b. Workers’ Compensation Buffer Program
c. Earth Movement & Flood and Difference in Coverage Program d. Terrorism Insurance Program
e. Underground Storage Tank and Environmental Program
5. Authorize the City Manager to approve funding to cover FY 2022/23 City Special Events Insurance for events including but not limited to Fourth of July fireworks show, winter ice-skating events, and other City-sponsored events as created and held, in an amount not to exceed $300,000.
6. Authorize the City Manager to approve the City’s obligation to pay the State of California DIR estimated assessment in the amount not to exceed $500,000 for the period of July 1, 2022 to June 30, 2023.
DISCUSSION
Staff is recommending renewal with Independent Cities Risk Management Authority (“ICRMA”), a joint powers authority formed in 1980 in accordance with California Government Code Section 6500. ICRMA’s purpose is to provide: i) excess and reinsurance to protect members from extensive financial debt due to large claims, settlements and judgments, ii) group insurance purchasing power that can offer broader coverage at a lower cost, iii) rate stability, and iv) protect individual member cities through pooling of losses, and self-insurance. ICRMA also offers to its’ members actuarial services, appraisal services, safety trainings, claims audits, contract risk transfer consultation, and other miscellaneous services and resources. Currently comprised of 15 California cities, Santa Ana joined ICRMA in July 2019.
For this renewal period, The City’s Workers’ Compensation coverage experienced an increase of approximately twelve percent (12%). This program coverage, which had been trending downward for the last two years, experienced this change primarily due to the increased number of claims during 2020 and 2021 related to COVID-19 exposures, testing, and treatment.
The City’s premiums for Liability and Property increased approximately twenty-one percent (21%). The significant program increases occurred in coverages for liability, cyber and property primarily due to the following:
1. An insurance market with very few excess carriers willing to quote municipal government entities in California, primarily those with Police departments;
2. A continuing rise in jury awards and settlement amounts;
3. An increasing worldwide number and size of varying cyber-attacks;
4. A rising amount of ADA claims in both cyber and physical environments; and
5. The continual rise in costs for repair and replacement of damaged vehicles, property and equipment.
City Council 22 – 2 7/19/2022
ICRMA JPA Renewal / Broker Agreement / Associated Premiums and Costs July 19, 2022
QUOTED & ESTIMATED PREMIUMS & FEES
WORKERS’ COMPENSATION
COVERAGES FY 2020/21 FY 2021/22 FY 2022/23
Excess Pool Workers’
Compensation Program $ 386,000 $ 298,553 $ 345,678
Excess Workers’ Compensation
Buffer $ 194,000 $ 240,118 $ 257,356
Total $ 580,000 $ 538,671 $ 603,034
Percent Change -5% -7% 12%
LIABILITY AND PROPERTY
COVERAGES FY 2020/21 FY 2021/22 FY 2022/23
Excess Pool Liability Program $ 1,680,000 $ 3,936,181 $ 5,123,142 Auto Physical Damage Program $ 79,000 $ 119,215 $ 129,488 Property & Equipment Program $ 455,000 $ 472,724 $ 485,380 Crime Program $ 12,000 $ 11,914 $ 14,233
Cyber Program $ 31,000 $ 66,441 $ 111,964
Excess Liability Buffer $ 786,000 $ 993,265 $ 1,233,321 DIC Earth Movement & Flood $ 844,000 $ 985,856 $ 1,126,819 Terrorism $ 13,000 $ 12,330 $ 13,164
Underground Storage TanksEnvironmental $ 8,000 $ 10,157 $ 15,000 Total $ 3,908,000 $ 6,596,162 $ 8,855,546
Percent Change 22% 63% 21%
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
FISCAL IMPACT
Funds are budgeted in the adopted FY 2022-23 Liability & Property insurance account No. 08009051-64010 for an estimated premium and administrative cost not to exceed $9,036,300. Funds are budgeted in the adopted FY 2022-23 Workers’ Compensation insurance account No. 08209054-64010 for an estimated premium and administrative cost not to exceed $1,300,000.
Fiscal Impact Verified By: Kathryn Downs, CPA, Executive Director – Finance and Management Services Agency
EXHIBIT(S)
1. Agreement with Arthur J. Gallagher Insurance Brokers of California, Inc. For Insurance Broker Services, Client Service Agreement
City Council 22 – 3 7/19/2022
ICRMA JPA Renewal / Broker Agreement / Associated Premiums and Costs July 19, 2022
Submitted By: Jason Motsick, Executive Dir Human Resources Approved By: Kristine Ridge, City Manager
City Council 22 – 4 7/19/2022
AGREEMENT FOR CONSULTANT SERVICES BETWEEN
CITY OF SANTA ANA AND ARTUR J. GALLAGHER
INSURANCE BROKERS OF CALIFORNIA, INC.
INSURANCE BROKER SERVICES
THIS AGREEMENT is made and effective as of July 1, 2022, between the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter referred to as “City"), and Arthur J. Gallagher & Co.
Insurance Brokers of California, Inc. a Corporation (hereinafter referred to as "Consultant").
Collectively, City and Consultant are also referred to as “party” or “parties.” In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:
1. TERM
This Agreement shall commence on July 1, 2022, and is subject to annual renewal at the mutual agreement in writing of both parties until June 30, 2025. Either party can cancel this Agreement with thirty (30) days’ written notice to the other party.
2. SERVICES
Consultant shall perform insurance brokerage services for the placement of the City of Santa Ana’s ancillary insurance programs as outlined in Exhibit A.
3. PERFORMANCE
Consultant shall at all times faithfully, competently and to the best of his or her ability, experience, and talent, perform all tasks described herein. Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Consultant hereunder in meeting its obligations under this Agreement.
4. PAYMENT
a. The City agrees to pay Consultant for insurance premiums invoiced for insurance placements.
b. Consultant will submit invoices for insurance premiums. Invoices shall be submitted once insurance coverage is bound. Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. If the City disputes any of Consultant's fees, it shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice.
5. LEGAL RESPONSIBILITIES
The Consultant shall keep itself informed of all local, State and Federal ordinances, laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Consultant shall at all times observe and comply with all such ordinances, laws and regulations. The City, and its officers City Council 22 – 5 7/19/2022
and employees, shall not be liable at law or in equity occasioned by failure of the Consultant to comply with this section.
6. RELEASE OF INFORMATION
a. All information gained by Consultant in performance of this Agreement shall be considered confidential and shall not be released by Consultant without City's prior written authorization. Consultant, its officers, employees, agents or subcontractors, shall not without written authorization from Risk Management Division of the Human Resources Department or unless requested by the City Attorney, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement or relating to any project or property located within the City.
Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena.
b. Consultant shall promptly notify City should Consultant, 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 or with respect to any project or property located within the City. City retains the right, but has no obligation, to represent Consultant and/or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, City's right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
7. INSURANCE
Prior to undertaking work under this Agreement, Consultant shall maintain and shall require its subcontractors (if any) to obtain and maintain insurance as described below:
a. Professional Liability or Errors and Omissions Insurance- appropriate to the consultant’s profession with limits of no less than $1,000,000 per occurrence or claim.
b. If consultant maintains broader coverage and/or higher limits than the minimums required by this Agreement, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimums limits of insurance and coverage shall be available to the City.
c. For any claims related to the services performed pursuant to this Agreement, the Consultant’s insurance coverage shall be primary coverage at least as broad as ISO CG 20 0104 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.
d. Each insurance policy required by this Agreement shall provide that coverage shall not be cancelled, except with notice to the City.
e. Consultant hereby grants to the City and a waiver of any right to subrogation that any insurer of said Consultant may acquire against the City by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether the City has received a waiver of subrogation endorsement from the insure. City Council 22 – 6 7/19/2022 f. Claims made policiesI. The restorative date must be shown, and must be before the date of the Agreement or the beginning of work pursuant to this Agreement.
