead a project kick-off meeting with the City, either in-person or virtually. As part of this meeting, communication channels and protocols will be established, the scope of work, schedule, and budget will be discussed, necessary information will be gathered, and a thorough understanding of the goals of the project will be obtained.

This task will be ongoing throughout the duration of the project. Iteris will schedule monthly (or as needed) coordination meetings with City staff, either in person or virtually, to discuss project status and updates. Iteris will ensure to provide meeting minutes after every meeting, to capture action items and any decisions made.

Mr. Bernard Li, Principal-in-Charge, will also be responsible for the overall Quality Control/Quality Assurance (QC/QA) aspect of this project. Within this role, he will develop an internal QC/QA team to review the products prior to delivery to the City for review and approval.

Deliverables
• Project Kick-off Meeting agendas, meeting materials and minutes • Monthly meeting agendas, meeting materials, and minutes • Monthly invoices
• Detailed monthly (or as needed) project schedule
01004.0001/301445.11 9/28/2017 A-2
Task 2. Data Collection
The data collection task includes the gathering of all information needed to deliver optimized signal timing and synchronization for the project area. Iteris will coordinate with the City to obtain existing timing sheets, signal plans, collision data, and speed surveys.

Iteris will also conduct detailed field reviews at each project intersection. Our field reviews will note traffic operations and any issues, inventory existing cabinet equipment, and verify intersection lane geometry. To expedite the field review process and ensure quality work, Iteris will use FastField, an application that enables us to input data directly from the field and produce highquality customized reports instantly through the cloud-based system without manual data processing. This unique and efficient approach to field work can provide time and cost savings for the City.

As an Iteris standard, our field review also documents the existing detection settings and identifies any modifications that will be required for potential deployments of Automated Traffic Signal Performance Measures (ATSPM) or signal responsive/adaptive operations.

Prior to conducting traffic counts, Iteris will use ClearGuide to identify and confirm if traffic patterns have returned to the “new” normal condition. Once confirmed and with agencies’ concurrence, Iteris’ subconsultant, AimTD will conduct 24-hour ADT counts for one midweekday and one weekend day at critical locations on the Priority Corridor Network and Local Signal Synchronization Network. These ADT counts will help identify the peaking characteristics of each segment and identify proposed peak periods for the collection of turning movement counts as well as signal synchronization periods. Iteris will update citywide ADT map using the data collected under this task.

AimTD will also conduct weekday and weekend turning movement counts at all study intersections using video cameras mounted on signal poles. These recordings can be conducted during the same week(s) as the ADT counts with the appropriate set-up to capture queues.

Therefore, once the ADT data is analyzed, the turning movement count videos can be processed immediately to ensure turning movement counts will be representative of the ADT data and provide another layer of quality control. Bike and pedestrian counts will be included in separate columns of traffic count sheets.

Iteris understands the impact of the COVID-19 pandemic on traffic volumes, that are not representative of typical conditions, and will apply adjustment factors to the counts if needed.

Deliverables
• Field review notes and pictures (as requested)
• ADT and traffic count data
• Citywide ADT volume map
01004.0001/301445.11 9/28/2017 A-3
Task 3. Local Signal Timing Parameters
Corridor optimization requires that the basic timing parameters be calculated first, with consideration of all roadway users and verified with the City. The methodology for basic timing calculations will be consistent with the latest version of the California Manual of Uniform Traffic Control Devices and agency preferences.

The timing parameters to be reviewed include the following, at a minimum, which are critical to safety for vehicles, pedestrians, and bicyclists:

We will also evaluate and include the controller parameters and capabilities (start-up sequencing, detection settings, density features, split extension, dynamic maximums, time of day functions, traffic responsive/adaptive, etc.) to provide additional recommendations for optimum performance during coordinated and free operation.

Deliverables
• Citywide Signal Timing Guidelines
• Technical Memorandum to Document Basic Timing Calculation and Recommendation Task 4. Network Modeling
The intersection features and traffic data collected in Task 2 will be used to prepare and calibrate a traffic model that encompasses citywide roadway network. The traffic models will be developed using Synchro version 10 or 11 per City’s preference and Tru-Traffic 10. The congestion hotspot data, queuing condition, and other field observations will be used to calibrate and verify the Synchro models, which will serve as the baseline condition for the evaluation of optimization options and common cycle alternatives. We will use a GIS shapefile as the background in Synchro to develop the base roadway configuration. The intersection numbering will be consistent with signal ID to assist production of timing sheets or per City’s preference.

Deliverables
• Synchro or Tru-Traffic files for Existing Conditions
• Synchro or Tru‐Traffic files for Optimized Network
Existing Timings in Cypress
Minimum Green 5 sec for left turns, 10 sec for major thru, and 5 sec for minor thru Bicycle Minimum Green 6 + (D + 6) / 14.7 ‐ Yellow – All Red, no less than 6 sec Yellow Change Interval 3 sec for left turns, CA MUTCD Table 4D‐102A or 102B for thru phases All Red Interval .5 sec for left turns, 10 sec for major thru, and 5 sec for minor thru Pedestrian Walk Time 7 sec
Flashing Don’t Walk Interval Crossing distance/4 ‐ Yellow – All Red 01004.0001/301445.11 9/28/2017 A-4
Task 5. Operational Assessment And Coordination Optimization Once traffic models have been developed and calibrated, Iteris will develop a concise technical memorandum for Concept of Operations (ConOps) that assesses all feasible operational patterns for each time period. The ConOps documents the strategy and the objectives for how traffic will be managed in all direction, taking into account special traffic generators and congestion hotspots.

Special considerations will be given to the before and after conditions of COVID-related traffic changes. The primary goal will be to maximize the number of successive greens for motorists along the primary coordinate band or between adjacent coordinated bands.

Based upon City’s review comments on ConOps, Iteris will conduct detailed analysis for common cycle lengths, phasing sequence, and green band/delay optimization. Planned stops, when necessary, will be thoroughly vetted and identified for the City’s review.