II. Insurance must be maintained and evidence of insurance provided for at least five (5) years after completion of work specified in this Agreement.
III. If coverage is cancelled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the contract effective date, the Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work. g. Verification of Coverage- Consultant shall furnish to the City original certificates for insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. h. Special Risks or Circumstances- City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
8. INDEMNIFICATION
Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Consultant or its Consultants, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in Section 2 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Consultant’s services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
9. NOTICES
Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, that provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by Notice. Notice shall be effective upon delivery to the addresses specified below or on the third business day following deposit with the City Council 22 – 7 7/19/2022
document delivery service or United States Mail as provided above.
City: City of Santa Ana
Attn: Clerk of Council
20 Civic Center Plaza, M-30
P.O. Box 1988
Santa Ana, CA 92701
With courtesy copies to: Risk Manager
City of Santa Ana
20 Civic Center Plaza, M-28
P.O. Box 1988
Santa Ana, CA 92701
City Attorney
City of Santa Ana
20 Civic Center Plaza, M-29
P.O. Box 1988
Santa Ana, CA 92701
To Consultant: Arthur J. Gallagher & Co., Insurance Brokers of California, Inc.
Susan J. Blankenburg
San Francisco, CA 94111
415-536-8417
[email protected]
10. ASSIGNMENT
The Consultant shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of the City. Upon termination of this Agreement, Consultant's sole compensation shall be payment for actual services performed up to, and including, the date of termination or as may be otherwise agreed to in writing between the City Council and the Consultant.
11. LICENSES
At all times during the term of this Agreement, Consultant shall have in full force and effect, all licenses required of it by law for the performance of the services described in this Agreement.
12. GOVERNING LAW
The City and Consultant understand and agree that the laws of the State of California shall govern the rights, obligations, duties and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in City Council 22 – 8 7/19/2022
the municipal, superior, or federal district court with geographic jurisdiction over the City of Santa Ana. In the event such litigation is filed by one party against the other to enforce its rights under this Agreement, the prevailing party, as determined by the Court's judgment, shall be entitled to reasonable attorney fees and litigation expenses for the relief granted.
13. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material.
14. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Consultant warrants and represents that he or she has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder. The City Manager is authorized to enter into an amendment on behalf of the City to make the following non-substantive modifications to the agreement: (a) name changes; (b) extension of time not to exceed one year; (c) non-monetary changes in scope of work; (d) agreement termination.
This section intentionally left blank
City Council 22 – 9 7/19/2022
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.
CITY OF SANTA ANA
By: _______________________________
Kristine Ridge
City Manager
ATTEST:
By: _______________________________
Daisy Gomez
Clerk of the Council
Arthur J. Gallagher & Co.
By: _______________________________
Riley Binford
Area President
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By: _______________________________
Laura A. Rossini
Chief Assistant City Attorney
CONSULTANT
RECOMMENDED FOR APPROVAL Susan J. Blankenburg
1255 Battery Street, Suite 450
San Francisco, CA 94111
____________________________ (415) 536-8417
Jason Motsick
Executive Director
Human Resources Department
[email protected]
PM Initials:
Date:
City Council 22 – 10 7/19/2022
EXHIBIT A
The following outlines services provided by Gallagher over the term of this Agreement:
Use its best efforts to secure lines of insurance coverage on Client’s behalf including but not limited to: General Liability Buffer, Workers’ Compensation Buffer, Earth Movement & Flood and Difference in Coverage, Terrorism, and Underground Storage Tank and Environmental programs. Consult with the City of Santa Ana to formulate a marketing strategy that focuses on delivering a cost-effective risk management strategy and structure based upon current market conditions. Work with the City of Santa Ana to produce comprehensive underwriting data and criteria for insurance carrier negotiations.
Formally present coverage submissions to agreed upon insurance carrier(s) and negotiate terms on behalf of the City of Santa Ana.
Summarize the results of executing the marketing strategy developed with the City of Santa Ana and communicate program recommendations.
Provide consultation to the City of Santa Ana on exposures, existing coverage, and the desirability and/or feasibility of potential program changes when recommended by Gallagher or when requested by the Client.
Request change endorsements, when requested by the Client or when otherwise necessary, ensuring accuracy and delivery in a timely manner.
Administration of insurance program, including policy review and issuance, invoicing, coordination and/or issuance of required documentation, i.e., certificates of insurance, and other program administration, as required by the Client.
Review accounting and billing data received from insurance markets on Client’s behalf to ensure accuracy.
City Council 22 – 11 7/19/2022
Public Works Agency
www.santa-ana.org/pw
Item # 23
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
July 19, 2022
TOPIC: Construction Funding and Construction Engineering Services
AGENDA TITLE
Approve Appropriation Adjustments and the Second Amendment to the Agreement with Butier Engineering, Inc. to Increase the Agreement Amount by $376,000, for a Total Amount not to Exceed $1,612,924, for Construction Engineering and Inspection Services for the South Main Corridor Improvements Project (Project Nos. 17-9001, 20-6958, 21- 6461) (General Fund)
RECOMMENDED ACTION
1. Approve an appropriation adjustment to recognize $291,000 from prior year fund balance in the Water Fund, Public Works Water Revenue, Prior Year Carryforward and appropriate the same amount to the Acquisition & Construction, Water Utility Capital Projects, Water Capital Project expenditure account. (Requires five affirmative votes)
2. Approve an appropriation adjustment to re-appropriate FY 2021-22 general fund monies in the amount of $1,000,000 in the Public Works Revenues, Prior Year Carry Forward revenue account, and appropriate the same amount to the PWA Service Enhancements, Improvements Other Than Building expenditure account for the South Main Corridor Improvements Project (No. 17-9001). (Requires five affirmative votes)
3. Authorize budget reallocation of $130,144.72 in unspent HUTA 2103 Gas Tax funds to the Main Street Rehabilitation from Warner Avenue to Edinger Avenue (Project No. 20-6958) from Gas Tax Local Street Improvements Project (No. 20-6956).
4. Authorize the City Manager to execute the second amendment to the agreement with Butier Engineering, Inc., for construction engineering and inspection services, to increase the agreement amount by $376,000, subject to non-substantive changes approved by the City Manager and the City Attorney.
5. Approve an amendment to the Project Cost Analysis in the amount of $ 1,421,144.72 for $130,144.72 in additional contingency funds, $291,000 in additional contract administration, inspection and testing, and $1,000,000 for public art related expenses.
The new estimated total construction delivery cost is $23,005,389.72, subject to nonsubstantive changes approved by the City Manager and City Attorney.
City Council 23 – 1 7/19/2022
South Main Corridor Appropriation Adjustments and Agreement Amendment July 19, 2022
6. Approve an amendment to the Fiscal Year 2022-23 Capital Improvement Program to include $291,000 in construction funds for South Main Street Water Improvements Project (Project No. 21-6461).
7. Approve an amendment to the Fiscal Year 2022-23 Capital Improvement Program to include $130,144.72 in construction funds for Main Street Rehabilitation from Warner Avenue to Edinger Avenue (Project No. 20-6958).
8. Approve an amendment to the Fiscal Year 2022-23 Capital Improvement Program to include $1,000,000 in construction funds for South Main Street Corridor Improvement (Project No. 17-9001).