Our methodology to optimize a grid network is shown in the figure to the left. Cycle length selection is a critical step in developing signal coordination plans. A longer cycle length may provide better progression along the corridors but could increase side street delay and queuing.

We have developed a unique iterative methodology to determine ideal cycle lengths for each study intersection. Extensive project studies show this capacity-based methodology provides more accurate results than purely delay-based methodologies adopted by the Highway Capacity Manual and Synchro software. We will use the calculated cycle lengths to develop optimized signal timing plans for all project intersections.

TruTraffic will be used to augment the coordination green band on each project corridor. The SimTraffic simulation will then be carefully observed to identify areas needing special operational analysis. Locations noted to have existing cross coordination will be analyzed for split and sequence optimization unless otherwise approved by the City to evaluate whether a different cycle length is recommended.

Our vast experience in Orange County and working relationships with Cypress allows us to provide value- added services and additional solutions. These include the development of school/holiday season timing plans and reviews by in-house traffic responsive/adaptive experts to ensure the optimized plans serve the project goals and objectives for this project.

Deliverables
• Technical Memorandum for Concept of Operations
• Technical Memorandum for Operational Assessment and Recommended Optimization • Optimized Coordination Timing Plans
01004.0001/301445.11 9/28/2017 A-5
Task 6. Implementation
We consider implementation to be the most critical phase of a signal synchronization project. Iteris has worked with various agencies to develop numerous implementation ready timings in agency preferred format (Synchro printouts, marked-up timing sheets in PDF, new Excel files, etc.). Iteris has completed timing implementation through central systems, including Aries, and at controllers for offline signals. Our implementation team is staffed with qualified specialists fully trained in signal retiming projects.

Deliverables
• Implementation ready timing sheets (or City preferred format) Task 7. Field Observations And Fine Tuning
Immediately following complete implementation, we will conduct fine-tuning in the field to monitor signal cycling at each intersection, progression along the project corridors, and any major queues. The fine-tuning usually takes at least four weeks, which gives the field team plenty of time to observe the new timing plans under varying traffic conditions and make appropriate changes.

Any adjustments to controller settings will be documented in an Iteris implementation log for City reference.

Fine-tuning will be completed using Synchro and Tru-Traffic software to identify reasoning for any modifications conducted. Upon completion of this task, the Synchro models will be updated to match the field conditions.

Deliverables
• Fine-tuning revisions log
• Final timing sheets
• Final Synchro models
Task 8. Final Report
Iteris will submit a final report documenting all work completed pertaining to the signal synchronization process and all findings as part of this project. The report will include information from previous deliverables, and a narrative “before” and “after” comparison based on the model analysis and field observations.

As a value-added service, we will use Iteris ClearGuide, the data analytics system, to conduct a travel time comparison study “before” and “after” the implementation of new timing plans along two key corridors per the discussion with City staff. Based on the preliminary field review, we would recommend Valley View Street and Lincoln Avenue which will form a network with Katella Avenue along which Iteris will perform similar analysis and monitoring under OCTA Katella RTSSP project for 24 months starting in 2022.
01004.0001/301445.11 9/28/2017 A-6
The final report will also identify potential improvement of signal phasing or operation and recommend low-cost countermeasures for City’s considerations.

Deliverables
• Draft and Final Project Reports with Appendices
• Final Citywide Synchro Network
• Electronic versions of traffic data
01004.0001/301445.11 9/28/2017 B-1
EXHIBIT “B”

SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
I. DELETE subsection 1.8 and REPLACE with the following:
“1.8 Additional Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in a particular Agreement, as defined in Exhibit “A,” or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Contractor, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra work, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor. Any increase in compensation up to the amount authorized by the City Council (“Contract Contingency”); or, in the time to perform of up to one hundred eighty (180) days, may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by the City Council. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other contractors.

No claims for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed.

II. Section 5.1(a) shall be amended to read as follows:
“A policy of commercial general liability insurance written on a per occurrence basis. The policy of insurance shall be in an amount not less than $2,000,000, single limit, per occurrence.”
III. Section 5.1(c) shall be amended to read as follows:
“A policy of commercial automobile liability insurance written on a per occurrence for bodily injury and property damage in an amount not less than $1,000,000. Said policy shall include coverage for owned, non-owned, leased, hired cars and any automobile.”
IV. Section 5.1(d) shall be amended to read as follows:
“Professional Liability. Professional liability insurance in the amount not less than two million dollars ($2,000,000). This coverage may be written on a “claims made” basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement 01004.0001/301445.11 9/28/2017 B-2
must be endorsed to be applicable to claims based upon, arising out of or related to services performed under this Agreement.
01004.0001/301445.11 9/28/2017 C-1
EXHIBIT “C”

SCHEDULE OF COMPENSATION
01004.0001/301445.11 9/28/2017 D-1
EXHIBIT “D”

SCHEDULE OF PERFORMANCE
OPTIONAL As-Needed Timing Monitoring & Fine-Tuning Support for 24 Months Until 2026 TASK Final Report City ReviewDraft Report
TASK 8 Final Report
Final Timing Sheets Final Synchro Models Field Fine-tuning TASK 7 Field Observations and Fine-tuning
Implmentation of Optimized Timing (Completed by others)City ReviewTiming Sheet/Database Preparation TASK 6 Implementation
City ReviewOperational Assessment and Optmization Memo Signal Sycnhronization Optimization TASK 5 Operational Assessment
City ReviewDevelopment of Optimized Models and Timing Plans City ReviewSimulation/Existing Condition Modeling and Calibration TASK 4 Network Modeling
City ReviewBasic Timing Review and Update Tech Memo City-Wide Timing Guildeline TASK 3 Local Signal Timing Parameters
Traffic Data QC & ADT Map Geometry and Signal Timing Field Review at 52 Intesections Exiting Timing, As-Built, and Other Data Collection TASK 2 Data Collection
Project Coordination and Meetings Kick-off Meeting
TASK 1 Project Management, Communication, and Meetings
Aug Sep Oct Nov Dec Jan Feb Mar
2023 2024
Tasks

CITY OF CYPRESS
CITY COUNCIL REPORT
City Council Regular 12.