DISCUSSION
On January 19, 2021, the City Council awarded a construction contract to C.S. Legacy Construction for the South Main Street Corridor Improvements (Exhibit 1). The project’s scope of work includes monument signs, enhanced lighting, hardscaping, landscaping, irrigation, traffic signals, signing, striping, street pavement rehabilitation, sewer main replacement, and water main repair over a 2.5-mile stretch of Main Street from First Street to Dyer Road.
On September 21, 2021, the City Council approved appropriation adjustments and amendments to increase project contingencies and construction funding due to unforeseen utility conflicts. As a result of the increased scope of work associated with the utility issues, the project schedule has been extended by three months, requiring additional construction engineering activity. Staff recommends adding $291,000 in Water Utility Capital funding to cover increased construction engineering costs (Exhibit 2).
In addition, the construction team was able to take advantage of favorable unit pricing and increase the amount of sidewalk, and curb and gutter replaced by the project. In order to account for the additional improvements, $130,144.72 in Gas Tax funding will be added to the project contingencies (Exhibit 2) through the reallocation of unspent project funds from the FY 2019-20 Gas Tax Local Street Improvement Project (No. 20-6956).
In recent months, the desire for public art installations to reflect the history of South Main Street has grown within the community. Therefore, the Public Works Agency is partnering with the Community Development Agency and the Arts and Culture Commission to integrate public art along the South Main Street Corridor. Art will range from inspiring poems etched into the sidewalk, to art on cross walks, and artwork to be placed in bus shelters.
The City of Santa Ana’s Community Development Agency issued a Call for Public Art Proposals to artists or art teams with connections or ties to Santa Ana for original designs which will be embedded into the project along South Main Street between First Street and Warner Avenue. On December 21, 2021, Council allocated $1,000,000 in General Fund City Council 23 – 2 7/19/2022
South Main Corridor Appropriation Adjustments and Agreement Amendment July 19, 2022
monies for PWA Service Enhancement (South Main Corridor Public Art) in the First Quarter Budget Update. Staff recommends adding the $624,000 from the General Fund allocation to the South Main Corridor Improvements Project (No. 17-9001). The increased funding will allow for the implementation of the art, continued oversight and consistency in delivering the project (Exhibit 2).
On January 19, 2021, the City Council also authorized the City Manager to execute an agreement with Butier Engineering, Inc., to provide construction engineering services for the South Main Corridor Improvement Project. On September 21, 2021, staff returned to City Council to amend the agreement by increasing compensation by $300,000, due to the increased project scope to address the utilities issues. Now, with the three-month project extension and the added art scope, the funds approved in the first amendment will not be sufficient to complete the project.
Staff requests approval of an amendment to the agreement with Butier Engineering, Inc., to increase the agreement amount by an additional $376,000, for a total of $1,612,924 for construction engineering services (Exhibit 3). This funding will come from the remainder of the $1,000,000 General Fund allocation to the South Main Corridor Improvements Project (No. 17-9001). The increased agreement capacity will allow for continued oversight and consistency in delivering the project, including managing the art initiative (Exhibit 4).
ENVIRONMENTAL IMPACT
In accordance with the California Environmental Quality Act, the recommended actions are exempt from further review. Categorical Exemption Environmental Review Nos. ER2020-103, ER-2020-105, ER-2020-109, and ER-2020-110 were filed for the project.
FISCAL IMPACT
Approval of the requested Appropriation Adjustments will provide the following funding:
1. Recognize $291,000 from prior year fund balance in the Water Fund, Public Works Water Revenue, Prior Year Carryforward revenue account (No. 06017002-50001) and appropriate the same amount to the Acquisition & Construction, Water Utility Capital Projects, Water Capital Project expenditure account (No. 06617647-66301).
2. Re-appropriate FY 2021-22 general fund monies in the amount of $1,000,000 in the Public Works Revenues, Prior Year Carry Forward revenue account (No. 01117002- 50001) and appropriate the same amount to the PWA Service Enhancements, Improvements Other Than Building expenditure account (No. 01117017-66220), for the South Main Corridor Improvements Project (No. 17-9001).
Approval of the request to reallocate funds will provide funding in the amount of $130,144.72 in unspent HUTA 2103 Gas Tax.
City Council 23 – 3 7/19/2022
South Main Corridor Appropriation Adjustments and Agreement Amendment July 19, 2022
All funds are available for expenditure in Fiscal Year 2022-23; however, any remaining balances not expended at the end of the fiscal year will be carried forward into FY 2023- 24 for expenditure.
The following table summarizes the $1,421,144.72 that will be made available by this Council action to fund the additional construction costs:
Fiscal
Year
Accounting Unit –
Account No.
(Project No.)
Fund
Description
Accounting Unit –
Account No.
Description
Amount
APPROPRIATION ADJUSTMENTS
2022-23 06617647-66301
( Proj. 21-6461) Water
Water Utility Capital
Projects,
Water Capital
Project
$291,000
2022-23 01117017-66220
(Proj. 17-9001) General Fund
PWA Service
Enhancement,
Improvements
Other Than
Building
$1,000,000
REALLOCATION OF FUNDS
2022-23
05917663-66220
(From Proj. 20-6956
To Proj. 20-6958)
Select Street
Construction
Gas Tax HUTA
2103,
Improvements
Other
Than Building
$130,144.72
Total: $1,421,144.72
EXHIBIT(S)
1. Location Map
2. Amendments to Fiscal Year 2022-23 CIP
3. Amendment to Agreement with Butier Engineering
4. Revised Cost Analysis
Submitted By: Nabil Saba, P.E., Executive Director – Public Works Agency Approved By: Kristine Ridge, City Manager
City Council 23 – 4 7/19/2022
PWA
SANTA ANA
PUBLIC WORKS AGENCY
Project No. 17-9001,18-6911, 20-6958, 21-6451, 21-6461 & 19-6940
South Main Street Corridor Improvements
EXHIBIT 1
City Council 23 – 5 7/19/2022
CITY OF SANTA ANA FY 22/23CIP
CAPITAL IMPROVEMENT PROJECT WORKSHEET
PROJECT DESCRIPTION:
This project will replace aging water distribution pipelines and related appurtenances including fire hydrants and valves along South Main St from 1st St to Warner Ave.
PROJECT NEED:
Replacement of obsolete water mains to ensure system reliability and to protect water quality.
PROJECT TITLE:
South Main Street Water Main
Improvements
PROJECT CATEGORY:
Utility/Drainage/Lighting
Improvements
Water Improvements
LOCATION MAP
AGENCY: DIVISION: CONTACT: DATE:
Public Works Water Resources Armando Fernandez, Senior Civil Engineer 21-Jun-2022 PROJECT COSTS FY 22/23 FY 23/24 FY 24/25 FY 25/26 FY 26/27 FY 27/28 FY 28/29 Construction 291,000 - - - - - -
TOTAL 291,000 - - - - - -
SOURCE OF FUNDS FY 22/23 FY 23/24 FY 24/25 FY 25/26 FY 26/27 FY 27/28 FY 28/29 WATER CAPITAL 291,000 - - - - - -
TOTAL 291,000 - - - - - -
City Council 23 – 6 7/19/2022
CITY OF SANTA ANA FY 22/23CIP
CAPITAL IMPROVEMENT PROJECT WORKSHEET
PROJECT DESCRIPTION:
Reconstruction/resurfacing of existing pavement and
replacement/installation of missing or damaged, curbs, gutters, sidewalks, driveway approaches, and wheelchair ramps within this segment of roadway.