FROM: Douglas Dancs, Director of Public Works
DATE: 05/08/2023
SUBJECT: Southern California Edison Light Emitting Diode (LED) Fixture Replacement Rate Agreement

RECOMMENDATION

1. Authorize the City Manager to execute the necessary application and agreement for conversion of Southern California Edison owned streetlights to Light Emitting Diode through the California Public Utilities Commission approved LS-1 Option E program; and

2. Establish color temperature specifications at 3000K for residential areas and 4000K for commercial and industrial areas.

DISCUSSION
Southern California Edison (SCE) owns and maintains over 3,000 streetlights throughout the City. The existing streetlights use high pressure sodium vapor with varying wattages depending on the lighting situation. The City pays a monthly fee for the streetlights, which covers the cost of power, routine maintenance and replacement, and knockdowns.

In 2016, the California Public Utilities Commission and SCE created a program to enable the conversion of existing streetlights to light-emitting diode (LED) fixtures to reduce energy usage, electricity costs, and greenhouse gases associated with the generation of electricity.

This program allows cities to convert to LED street lighting with no “upfront” capital investment. A recovery mechanism is embedded in the tariff that collects back the initial cost of installation and materials using a portion of the energy savings over a 20-year repayment period. Numerous local agencies have participated in this program, including the cities of Seal Beach, Costa Mesa, Yorba Linda, Newport Beach, and many others.

The current annual cost to the City for SCE streetlights is approximately $670,000. SCE estimates that with the conversion to LED, the City’s annual charges will be $526,000, which yields an annual savings of $144,000 during the 20-year repayment period.

The proposed fixtures have the option of providing a “warm white” 3000 Kelvin degrees (3000K) or a “cool white” 4000 Kelvin degrees (4000K). The 3000K color temperature has more yellow and amber tones and is consistent with existing lighting, while the 4000K temperature will have a whiter appearance. The City Council received information from Public Works and SCE at the April 24 Workshop and concurred with the recommendation to use 3000K as the standard for residential areas and 4000K for commercial and industrial areas.

In addition to the SCE streetlights, the City owns and maintains just over 300 streetlights throughout the City. To maintain consistent street lighting across the City, the upcoming Seven-Year Capital Improvement Program will include a project to convert City-owned streetlights to LED. The estimated cost to convert the City-owned streetlights is $300,000.

BUDGET IMPACT
There are no upfront out-of-pocket costs to the City to convert SCE-owned streetlights to LED fixtures under the LS-1 Option E tariff. The cost for SCE to convert to LED fixtures is approximately $1.2 million and is expected to result in annual energy cost savings to the City of $210,000. The $1.2 million capital investment will be amortized and repaid by Cypress over 20 years (approximately $60,000 per year), resulting in net annual savings of $148,000 to the City for the next 20 years. At the end of the 20-year amortization period, the City will realize the full annual budget savings of $210,000. The actual savings may vary due to factors including rate changes, wattage conversion changes, and additional installations.

LEGAL REVIEW
The City Attorney has reviewed and approved the agreement as to form.

APPROVED BY: Peter Grant, City Manager
Attachments
Fixture Replacement Rate Agreement
Southern California Edison Original Cal. PUC Sheet No. 57074-E Rosemead, California (U 338-E) Cancelling Cal. PUC Sheet No.

Sheet 1
SCHEDULE LS-1 OPTION E,

ENERGY EFFICIENCY-LIGHT EMITTING DIODE (LED) FIXTURE REPLACEMENT

RATE AGREEMENT
Form 14-965
(To be inserted by utility) Issued by (To be inserted by Cal. PUC) Advice 3241-E R.O. Nichols Date Filed Jun 30, 2015
Decision 14-10-046 Senior Vice President Effective Jun 1, 2016 1P8 Resolution

SOUTHERN CALIFORNIA EDISON COMPANY
SCHEDULE LS-1 OPTION E, ENERGY EFFICIENCY-LIGHT EMITTING DIODE (LED)

FIXTURE REPLACEMENT RATE AGREEMENT
Form 14-965
06/2016
1 This Schedule LS-1 Option E, Energy Efficiency-Light Emitting Diode (LED) Fixture Replacement Rate Agreement (Agreement), effective this day of _,
_(Effective Date), is entered into between Southern California Edison Company (SCE) and ________, an SCE customer taking service on Schedule LS-1 (Applicant), referred to collectively as "Parties," and individually as "Party." This Agreement provides for SCE, at Applicant’s request, to replace the existing street lighting fixtures serving Applicant’s premises with Light Emitting Diode (LED) street lighting fixtures to achieve energy efficiency benefits for Applicant, as set forth in Special Condition 14, Option E, Energy Efficiency-Light Emitting Diode (LED) Fixture Replacement, of Schedule LS-1.

The Parties agree as follows:

1. LED FIXTURES
SCE shall install, own, operate, and maintain LED Fixtures for Applicant as set forth in Exhibit "A" attached hereto and incorporated herein by this reference. The LED Fixtures provided hereunder shall at all times remain the property of SCE.

2. LED FIXTURE REPLACEMENT COSTS

2.1 The replacement costs of the LED Fixtures provided hereunder shall be borne by Applicant.

2.2 Applicant shall pay the charge for the LED Fixtures Replacement rate, which includes an Energy Efficiency Premium Charge (EEPC) and a Base LED Charge, under Option E of Schedule LS-1. Applicant elects Option E in lieu of an upfront, one-time payment of the replacement costs.

2.3 SCE does not guarantee that any energy or bill savings will accrue to Applicant as a result of the LED Fixture replacements.

3. COMMENCEMENT OF SERVICE
The Parties agree that SCE has the right to charge Applicant, and Applicant has an obligation to pay SCE, for the charges set forth in Schedule LS-1, Option E, commencing on the date SCE begins serving the LED Fixtures installed pursuant to this Agreement.

4. TERM AND TERMINATION

4.1 This Agreement shall be effective as of the Effective Date and shall continue for a term of twenty (20) years from the commencement of service as specified in Section 3 above (Term).