PROJECT NEED:
The City's Pavement Management Program (PMP) has been
developed to prioritize and recommend the most cost-effective roadway repairs, and maximize the return from available funding for street pavement. This segment of Main Street pavement rehabilitation is identified as a high priority in the PMP.
PROJECT TITLE:
Main Street Rehabilitation: Warner
to Edinger
PROJECT CATEGORY:
Street Improvements
Arterial Street Rehabilitation
LOCATION MAP
AGENCY: DIVISION: CONTACT: DATE:
Public Works Design Engineering Jason Gabriel, Principal Civil Engineer 21-Jun-2022 PROJECT COSTS FY 22/23 FY 23/24 FY 24/25 FY 25/26 FY 26/27 FY 27/28 FY 28/29 Construction 130,145 - - - - - -
TOTAL 130,145 - - - - - -
SOURCE OF FUNDS FY 22/23 FY 23/24 FY 24/25 FY 25/26 FY 26/27 FY 27/28 FY 28/29 GAS TAX 130,145 - - - - - -
RMRA SB1 - - - - - - -
TOTAL 130,145 - - - - - -
City Council 23 – 7 7/19/2022
CITY OF SANTA ANA FY 21/22CIP
CAPITAL IMPROVEMENT PROJECT WORKSHEET
PROJECT DESCRIPTION:
The proposed improvements throughout the entire corridor consists of delineated parking spaces and tree planters, new bus shelters, ADA curb ramps, Edwardian style street lighting, and pavement rehabilitation.
PROJECT NEED:
The project contains a focus area in the North from 1st Street to Chestnut Avenue and in the South from Stanford Street to St Andrew Place. The two Focus areas improvements include sidewalk extensions (“bulb-outs”), enhanced crosswalks, delineated parking spaces, street trees and landscaping, concrete intersections, sidewalk furniture, monument signage, and decorative string lighting. The project also includes Sewer and Water line improvements.
PROJECT TITLE:
South Main Street Corridor
Improvements
PROJECT CATEGORY:
Arterial Improvements
Arterial Street Rehabilitation
LOCATION MAP
AGENCY: DIVISION: CONTACT: DATE:
Public Works CIP Engineering Sean Thomas, Senior Civil Engineer 23-Aug-2021 PROJECT COSTS FY 21/22 FY 22/23 FY 23/24 FY 24/25 FY 25/26 FY 26/27 FY 27/28 Construction 1,500,000 - - - - - -
TOTAL 1,500,000 - - - - - -
SOURCE OF FUNDS FY 21/22 FY 22/23 FY 23/24 FY 24/25 FY 25/26 FY 26/27 FY 27/28 GAS TAX 1,500,000 - - - - - -
TOTAL 1,500,000 - - - - - -
City Council 23 – 8 7/19/2022
City Council 23 – 9 7/19/2022
City Council 23 – 10 7/19/2022
Current Cost Analysis Amendment Amount Updated Cost Analysis Construction Contract 12,759,695.00 $ 12,759,695.00 $
Contract Administration 1,087,191.00 $ 291,000.00 $ 1,378,191.00 $ Inspection and Testing 656,859.00 $ 656,859.00 $
Contingencies 7,080,500.00 $ 130,144.72 $ 7,210,644.72 $ Public Art - $ 624,000.00 $ 624,000.00 $
Public Art Construction Management - $ 376,000.00 $ 376,000.00 $ $ 1,421,144.72 21,584,245.00 $ 23,005,389.72 $
CONSTRUCTION OF PROJECT NOS. 17-9001, 18-6911, 20-6958, 21-6451, 21-6461, & 19-6940: SOUTH MAIN STREET CORRIDOR
IMPROVEMENTS
COST ANALYSIS
TOTAL ESTIMATED CONSTRUCTION COSTS
City Council 23 – 11 7/19/2022
Public Works Agency
www.santa-ana.org/pw
Item # 24
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
July 19, 2022
TOPIC: Real Property Sale
AGENDA TITLE
Adopt Resolution to Summarily Vacate a Portion of Santa Ana Boulevard, Authorize a Purchase and Sale Agreement and Approve an Appropriation Adjustment, in the amount of $130,000, for the Sale of City-owned Real Property Locate at 1247 W. Santa Ana Boulevard, to Rafael and Yolanda Ramos (Non-General Fund)
RECOMMENDED ACTION
1. Adopt a resolution to Summarily Vacate excess Santa Ana Boulevard right of way east of Bristol Street.
2. Authorize the City Manager to execute a purchase and sale agreement with Rafael and Yolanda Ramos for the sale of City-owned property located at 1247 W. Santa Ana Boulevard (APN 008-082-29), in the amount of $130,000, subject to non-substantive changes approved by the City Manager and City Attorney.
3. Approve an appropriation adjustment recognizing revenue in the amount of $130,000 in the Select Street Construction Fund, Sale of Land revenue account for Fiscal Year 2022-23 from the sale of City-owned property located at 1247 W. Santa Ana Boulevard (APN 008-082-29) and appropriating the same to the OCTA Bristol Street Corridor Improvements, Improvements Other Than Building expenditure account. (Requires five affirmative votes)
DISCUSSION
On June 13, 2022, the City of Santa Ana Planning Commission adopted a resolution approving to vacate a portion of public right-of-way on Santa Ana Boulevard. As presented, during the course of the Bristol Street Improvement Project, the Public Works Agency acquired properties along the Bristol Street corridor. The subject property at 1247 W. Santa Ana Boulevard (APN 008-082-29) (Exhibit 1) was purchased from Rafael and Yolanda Ramos as part of the Bristol Street Improvements from 2nd Street to Civic Center Drive using Orange County Transportation Authority (OCTA) funding appropriated for this project. The purchase price was based on appraised values prepared by a state-licensed appraiser. A portion of this property remains unused and unneeded following project construction, and has been held for purposes of exchange or sale.
City Council 24 – 1 7/19/2022
Purchase and Sale Agreement for 1247 W. Santa Ana Blvd.
July 19, 2022
The Ramos party has expressed interest in re-acquiring the subject remnant property in order to regain the Ramos Tire parking lot and upgrade their overall site (Exhibit 2). Selling the parcel to another party is challenging due to its small size and the lack of independent utilities. As such, staff recommends direct negotiations with Rafael and Yolanda Ramos to facilitate a sale of this property that will be mutually beneficial to all parties. After discussing with both adjacent property owners, Ramos was the only party that provided an offer to purchase the vacant lot within the requested timeframe.
The property includes a portion of an area being vacated. This area was granted to the City prior to the Bristol Street Improvement project for public street widening and improvements, however is no longer required. The area is approximately 456 square feet, situated behind the existing public sidewalk (Exhibit 3). At this segment Santa Ana Boulevard is 80 feet wide, which is consistent with the proposed General Plan Mobility Element.
This abandonment is being processed as a summary vacation given the area is not required for public street purposes (Exhibit 4). City staff recommends the action because the excess area offers no present of prospective use to the City. There are no visible utilities in the area, however an easement for existing utilities will be reserved in the resolution of vacation.
This property is being disposed of in accordance with the California Surplus Lands Act, Government Code §54220 et seq. On April 21, 2020, the Santa Ana City Council adopted Resolution No. 2020-032 declaring various Properties as surplus land and directed the City Manager to comply with the requirements of Government Code Section 54220 for the sale of surplus land. On April 21, 2020, the City released Notices of Availabilities (“NOA”) of surplus properties for a period of sixty (60) days. The NOA’s were sent out to all “local public entities,” as defined in Health and Safety Code Section 50079, within whose jurisdiction the surplus land is located and to “Housing Sponsors” that have notified the California Department of Housing and Community Development (“HCD”) of their interest in surplus land. The NOA’s were also sent to local parks agencies and school districts.