4.2 Applicant may terminate this Agreement at any time during the Term upon a thirty (30) - day advance written notice, provided that Applicant, prior to or within the 30-day advance notice period, assigns the Agreement to any New Party In (NPI) that owns, rents or leases the premises served by the street lighting fixtures replaced under this Agreement and will take service under Option E of Schedule LS-1 effective as of the date of termination; otherwise, Applicant shall pay a one-time termination charge equal to the present value of the balance of the EEPC of Option E over the remaining Term. The present value is determined based on SCE’s authorized rate of return on rate base, or discounted rate of

7.90%.

SOUTHERN CALIFORNIA EDISON COMPANY
SCHEDULE LS-1 OPTION E, ENERGY EFFICIENCY-LIGHT EMITTING DIODE (LED)

FIXTURE REPLACEMENT RATE AGREEMENT
Form 14-965
06/2016
2 5. AMENDMENTS; ASSIGNMENTS

5.1 Any changes or amendments to this Agreement must be in writing and must be executed by the Applicant and SCE and, if required, be approved by the California Public Utilities Commission (Commission).

5.2 Applicant shall not assign this Agreement without the prior written consent of SCE; provided, however, that Applicant may assign the Agreement pursuant to the terms and conditions of Section 4.2 above, and the NPI must assume all rights and obligations under this Agreement for the remaining Term. Any assignment and assumption shall be in a form acceptable to SCE.

6. NOTICE
Any notice either Applicant or SCE may wish to provide the other regarding this Agreement must be in writing. Such notice must be either hand-delivered or sent by U.S. certified or registered mail, postage prepaid, to the person designated to receive notice for the other Party below, or to such other address as either may designate by written notice. Notices delivered by hand shall be deemed effective when delivered. Notices delivered by mail shall be deemed effective when received, as acknowledged by the receipt of the certified or registered mailing.

Applicant: SCE:

(Name)

Business Customer Division
(Title) Southern California Edison Company
2244 Walnut Grove Avenue
(Address) Rosemead, CA 91770

(City, State, Zip)

7. NONWAIVER
The failure of either Party to enforce any of the terms and conditions or to exercise any right or privilege in this Agreement shall not be construed as a waiver of any such term and conditions or rights or privileges, and the same shall continue and remain enforce and effect as if no such failure to enforce or exercise had occurred.

8. SEVERABILITY
In the event that any of the provisions, or portions thereof, of this Agreement are held to be unenforceable or invalid by the Commission, or any court of competent jurisdiction, the validity and enforceability of the remaining provisions or any portion thereof shall not be affected.

9. APPLICABLE LAWS, RULES, AND REGULATIONS
This Agreement shall be subject to, and interpreted under the laws, rules, decisions and regulations of the State of California, without regard to its conflict of laws principles, the Commission, and SCE's Commission-approved tariffs.

SOUTHERN CALIFORNIA EDISON COMPANY
SCHEDULE LS-1 OPTION E, ENERGY EFFICIENCY-LIGHT EMITTING DIODE (LED)

FIXTURE REPLACEMENT RATE AGREEMENT
Form 14-965
06/2016
3 10. CALIFORNIA PUBLIC UTILITIES COMMISSION JURISDICTION

10.1 This is a filed form tariff agreement authorized by the Commission for use by SCE. No officer, inspector, solicitor, agent or employee of SCE has any authority to waive, alter, or amend any part of this Agreement except as provided herein or authorized by the Commission. This Agreement is to be used in conjunction with Schedule LS-1 and supplements the terms and conditions of the Applicant's electric service under Schedule LS-1.

10.2 This Agreement shall at all times be subject to such changes or modifications by the Commission as said Commission may, from time to time, direct in the exercise of its jurisdiction.

10.3 Notwithstanding any other provisions of this Agreement, SCE has the right to unilaterally file with the Commission, pursuant to the Commission's rules and regulations, an application for change in rates, charges, classification, service, or rule or any agreement relating thereto.

11. ENTIRE AGREEMENT
This Agreement, including SCE’s Commission-approved tariffs, constitutes the complete agreement and understanding between the Applicant and SCE regarding the LED Fixtures replacement costs.

Prior agreements, representations, understandings, whether expressed or implied, and communications, oral or written, between the Applicant and SCE shall not be construed to be a part of this Agreement.

12. AUTHORIZATION SIGNATURE
In witness whereof, the Parties hereto have caused this Agreement to be signed by their duly authorized representatives.

APPLICANT
BY:

NAME:

TITLE:

DATE SIGNED:

SOUTHERN CALIFORNIA EDISON COMPANY
BY:

NAME:

TITLE:

DATE SIGNED:

Form 14-965
06/2016
4 SOUTHERN CALIFORNIA EDISON COMPANY
EXHIBIT “A”
SCHEDULE LS-1 OPTION E,

ENERGY EFFICIENCY-LIGHT EMITTING DIODE (LED) FIXTURE REPLACEMENT

APPLICANT

CUSTOMER ACCOUNT NO.

SERVICE ACCOUNT NO.

(Additional account numbers/addresses may be attached hereto.)

SERVICE ADDRESS

APPLICANT REQUESTED READY TO SERVE DATE
ASAP

SCE READY TO SERVE DATE
DESCRIPTION OF LED FIXTURES/SCOPE OF WORK: SPECIFY HOW MANY STREET LIGHTING

FIXTURE REPLACEMENTS ARE BEING REQUESTED AND AGREED TO UNDER THIS AGREEMENT AND OTHER RELEVANT DETAILS.

W.O. No(s):

CITY OF CYPRESS
CITY COUNCIL REPORT
City Council Regular 13.

FROM: Douglas Dancs, Director of Public Works
DATE: 05/08/2023
SUBJECT: Award a Contract for LED Street Sign Upgrades, Project 338

RECOMMENDATION

1. Award a contract to Macadee Electrical Construction for $183,269, and authorize a contingency of $27,500; and

2. Approve a Task Order for Construction Inspection Services to Ardurra Group Inc., for $10,200, and authorize a contingency of $1,500.