The subject property is among those the City declared surplus for which no responses were received from entities receiving the notices of availability; or for which negotiations ended. With no other proposals, the City has completed all Surplus Land Act requirements for disposition. The proceeds from the sale of this property are considered restricted funds and will be used to reimburse the granting agencies, and/or to fund further transportation improvements within the same or similar project.
General Plan Consistency
Before the City can dispose of or acquire any real property, the Planning Commission reviews the proposed transaction for conformity with the General Plan as set forth in California Government Code Section 65402 (a):
City Council 24 – 2 7/19/2022
Purchase and Sale Agreement for 1247 W. Santa Ana Blvd.
July 19, 2022
“If a general plan or part thereof has been adopted, no real property shall be acquired by dedication or otherwise for street, square, park or other public purposes, and no real property shall be disposed of, no street shall be vacated or abandoned, and no public building or structure shall be constructed or authorized, if adopted general plan or part thereof applies thereto, until the location, or abandonment, or such public building or structure have been submitted to and reported upon by the planning agency as to conformity with said adopted general plan or part thereof…” To determine whether the land disposition conforms to the General Plan, the Planning Commission evaluate whether the disposition carries out General Plan policies or is contrary to or would impede the implementation of General Plan policies.
The sale of the surplus property located at 1247 W. Santa Ana Blvd., is consistent with the City’s General plan and the project advances the following goals and policies of the General Plan:
Economic Prosperity Goal EP-1: Job Creation and Retention – Foster a dynamic local economy that provides and creates employment opportunities for all residents in the City.
o Policy EP-1.9 Avoid Conflict of Uses – Avoid potential land use conflicts by prohibiting the location of sensitive receptors and noxious land uses in close proximity. The disposition of surplus land will allow the existing business to expand their operations by providing adequate parking to accommodate the existing business and will be consistent with the uses allowed under C5 Zone (Arterial Commercial) and consistent with the General Plan Land Use designation UN-30.
Economic Prosperity Goal EP-3: Business Friendly Environment – Promote a business friendly environment where business thrive and build on Santa Ana’s strengths and opportunities.
Land Use Element Goal LU-2: Land Use Needs – Provide a balance of land uses that meet Santa Ana’s diverse needs.
o Policy LU-2.2 Capture Local Spending. Encourage a range of commercial uses to capture a greater share of local spending, and offer a range of employment opportunities.
ENVIRONMENTAL IMPACT
In accordance with the California Environmental Quality Act, the proposed abandonment is exempt from further review per section 15305. Categorical Exemption ER No. 2022- 023 will be filed for this abandonment.
City Council 24 – 3 7/19/2022
Purchase and Sale Agreement for 1247 W. Santa Ana Blvd.
July 19, 2022
FISCAL IMPACT
Approval of the Appropriation Adjustment will recognize the receipt of $130,000 into the Select Street Construction Fund, Sale of Land revenue account (No. 05917002-57071) and appropriate the same into the OCTA Bristol Street Corridor Improvements Fund, Improvements Other Than Building expenditure account (No. 05917661-66220). These funds will be available for expenditure on the Bristol Street Corridor Improvement Projects.
The table below summarizes the sales price and Bristol Project revenue.
Parcel ID Sale Price Bristol Improvement Fund
(Account No. 05917661-66220)
C-11 $130,000 $130,000
Total $130,000 $130,000
EXHIBIT(S)
1. Location Map – C11
2. Purchase and Sale Agreement – Rafael and Yolanda Ramos
3. Vacation Area
4. Abandonment Resolution
Submitted By: Nabil Saba, P.E., Executive Director – Public Works Agency Approved By: Kristine Ridge, City Manager
City Council 24 – 4 7/19/2022
B
RIS
TO
L
S
TRE
E
T
5TH STREET
SANTA ANA BOULEVARD
008-082-29
1247
W .S
AN
TA
AN
A
B
LVD
LEGEND:
PARCEL
COMBINED
PROPERTY LINE
EXISTING
PARCEL C11
(SUBSTANDARD)
5,636 SF
ZONING APPROX. AREA
COMMERCIAL
N.T.S.
City Council 24 – 5 7/19/2022
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (“Agreement”) is made and entered into this ____ day of _____________, 2022 (“Effective Date”), by and between Rafael and Yolanda Ramos (“Buyer”), and the CITY OF SANTA ANA, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (“Seller” or “City”). As used herein, Buyer and Seller may be referred to collectively as the “Parties,” and each individually as a “Party.”
RECITALS
A. City is the fee simple owner of that certain real property consisting of approximately 5,690 square feet, located at 1247 W. Santa Ana Boulevard (APN No. 008-082-29) Santa Ana, California, legally described in Exhibit “A” attached to this Agreement and incorporated into this Agreement in its entirety by this reference (the “Property”).
B. On March 5, 2019, the Property was approved by the City for disposition through direct negotiations, without competitive bidding, in accordance with Santa Ana Municipal Code section 2-706.1.
C. On April 21, 2020, the Santa Ana City Council adopted Resolution No. 2020-032 declaring the Property as surplus land and directing the City Manager to comply with the requirements of California Government Code Section 54220 et seq. (“Surplus Land Act”) for the disposition of the Property.
D. On April 27, 2020, the City released a Notice of Availability (“NOA”) of surplus property for the Property for a period of sixty days. This NOA was sent out to all “ local public entities,” as defined in Health and Safety Code section 50079, within whose jurisdiction the surplus land is located, and to “Housing Sponsors” that have notified the California Department of Housing and Community Development (“HCD”) of their interest in surplus land. The NOA was also sent to local parks agencies and school districts.
E. The Property was among those for which either no responses were received by entities receiving the notices of availability or for which responses were received and good faith negotiations ended after a period of not less than 90 days without agreement to price and terms.
F. City staff proceeded with direct negotiations to sell the land to Buyer, who is an adjacent property owner.
G. City now desires to sell the Property to Buyer, and Buyer desires to purchase the Property from City, in accordance with the provisions of this Agreement.
AGREEMENT
NOW THEREFORE, incorporating the foregoing Recitals and in consideration of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
City Council 24 – 6 7/19/2022
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1. Incorporation of Recitals. The recitals of fact set forth above are true and correct and are incorporated into this Agreement in their entirety by this reference.
2. Purchase and Sale; Purchase Price.
2.1 Purchase and Sale. Seller shall sell the Property to Buyer, and Buyer shall purchase the Property from Seller, subject to the terms and conditions set forth in this Agreement.
2.2 Purchase Price. The purchase price of the Property shall be One Hundred Thirty Thousand Dollars ($130,000.00 ).
3. Escrow.
3.1 Escrow Instructions. Within seven (7) days following the execution of this Agreement by the Parties, Buyer will open an escrow (“Escrow”) with Commonwealth Land Title Company, 4100 Newport Place Drive, Suite 120, Newport Beach, CA 92660, Attn: Grace Kim (“Escrow Holder”) for the purchase and sale of the Property. The “Opening of Escrow” shall mean the date on which a fully executed copy of this Agreement has been delivered to Escrow Holder. Escrow Holder shall confirm the Opening of Escrow to the Parties in writing. This Agreement constitutes joint escrow instructions to Escrow Holder. The Parties agree to execute such additional instructions consistent with the provisions of this Agreement, which may be required by Escrow Holder. As between the Parties, Buyer and Seller agree that, if there is any conflict between the terms of this Agreement and any Escrow Instructions required by Escrow Holder, the terms of this Agreement shall control. Buyer and Seller shall each furnish Escrow Holder with their respective Federal Tax Identification Numbers and such other information as is reasonably required by Escrow Holder.
3.2 Payment of Purchase Price. The Purchase Price for the Property shall be payable at Closing. If Seller has deposited into Escrow all documents and amounts required of Seller to close Escrow, including without limitation, the “Grant Deed” (as defined in Section 3.10 below), and complied with all of Seller’s other obligations under this Agreement, then on or before the “Closing Date” (as defined Section 3.3 below) so as not to delay the “Close of Escrow” (as defined Section 3.3 below), Buyer shall deposit into Escrow the following in Acceptable Funds: (a) the Purchase Price and (b) the Escrow closing costs pursuant to the preliminary Escrow Closing statement furnished by Escrow Holder as provided below.
3.3 Close of Escrow. Subject to Sections 3.3.1 and 3.3.2, Escrow for the sale of the Property shall close on a date that is no later than thirty (30) days after the opening of Escrow (“Closing Date”), subject to reasonable extension as necessary in order to satisfy the conditions precedent and other requirements for the Close of Escrow. As used in this Agreement, “Close of Escrow” shall mean the date on-which the “Grant Deed” conveying fee title to the Property to Buyer is recorded in the Orange County Recorder’s Office.
3.3.1 Conditions Precedent to Buyer Obligation to
Close. Buyer’s obligation to close Escrow and purchase the Property is expressly conditioned on the satisfaction of the conditions listed in this Section 3.3.1. If any such condition is not satisfied or waived by Buyer at or prior to the Close of Escrow, for any reason other than a default by Buyer, Buyer may, in its sole discretion and without limiting any of Buyer’s legal remedies or City Council 24 – 7 7/19/2022
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remedies under this Agreement, terminate this Agreement by written notice to Seller.
(1) Title Policy. Escrow Holder has issued or is irrevocably committed to issue to Buyer the “Title Policy” (as defined in Section 3.6 below) showing fee title vested in Buyer subject only to “Permitted Exceptions” (as defined in Section 3.5 below). (2) Representations and Warranties. Each of Seller’s
representations and warranties in this Agreement are materially true and accurate as of the Close of Escrow.
(3) Seller Obligations. Seller is not in material default under this Agreement and each material obligation of Seller to be performed prior to the Close of Escrow, has been performed as required, including, without limitation the delivery of all documents required of Seller under this Agreement.
(4) Possession. Seller is able, at the Close of Escrow to deliver exclusive possession of the Property to Buyer in accordance with this Agreement and does so.
3.3.2 Conditions Precedent to Seller Obligation to
Close. Seller’s obligation to close Escrow and sell the Property is expressly conditioned upon the satisfaction of the conditions listed in this Section 3.3.2. If any such condition is not satisfied or waived by Seller prior to the Close of Escrow for any reason other than a default by Seller, Seller may, in its sole discretion and without limiting any of Seller’s legal remedies or remedies under this Agreement, terminate this Agreement by written notice to Buyer. (1) Representations and Warranties. Each of Buyer’s
representations and warranties set forth in this Agreement are materially true and accurate as of the Close of Escrow.
(2) Buyer’s Obligations. Buyer is not in material default under this Agreement, and each material obligation of Buyer to be performed prior to the Close of Escrow hereunder has been performed as required.
3.4 Escrow Cancellation.
3.4.1 Charges.
(1) Seller’s Default. If Escrow fails to close due to Seller’s default, Seller shall pay all Escrow cancellation charges. “Escrow cancellation charges” means all fees, charges and expenses charged or passed on to the Parties by Escrow Holder, including all title expenses. Buyer shall be entitled to terminate this Agreement or bring an action against Seller for specific performance as its sole and exclusive remedies. (2) Buyer’s Default. If Escrow fails to close due to Buyer’s default, Buyer shall pay all Escrow cancellation charges and Seller shall be entitled to terminate this Agreement as its sole and exclusive remedy.
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(3) No Default. If Escrow fails to close and this Agreement is terminated for any reason other than a default by one of the Parties, Buyer and Seller shall evenly split any Escrow cancellation charges.
3.5 Permitted Exceptions to Title. As soon reasonably possible after the Opening of Escrow, Escrow Holder shall cause Commonwealth Land Title Company, in its capacity as title insurer (“Title Company”), to deliver to Buyer and Seller a current preliminary title report (“Title Report”) together with legible copies of all underlying documents referenced therein (together with the Title Report, the “Title Documents”). The term “Permitted Exceptions” as used in this Agreement shall mean all of the following: (a) the Grant Deed; (b) the Affordable Housing Covenant; (c) non-delinquent real property taxes and assessments; (d) items and exceptions created by or with the written consent of Buyer, including documents to be recorded pursuant to this Agreement, and (e) the title exceptions shown on the Title Report but excluding any (i) “Disapproved Exceptions” as defined below that Seller, in its sole discretion, agrees to remove prior to the Close of Escrow as provided below and (ii) all monetary liens and monetary encumbrances on the Property, other than non-delinquent real property taxes and assessments which will be removed (meaning removal from title and not the issuance of an endorsement in connection therewith by the Title Company) from title by Seller at its sole cost and expense prior to the Close of Escrow. If Buyer objects to any title exceptions in its sole and absolute discretion (“Disapproved Exceptions”), Buyer shall deliver written notice (“Objection Notice”) of same to Seller within ten (10) business days of delivery of the initial Title Report to Buyer. Seller shall act in good faith and reasonably to resolve any title exception in the Objection Notice. If Buyer fails to deliver an Objection Notice but delivers a “Notice of Approval”, Buyer shall be deemed to have approved title to the Property subject to the Permitted Exceptions. If Buyer delivers an Objection Notice regarding a title exception and Seller, by delivery of written notice to Buyer within five (5) business days following receipt of the Objection Notice elects not to remove a material Disapproved Exception (Seller’s failure to respond to a Buyer Objection Notice shall be deemed such an election), Buyer’s sole remedies shall be with respect to the delivery of a Notice of Approval or delivery or deemed delivery of a Notice of Termination.
3.6 Title Insurance. Seller shall cause the Title Company to commit to issue to Buyer at the Close of Escrow a standard coverage ALTA Owner’s policy of title insurance with mechanics lien endorsement (Seller shall provide, any indemnity or other agreement required by the Title Company as a condition to the issuance of the mechanics lien endorsement) (“Title Policy”) insuring fee title to the Property vested in Buyer subject only to the Permitted Exceptions, with coverage in an amount equal to the Purchase Price. If Buyer requires an extended coverage ALTA Owners policy of title insurance, Buyer shall pay the difference in cost between the standard and extended coverage and the cost of any endorsements (other than a mechanics lien endorsement issued in connection with the standard coverage Title Policy which shall be at the cost of Seller) (“Buyer Title Costs”). Seller shall only be responsible for that portion of the cost of the Title Policy equal to the cost of a standard coverage title policy (“Seller Title Costs”).
3.7 Possession. Seller shall deliver possession of the Property to Buyer at the Close of Escrow subject only to the Permitted Exceptions and free of any tenancies and/or third patty claims of use or ownership.
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3.8 Taxes, Assessments and Prorations.