DISCUSSION
The City has illuminated street name signs at most signalized intersections in Cypress. A majority of these signs used fluorescent tubes, which are prone to failure, require replacement every one to two years, and cost more to maintain than newer technologies.

Many projects within the seven-year Capital Improvement Program (CIP) are part of a multi-year program to ensure the infrastructure is adequately funded and maintained. This is the final year of a five-year program to replace all fluorescent tubes with light emitting diode (LED) lighting which is more energy efficient, has a longer life span, requires less maintenance, and provides better visibility. This project will replace 56 illuminated signs at various intersections throughout the City and will complete the citywide conversion to LEDs.

The City received two bids with Macadee Electrical Construction as the low bidder.

Macadee has performed various tasks for the City throughout the years, including the first two years of this five-year LED conversion program. Ardurra Group, Inc., the City's on-call construction manager, will inspect the project. A summary of project award information is attached.

BUDGET IMPACT
The estimated project cost is $222,469 and sufficient amounts are budgeted in the Lighting District Fund for these capital improvements.

LEGAL REVIEW
None required.

APPROVED BY: Peter Grant, City Manager
Attachments
Location Map
Award Information and Bid Proposals
Ardurra Task Order

Project Award Information Checklist
Description of Project:

Upgrade (56) Edge Lit LED Street Name Signs and (6) Reflective Street Name Signs.

Contract Working Days: 30 working days
Orange County Register March 8, 2023
Publication Date:

Notice Inviting Bids Sent to: The Orange County Register, F.W. Dodge, Reed Construction Data, Construction Bid Board, Southern
California Builders Association, Association General
Contractors of America
Bid Opening Date: March 28, 2023
No. of Bid Packets Purchased: Eleven (11)
Bidders Amount

1. Macadee Electrical Construction, Chino, CA $ 183,269.00

2. Select Electrical, Inc., Vista, CA $ 250,285.00
Apparent Low Bidder: Macadee Electrical Construction - $183,269.00 Qualified to Perform Work: Yes. Staff confirmed bid was responsive.

Contractor’s License: Registration with DIR:

Valid at Time of Award: Yes Contractor: Yes
Valid at Time of Bid: Yes Sub-Contractor: N/A
Experience:

The apparent low bidder has performed this type of work for multiple government agencies in Southern California.

Construction
Management/Inspection Firm: Ardurra Group, Inc.

On-Call Contract Date: June 27, 2022
Amount of Task Order: $ 10,200.00

1960 East Grand Avenue, El Segundo, CA 90245 | 310.359.1203 | www.ardurra.com April 27, 2023
Eric Dong
Public Works Department, City of Cypress
5275 Orange Avenue
Cypress, CA 90630
Subject: Proposal for Construction Inspection Services for The National Edge-Lit LED Illuminated Street Name Signs, Project 338
Dear Mr. Dong,
Ardurra Group, Inc. is pleased to present this proposal to the City of Cypress to provide professional construction inspection services for National Edge-Lit LED Illuminated Street Name Signs, Project 338 in accordance with Attachment “A” – Scope of Services and Attachment “B” – Schedule of Compensation. All work will be completed pursuant to the City of Cypress On-Call Construction Management and Inspection Services Contract dated June 27, 2022.

Proposed Staffing
Ardurra proposes Arash Rostamian, PE as the inspector for this task order. Arash is familiar with City of Cypress personnel and procedures.

Respectfully submitted,
Ardurra Group, Inc.

Omar Alameddine
Project and Construction Management Group Leader
2 | page
Attachment “A”
Scope of Services
The scope of services includes part-time and intermittent inspection services. Below is a list of services included in this proposal:

1. Represent the City’s interests with the general construction inspection of this project.

2. Monitor the contractor's compliance with the project contract, specifications, and National Pollutant Discharge Elimination System (NPDES).

3. Assist City staff with field public relations, including distributing construction notices and responding to inquiries of residents and the general public.

4. Attend the preconstruction meeting and subsequent weekly field meetings, as needed.

5. Assist the City’s construction manager to monitor and document that the contractor adheres to the approved construction schedule.

6. Be present on the job site when construction is in progress and when inspection is required. Full-time inspection work is proposed as requested by the City. Ardurra will not be responsible for observing construction activities that are implemented when its inspector is not scheduled/present on site.

7. Provide assistance and direction to technicians performing materials tests, as needed. Materials testing is anticipated to be provided by others and is not included in this proposal.

8. Measure and verify the project pay item quantities, in-place. Confirm pay item quantities with the contractor prior to submission of invoice for payment to the City’s construction manager.

9. Review the contractor's invoices.

10. Assist the City’s construction manager with the review and processing of requests for information (RFIs), change orders, and approved time and materials work.

11. Prepare daily inspection reports (Daily Activity Report) for days that inspector is present for this project.

12. Prepare Weekly Statement of Working Days for each week the inspector is present for this project.

13. Identify items requiring corrective action by either the contractor or City. Monitor and document completion of corrective actions.

14. Develop punch list items and monitor completion of punch list corrections. 3 | page
Attachment “B”
Schedule of Compensation
Note: Terms and conditions shall be pursuant to the City of Cypress On-Call Construction Management and Inspection Contract dated June 27, 2022.

Exclusions to Scope and Fee: The following items are specifically excluded:
 Submittal review
 Nighttime / weekend inspection and weekday hours in excess of a regular 8-hour shift that would be subject to overtime pay, unless so authorized in writing by the City.  Material testing
Role / Name
Total
Hours
Hourly
Rate
PELicensed Inspector 60.00 $ 170.00
Public Works Inspector - $ 152.00
TotalEstimated Fee $ 10,200.00
City ofCypress
Construction Inspection Servicesfor NationalEdge-LitLED Illuminated Street Name Signs, Project 338 30Working DayConstruction Duration
Extended
Fee
$ 10,200.00
-
CITY OF CYPRESS
CITY COUNCIL REPORT
City Council Regular 14.

FROM: Mark Lauderback, Chief of Police
DATE: 05/08/2023
SUBJECT: Award a Contract for Parking Citation Processing

RECOMMENDATION
Award a contract to Data Ticket, Inc. to provide parking citation processing.

DISCUSSION
The Police Department issues an average of 7,500 parking citations annually. The City has contracted for parking citation processing since 1980. Citation processing firms are responsible for data entry, file maintenance, payment processing, delinquent payment notifications, habitual offender reports, special collections, interfacing with the DMV, telephone inquiries, administrative adjudication processes, and the payment of state and court charges. The City has contracted with Data Ticket, Inc. for parking citation processing since 1999.

The current contract with Data Ticket, Inc. ends June 30, 2023. In March, a Request for Proposals (RFP) was prepared and bids were sought from qualified parking citation processing companies. Proposals were received by the two processing firms, Data Ticket, Inc. and Phoenix Group. The Data Ticket, Inc. proposal was selected as the top-rated proposal.

The contract will be for three-years with an option for the City to extend the agreement for two, one-year options. Citation processing services are estimated to cost the City approximately $17,500 to $20,000 per year and the total not to exceed amount for the initial three-year term of the contract is $60,000.

BUDGET IMPACT
Sufficient amounts are included in the FY 2023-24 proposed General Fund budget for parking citation processing in the Police Department.

LEGAL REVIEW
The City Attorney has reviewed and approved this contract as to form.

The City Attorney has reviewed and approved this contract as to form.

APPROVED BY: Peter Grant, City Manager
Attachments
Citation Processing Agreement

CITY OF CYPRESS
CITY COUNCIL REPORT
City Council Regular 15.

FROM: Mark Lauderback, Chief of Police
DATE: 05/08/2023
SUBJECT: Approve a Prosecution Services Agreement with the County of Orange

RECOMMENDATION
Approve a five-year agreement for prosecution services with the County of Orange.

DISCUSSION
The City has contracted with the County of Orange District Attorney's Office for prosecution services since 1969. The agreement allows the District Attorney, in lieu of the City Attorney, to provide prosecution services for criminal offenses of Municipal Code statutes. Services are provided as-needed. The current agreement expires June 30, 2023.

The County will charge the City $301.43 for each referral and $183.74 per hour of attorney time and $117.69 per hour for clerical support for multi-day prosecutions. Rates are adjusted annually based on actual costs. Over the past five years, the City has not utilized these services, but prior to 2018, annual County prosecution costs averaged $1,950. Any costs for prosecution services are paid from the City Attorney's budget.

BUDGET IMPACT
Sufficient funds are available in the City Attorney's budget in the General Fund to pay for as-needed prosecution services provided by the County.

LEGAL REVIEW
The City Attorney has reviewed the agreement and approved as to form.

APPROVED BY: Peter Grant, City Manager
Attachments
Prosecution Services Agreement

AGREEMENT FOR PROSECUTION SERVICES
THIS AGREEMENT FOR PROSECUTION SERVICES (“AGREEMENT”) , made and entered into by and between the COUNTY OF ORANGE, CALIFORNIA, a political subdivision of the State of California and a body politic and corporate (hereinafter designated as “COUNTY”), and the CITY of ___________________, a municipal corporation, located in the County of Orange (hereinafter designated as “CITY”).

In consideration of the terms herein COUNTY and CITY agree as follows:

1. COUNTY, through its District Attorney (DA), shall render to CITY such services as may be required to prosecute criminal violations of CITY’s ordinances by persons 18 years of age or older in courts.

2. COUNTY shall provide all staffing and supervision necessary to prosecute criminal violations of CITY ordinances as contemplated by this AGREEMENT.

3. The final authority for rendition of services, standards of performance, and other matters incident to the performance of prosecution services and the control of COUNTY personnel shall remain in COUNTY. The DA shall have the exclusive authority to file a criminal complaint and conduct the prosecution of any criminal violations of CITY ordinances.

4. CITY, its officers, agents, and employees are not liable for the direct payment of any salaries, wages, or other compensation to any COUNTY personnel performing services under this Agreement.

CITY, its officer, agents, and employees are not liable for compensation or indemnity to any COUNTY employee for any injury or sickness arising out of his or her employment.

5. COUNTY, its officers, agents, and employees are not liable for the acts or omissions of CITY, its officers, agents, or employees.

6. CITY and COUNTY shall hold each other harmless from liability for acts or omissions under this AGREEMENT of the officers, agents, and employees of the other.

7. (a) Referrals for Complaints. CITY may refer suspected violations of its criminal ordinances by persons 18 years or older to the DA for a determination as to whether a criminal complaint should be filed. CITY shall pay COUNTY the sum of $301.43 for each referral, without regard to the issuance of a complaint. For the purposes of this AGREEMENT a “referral” means an occurrence constituting an alleged violation of one or more CITY ordinances by one person. CITY shall provide investigation materials, reports, copies of its ordinances, and additional records or information as requested by the DA. In cases where prosecution is authorized by the DA, the DA will draft and prepare the complaint.

When “not guilty” pleas are entered on such complaints, the DA will prosecute such cases through trial without further charge, except as provided in Paragraph 7(c) herein. CITY shall pay COUNTY $183.74 per hour of attorney time and $117.69 per hour of clerical support’s time for services performed under this paragraph for trials that exceed one day.
(b) Additional Trial Prosecution. Trials on CITY citations and trials on CITY complaints not issued pursuant to Paragraph 7(a) above will not be tried by the DA without the consent of the Assistant DA in charge of the branch service the judicial district in which CITY is located. The DA may determine that CITY ordinances of exclusively local concern should be prosecuted by the CITY attorney. Except as provide in Paragraph 7(c), CITY shall pay COUNTY 301.43 for each DA prosecution of a CITY citation or a CITY complaint not issued pursuant to Paragraph 7(a). For the purposes of this paragraph, “DA prosecution” means the DA’s appearance in Court after witnesses are subpoenaed on the first setting for a defendant’s trial. Where CITY asks the DA to request dismissal before subpoenas have been issued and the DA agrees to that request, no charge will be made. As prosecutor, the DA has the right to control the disposition of all complaints, trials, and appeals herein described in accordance with the duties of his office. CITY will provide investigation materials, reports, citations, copies of its ordinances, and additional records or information necessary for trial as requested by the DA. CITY shall pay COUNTY $183.74 per hour of attorney time and 117.69 per hour of clerical support’s time for services performed under this paragraph for prosecutions in excess of one day. (c) Appeals. CITY may request the DA to file, answer, and litigate appeals of convictions of violations of CITY’s ordinances. CITY shall pay COUNTY $183.74 per hour of attorney time and $117.69 per hour of clerical support’s time for services performed under this paragraph. (d) The rates for services specified in this AGREEMENT shall be reviewed annually by COUNTY’s Auditor-Controller and, if it is determined that a change in the rate is necessary to reflect change in costs to COUNTY, COUNTY shall notify CITY of such change prior to June 30, and the change shall become effective the following July 1.