3.8.1 Taxes. Only to the extent the Seller pays any
property taxes or assessments on the Property, all current general and special taxes and assessments on the Property shall be prorated by Escrow Holder based upon the latest available information as shown in the tax statements provided to Escrow Holder by Seller, using customary escrow procedures in Orange County.
Seller shall provide Buyer with written evidence of the payment or satisfaction of such taxes. Should the Property be part of a larger tax parcel (“Assessment Parcel”) which as of the Close of Escrow remains unsegregated on the County Tax Assessor’s Roll for the ensuing fiscal year, Escrow Holder shall charge Buyer and credit Seller for taxes and assessments allocated to the Property (based on unimproved value) based on the percentage of the total acreage of the Assessment Parcel located on the Property, which acreage figures for allocation purposes shall be fairly and equitably determined and supplied to Escrow Holder by Buyer and Seller. Buyer and Seller shall cooperate in good faith to cause the Property to be separately assessed and segregated in Buyer’s name on the current tax roll. Any real property taxes or assessments levied under the Supplemental Tax Roll as a result of the sale of the Property to Buyer, shall be the responsibility of Buyer. Any real property taxes or assessments levied under the Supplemental Tax Roll as a result of transfers, improvements or other occurrences before the Close of Escrow shall be the responsibility of Seller.
3.8.2 General. All pro rations provided for herein shall be on an “actual day” basis and a three hundred sixty-five (365) day year. The provisions of this Section shall survive Close of Escrow. If either Party fails to pay its pro rata share of taxes or other expenses by the times herein provided, interest shall accrue on all unpaid amounts from when owing until paid at the maximum rate allowed by law. Any errors or omissions made in calculating adjustments and prorations shall be corrected promptly upon the discovery thereof. If any estimations are made at the Close of Escrow regarding adjustments or prorations, the Parties shall make the appropriate collection promptly when accurate information becomes available. Any corrected adjustment or proration shall be paid to the Party entitled thereto within thirty (30) days after written request therefor and if not so paid interest shall accrue and be payable on same at the maximum rate allowed by law.
3.9 Closing Costs. Buyer shall pay the cost of the Title Policy, the Escrow Fees and any applicable documentary transfer fees (considering Seller is a City) and recording fees, and all other costs and expenses incurred related to the purchase of the Property by Buyer. If required by Buyer’s lender, Buyer shall also pay for the appraisal cost of the Property (collectively, “Closing Costs”). As soon as reasonably possible following the Close of Escrow, Escrow Holder shall deliver a copy of the final Escrow closing statement to Buyer and Seller.
3.10 Grant Deed. The transfer of ownership of the Property shall be documented through a Grant Deed in the form attached hereto as Exhibit “B” and incorporated herein by reference, conveying the Property to Buyer (“Grant Deed”).
City Council 24 – 10 7/19/2022
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3.10.1 Affordable Housing Covenant in the Event of
Residential Development. In accordance with California Government Code Section 54233, if 10 or more residential units are developed on the Property, not less than 15 percent of the total number of residential units developed on the Property shall be sold or rented at affordable housing cost, as defined in Section 50052.5 of the Health and Safety Code, or affordable rent, as defined in Section 50053 of the Health and Safety Code, to lower income households, as defined in Section 50079.5 of the Health and Safety Code. Rental units shall remain affordable to, and occupied by, lower income households for a period of at least 55 years for rental housing and 45 years for ownership housing. The initial occupants of all ownership units shall be lower income households, and the units shall be subject to an equity sharing agreement consistent with the provisions of paragraph (2) of subdivision (c) of Section 65915 of the Government Code.
Buyer expressly agrees and consents that the requirements of this section shall be contained in a covenant or restriction recorded against the Property prior to land use entitlement of the project, and the covenant or restriction shall run with the land and shall be enforceable, against any owner who violates a covenant or restriction and each successor in interest who continues the violation, by any of the entities described in subdivisions (a) to (f), inclusive, of Section 54222.5 of the Government Code.
3.11 Recordation and Delivery of Documents. No later than the business day immediately prior to the Closing Date, Buyer and Seller, as applicable, will deposit into Escrow the following documents (with the documents that are to be recorded in the following order and delivered as provided below):
3.11.1 Grant Deed. One (1) fully executed and
acknowledged copy of the Grant Deed conveying the Property to Buyer.
Conformed copies of the recorded Grant Deed shall be returned to Buyer and Seller as soon as possible.
3.11.2 Withholding Exemption Certificates. One
(1) completed and executed copy of the following: Non-foreign Transferor Declaration; Preliminary Change in Ownership Report, Internal Revenue Service Form 1099-S, and California Franchise Tax Board Form 593 and any other applicable state tax withholding forms, as applicable.
3.11.3 Disbursement of Closing Documents. As soon as
reasonably possible following the Close of Escrow, Escrow Holder shall deliver copies of all closing documents, including, without limitation, those listed above, the Title Policy, any additional escrow instructions and the final Escrow closing statement, to Seller’s counsel and Buyer’s counsel.
3.12 Seller’s Proceeds. At the Close of Escrow, subject to Section 3.13 below, Escrow Holder is directed to wire funds representing Seller’s cash proceeds through Escrow to Seller’ s account as directed in separate written instructions to be provided by Seller.
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3.13 Cal-FIRPTA Withholding. Unless this transaction is exempt under California Revenue and Taxation Code Sections 18805 and 26131, Escrow Holder shall be the “withholding agent” and withhold from proceeds due Seller any amounts required under the above code sections to be withheld by Buyer and pay same to the California Franchise Tax Board or Internal Revenue Service in accordance with applicable law.
3.14 Additional Documents. Seller and Buyer shall execute and deliver to Escrow any other documents reasonably required by Escrow Holder including, without limitation, Seller’ s affidavits or statements regarding mechanics liens and /or tenants or parties in possession.
3.15 Termination of Property Contracts. Seller shall terminate any service contracts or similar agreement relating to the Property that the Buyer does not expressly elect in writing to assume which termination shall be effective as of the Close of Escrow.
4. Real Estate Brokerage Commission. Buyer and Seller each represent and warrant to each other that they have not incurred any obligation to any broker, agent or finder in connection with the Property, and that they have not incurred any obligation to pay any other real estate brokerage or other commission or fee in connection with the conveyance of the Property to Buyer.
Buyer and Seller agree to indemnify, defend and hold each other free and harmless from and against all costs and liabilities, including without limitation reasonable attorneys’ fees and the costs and expenses of litigation, for causes of action or proceedings in any way related to or resulting from a breach of the foregoing representation and warranty or arising out of any action or proceedings which may be instituted by any broker, agent or finder, licensed or otherwise, claiming through, under or by reason of the conduct of the indemnifying Party, respectively, in connection with this transaction. Notwithstanding any provision in this Agreement, Seller shall not be obligated or otherwise responsible to pay any real estate brokerage or other commission or fee in connection with the conveyance of the Property to Buyer.
5. Inspections; AS-IS Condition of Property
5.1 Waiver of Inspections. Buyer and Seller agree that Buyer unequivocally waives any right to conduct independent investigations concerning (i) Buyer’s proposed use, sale, development or suitability for development of the Property; (ii) the condition and all other attributes of the Property, including, without limitation all improvements located thereon; (iii) applicable laws, statutes, rules, regulations, ordinances, limitations, restrictions or requirements concerning the use, density, location or suitability of the Property or any existing or proposed development or condition thereof, including but not limited to zoning, subdivision and other regulations; (iv) the necessity or availability of any specific plan or general amendments, rezoning, zone variances, conditional use permits, building permits, environmental impact reports, subdivision maps, public reports issued by the California Bureau of Real Estate and all other governmental permits, approvals or acts; (v) the necessity and existence of all dedications, fees, charges, costs or assessments which may be imposed by any Governmental Authority in connection with the proposed development of the Property; (vi) the value of the Property; (vii) the availability or adequacy of access to the Property, or of water, sewage, gas, electrical or other utilities serving the Property and (viii) the presence or adequacy of infrastructure or other improvements on, near or concerning the Property.