8. Within ten days following the end of each calendar quarter, COUNTY shall render to CITY a statement of the cost of services performed under this AGREEMENT, and CITY shall pay COUNTY the amount charged within 20 days after receipt of such statement. Such statement shall consist of the number of referrals for complaints, additional trial prosecutions, and itemized appeals. If such payment is not received by COUNTY within 30 days after rendition of billing, COUNTY may satisfy such indebtedness from any funds of CITY on deposit with COUNTY without giving further notice to CITY of COUNTY’s intention to do so.

9. Upon execution of this AGREEMENT, CITY shall provide two copies of its municipal ordinances to the DA. CITY shall further provide the DA with complete details on any additions, deletions, or corrections to the municipal ordinances that may occur during the term of this AGREEMENT.

10. This AGREEMENT shall continue in full force and effect for a five-year period, commencing July 1, 2023, and terminating on June 30, 2028, provided that either party may terminate the AGREEMENT upon 30 days’ written notice. CITY shall pay all compensation for services rendered under this AGREEMENT irrespective of the termination or expiration of this AGREEMENT. Termination of this AGREEMENT shall not affect the duties of the parties already initiated that extend beyond the termination of this AGREEMENT.

IN WITNESS WHEREOF, COUNTY has caused this AGREEMENT to be executed by the Chairman of its Board of Supervisors and Attested by the Clerk of said Board, and CITY has caused this AGREEMENT to be executed by its Mayor and attested by the CITY Clerk on the dates set opposite their respective signatures.

Dated: ______________, 2023
“COUNTY”
COUNTY OF ORANGE, a political subdivision of the
State of California

SIGNED AND CERTIFIED THAT A COPY OF THIS
DOCUMENT HAS BEEN DELIVERED TO THE By _______________________________________ CHAIRMAN OF BOARD Chairman of the Board of Supervisors
______________________________________
Robin Stieler
Clerk of the Board of Supervisors
of Orange County, California “CITY”
APPROVED AS TO FORM _________________________________________ LEON J. PAGE, COUNTY COUNSEL A municipal corporation
By: ___________________________________ By: ______________________________________ Mayor
Dated: _______________________, 2023 Dated: __________________________, 2023 ATTEST:

By: ______________________________________
City Clerk
Dated: ___________________________, 2023
CITY OF CYPRESS
CITY COUNCIL REPORT
City Council Regular 16.

FROM: Douglas Dancs, Director of Public Works
DATE: 05/08/2023
SUBJECT: Reject All Bids for Senior Center Interior Improvements, Project 290

RECOMMENDATION
Reject all bids for Senior Center Interior Improvements, Project 290.

DISCUSSION
The FY 2022-23 Capital Improvement Program includes a Recreation and Park District project to improve the interior of the Senior Center, which was built in 1993. The project scope includes new paint, flooring, lighting and ceilings, a reconfigured reception desk, refinished wood cabinets and doors, and other miscellaneous improvements to the kitchen, lobby, and multi-purpose room.

The project scope was divided into a base bid and additive bid items due to volatility in construction costs and contractor availability. Public Works received four bids, and the lowest bidder, Empire Design & Build, had a significant cost difference between the base bid and the total bid including all additive items.

Public Works recommends rejecting all bids, revising the project scope to include all improvements in the base bid, and soliciting new bids. Combining similar trades and types of work into one base bid will provide the most cost savings for the District due to economies of scale. This revised project scope will also address all necessary improvements and repairs, while minimizing disruptions to the Senior Center.

After soliciting new bids, Public Works will bring a recommendation for a construction contract to the City Council in June and construction will begin shortly thereafter. The Senior Center will remain open during construction and the project will be phased to minimize construction impacts.

BUDGET IMPACT
None.

LEGAL REVIEW
None required.

APPROVED BY: Peter Grant, City Manager
Attachments
Project Bid Information
Project Bid Information
Description of Project:

New wall paint, full replacement of flooring, new energy efficient lighting and ceilings, new reception desk, repair/replacement of multi-purpose room partition wall, refinishing wood cabinets, counters, and doors, new door hardware, and other miscellaneous improvements to the kitchen, lobby, multipurpose room, staff offices and activity rooms.

Orange County Register
Publication Date:

March 23 and 30, 2023
Notice Inviting Bids Sent to: CIPList.com, The Orange County Register, McGrawHill Construction, Dodge Construction Network, AGC Plan Room, Construct Connect
Bid Opening Date: April 21, 2023
No. of Bid Packets Purchased: 18
Bidders Base Bid Amount Base Bid + Additives A - K

1. Empire Design & Build $361,000 $ 1,139,000

2. At Your Service Construction & Energy $425,000 $ 947,000

3. Centrex Construction $515,830 $ 914,015

4. Genesis Builder Inc. DBA K2 Painting $528,000 $ 990,502 CITY OF CYPRESS
CITY COUNCIL REPORT
City Council Regular 17.

FROM: Ad Hoc Subcommittee, Mayor Hertz-Mallari and Council Member Burke DATE: 05/08/2023
SUBJECT: Consider Recommended Process for Council Members to Add Items to the City Council Agenda from Mayor Hertz-Mallari and Council Member Burke

RECOMMENDATION
Approve the recommended policy for Council Members to add items to the City Council agenda.

DISCUSSION
At its April 24 meeting, the City Council appointed Mayor Hertz-Mallari and Council Member Burke to an ad hoc subcommittee to recommend improvements to the process by which Council Members may add items to the City Council agenda. The subcommittee met several times and worked closely with the City Manager, City Clerk and City Attorney to develop the attached recommendation. The recommendation presents two options for Council Members to add agenda items and includes important background about the City Council agenda setting process and the recommended policy's goals.

As required by the City Charter and Municipal Code, the majority of items that appear on the City Council agenda originate from City departments and are coordinated by the City Manager. These are essential business items necessary for the City to operate and require City Council consideration or direction. Every December the City Council adopts a meeting calendar for the upcoming year that provides Council Members six opportunities to bring important issues to the City Council’s attention at open, public meetings.

The recommended policy provides two more options for Council Members to add items to the City Council agenda and aims to
Be easy to understand and explain
Respect the organization’s limited resources
Balance individual Council Member’s interests with the City Council’s direction and the Strategic Plan
Provide Council Members the opportunity to advocate for issues that are important to them
Ensure the City Council is not surprised by an item that appears on the agenda from Ensure the City Council is not surprised by an item that appears on the agenda from one of its members
Protect the City Council’s ability to efficiently and effectively conduct City business Encourage thoughtful collaboration between Council Members and the City Manager BUDGET IMPACT
None.

LEGAL REVIEW
The City Attorney helped draft and reviewed the recommended policy.

APPROVED BY: Peter Grant, City Manager
Attachments
AHSC Recommendation
Existing Policy to Add Items to the Agenda

POLICY FOR COUNCIL MEMBERS TO ADD ITEMS TO THE

CITY COUNCIL AGENDA
Introduction
As required by the City Charter and Municipal Code, the majority of items that appear on the City Council agenda originate from City departments and are coordinated by the City Manager. These are essential business items necessary for the City to operate and require City Council consideration or direction.

Every December the City Council adopts a meeting calendar for the upcoming year that provides Council Members opportunities to bring important issues to the City Council’s attention at open, public meetings:

February Mid-Year Budget Update May - June Budget Development February Mid-Year CIP Update May - June CIP Development March Strategic Planning September Strategic Planning
Overview
The following process provides Council Members two more options to add items to the City Council agenda.

Goals
The policy for Council Members to add items to the City Council agenda aims to:
• Be easy to understand and explain
• Respect the organization’s limited resources
• Balance individual Council Member’s interests with the City Council’s direction and the Strategic Plan
• Provide Council Members the opportunity to advocate for issues that are important to them
• Ensure the City Council is not surprised by an item that appears on the agenda from one of its members
• Protect the City Council’s ability to efficiently and effectively conduct City business • Encourage thoughtful collaboration between Council Members and the City Manager
Process for Adding Items to the Agenda
Council Members are encouraged to discuss proposed agenda items with the City Manager before presenting them to the City Council so that the City Manager can help refine ideas, discuss related projects, and provide technical support.

A. Through the City Manager
Council Members may request (preferably in writing) that the City Manager add an item to an agenda at least seven days before the City Council meeting. The City Manager may add the item as his/her discretion and shall notify the City Council as soon as practical that the item will appear on the agenda.

B. During a City Council meeting
Council Members may propose an item for a future agenda during the portion of the meeting reserved for this purpose (Council Member Items for Future Consideration).

The request shall include a clear description of the item so that staff may understand the background required, nature and desired outcome and include the date of the meeting requested. The request shall be subject to the following conditions:
• If a proposal receives support from one other Council Member, it will appear on a future agenda for discussion with a brief agenda report. • If a proposal receives support from at least two other Council Members, it will appear on a future agenda for action/direction with a full agenda report.

Scheduling Items Added to the Agenda by Council Members The Mayor and City Manager shall determine the date of the meeting at which the item will appear and select the earliest practicable date that accounts for City Council and staff workloads.

Repeat Proposals
Council Members may only propose the same (or a substantially similar) item once per calendar year. Once the City Council has acted on an item, the City Council will not revisit it, nor a substantially similar item without support from two other Council Members.

Adopted February 28, 2022
Process for Council Members Adding Items to the Agenda
1 22230228 Adopted to Process for Council Members to Add Items to Agenda.docx

1. At a regularly scheduled City Council meeting, a Council Member may request an item be added to a future City Council meeting during the Council Member Reports and Remarks portion of the agenda. The request must be unambiguous, for example, “I would like to add [description of the item and desired action] to the [date] agenda.” a. If the item includes any attachment (i.e. a resolution, proclamation, advocacy letter, etc.), the attachment must be provided to the City Manager at least 10 days before the City Council meeting at which the item will be considered. The City Manager will distribute any attachments to the City Council and arrange for the item to appear on an agenda. If the attachment is not provided to the City Manager at least 10 days before the City Council meeting at which the item would otherwise be considered, the item will be agendized at a future City Council meeting.
b. If the City Manager determines preparing the item for the agenda will require significant resources, the Council Member may request the City Council consider placing an item on the agenda to provide the City Manager direction and resources to prepare the item at the next City Council meeting or withdraw the request.

2. If two or more Council Members object to adding an item to an upcoming agenda, the item will be added to the agenda as a discussion item for further direction by the City Council and not final action.

3. If an item comes to a Council Member’s attention between City Council meetings, the Council Member may request an item be added to a future regularly scheduled City Council meeting by submitting a written request to the City Manager at least 10 days before the City Council meeting at which the item will be considered. If the item includes any attachment (for example a resolution, proclamation, advocacy letter, etc.), the attachment must be included with the written request. The City Manager will distribute the written request and attachment to the City Council and arrange for the item to appear on an agenda.

4. If, prior to the City Clerk posting the agenda, two or more Council Members inform the City Manager of their objection to an item submitted per Section 3 above the item will be added to the agenda as a discussion item for further direction by the City Council and not final action.

Cypress City CouncilMay 8, 2023

Cypress City Council
May 8, 2023