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5.2 No Representations or Warranties. Seller makes no representation or warranty, express or implied, to the Buyer relating to the condition of the Property or suitability of the Property for any intended use or development by the Buyer.
5.3 Acceptance of Property “AS-IS.” Buyer shall accept all conditions of the Property, without any liability of the Seller whatsoever, in the Property's AS-IS, WHERE-IS, SUBJECT TO ALL
FAULTS CONDITION, WITHOUT WARRANTY AS TO QUALITY, CHARACTER, PERFORMANCE OR CONDITION, and with full knowledge of the physical condition of the Property, the nature of the Seller's interest in and use of the Property, all laws applicable to the Property and of any and all conditions, restrictions, encumbrances and all matters of record relating to the Property. The Property is being acquired by Buyer as a result of its own knowledge of the Property and not as a result of any representation(s) made by the Seller or any employee, official, consultant or agent of the Seller relating to the condition of the Property, unless such statement or representation is expressly and specifically set forth in this Agreement. Seller hereby expressly and specifically disclaims any express or implied warranties regarding the Property, unless expressly and specifically set forth in this Agreement.
6. Warranties.
6.1 Seller’s Warranties. In consideration of Buyer entering into this Agreement and as an inducement to Buyer to purchase the Property from Seller, Seller makes the following representations and warranties which shall be true and correct as of the Effective Date and the Close of Escrow and each of which is material and being relied upon by Buyer. For all purposes of this Agreement, including Seller’s representations and warranties contained herein, the phrase “to the best of Seller’s knowledge” shall mean the current actual knowledge of Seller. If prior to the Close of Escrow, Buyer has actual Knowledge that any representation or warranty of Seller is untrue, inaccurate or incomplete in any material respect (and without waiving any of Buyer’s rights or remedies hereunder at law or in equity with respect to any material untruth, incompleteness or inaccuracy existing on the Effective Date, that was known of or should have been known of by Seller), Buyer may give Seller written notice of same and Seller shall have seven (7) days from the date of receipt of Buyer’s notice (and the Closing Date shall be extended to permit the running of such seven (7) day period) (“Seller Cure Period”) to correct any factor or circumstance that makes such representation or warranty materially untrue or inaccurate to Buyer’s reasonable satisfaction. If Seller fails to make such correction within the Seller Cure Period, then Buyer by written notice to Seller within three (3) days after the expiration of the Seller Cure Period (and the Closing Date shall be extended to permit the running of such three (3) day period) shall be entitled (a) to terminate this Agreement, or (b) continue this Agreement in full force and effect with no change in terms, but without waiving any legal, equitable or other remedies it may have against Seller. The foregoing is not a waiver or release of any of Buyer’s rights or remedies for any material untruth, incompleteness or inaccuracy in a representation or warranty of Seller of which Buyer obtains knowledge after the Close of Escrow.
6.1.1 Authorization. Seller has full power and authority to enter into this Agreement and to perform all its obligations hereunder, and has taken all action required by law, its governing instruments or otherwise to authorize the execution, delivery and performance of this Agreement by Seller.
Each individual or entity who has executed this Agreement on behalf of Seller has the right, power, legal capacity and authority to execute, deliver and perform this Agreement on behalf of Seller.
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6.1.2 Conflicting Agreements. Neither the execution or
delivery of this Agreement, nor the consummation of the transaction contemplated herein, will conflict with, or result in a breach of, any contract, license or undertaking to which Seller is a party or by which Seller or any of the Property is bound, or constitute a default thereunder. In addition, with respect to any agreements that affect the Property, neither Seller nor any other party or parties to such agreements are in default thereunder nor are there any facts that currently exist which with the passage of time would result in any such default.
To the best of Seller’s knowledge, the Property is not subject to any prescriptive easements, claims of adverse possession, encroachments or similar rights or claims. The Property is not subject to any leases, options or other similar rights or claims in favor of any third parties. The Property is not subject to a Williamson Act contract or any similar agricultural agreement.
6.1.3 Proceedings. To the best of Seller’s knowledge,
no legal or administrative proceeding is pending or threatened against Seller or the Property nor are there any other facts or circumstances which would adversely affect (i) Seller’s right to convey title to the Property to Buyer as contemplated in this Agreement, or (ii) Buyer’s ability to own, develop and/or market the Property in the manner disclosed by Buyer to Seller. To the best of Seller’s knowledge, there are no condemnation or eminent domain proceedings pending or threatened with respect to the Property.
6.1.4 Binding Agreement. This Agreement constitutes
a legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms, except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the rights of contracting parties generally.
6.1.5 Violations of Law. On the Effective Date and
Close of Escrow neither this Agreement nor the Property shall be in violation of any law, ordinance, rule regulation, or administrative or judicial order.
6.1.6 Hazardous Materials. Seller has not stored or
released, caused to be stored or released or approved the storage or release on the Property, of any “hazardous materials” (as defined below). To the best of Seller’s knowledge, (a) no prior owner of the Property has stored or caused to be stored any hazardous materials on the Property; (b) no hazardous materials now exist in, on or under the Property in violation of any “environmental law” (as defined below); (c) there are no underground tanks on the Property nor have there ever been any underground storage tanks on the Property; (d) no use of or operations on the Property have occurred which use or operation has violated any applicable environmental law; and (e) the Property is not on any “Superfund” list under any applicable environmental law. As used herein, “environmental law” shall mean any and all present federal, state or local laws (whether common law, statute, rule, regulation or otherwise), permits, orders and any other requirements of Governmental Authorities relating to the environment City Council 24 – 14 7/19/2022
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to any “hazardous materials” (as defined below) (including without limitation the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. §§ 9601 et seq.) as amended from time to time and the applicable provisions of the California Health and Safety Code and California Water Code). As used herein, “hazardous materials” shall mean any (a) chemical, compound, material, mixture or substance that is now defined or listed in, or otherwise classified pursuant to any environmental law as a “hazardous substance,” “hazardous material,” “hazardous waste,” “extremely hazardous waste,” “infectious waste,” “toxic waste,” “toxic pollutant” or any other formulation intended to define, list or classify substances by reason of deleterious properties or effect and (b) petroleum, petroleum byproducts, natural gas, natural gas liquids, liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas in such synthetic gas), ash, municipal solid waste steam, drilling fluids, produced waters and other wastes associated with the exploration, development and production of crude oil, natural gas or geothermal resources.
6.1.7 No Assumed Obligations. There are no
obligations or responsibilities of Seller with respect to the Property or otherwise of any kind that are assumed by Buyer.
6.1.8 Endangered Species. To the best of Seller’s
knowledge, (a) there are no endangered or threatened species of animals, plants or insects on the Property, and (b) there are no environmental or biological characteristics of the Property or adjacent property, which under existing law will adversely affect Buyer’s ability to own, develop and/or market the Property or the cost thereof.
6.1.9 Ownership of Property. Seller is the sole and only party that owns or holds any interest in the Property.
6.1.10 Property Documents. To the best of Seller’s
knowledge, the Property Documents and all other documents and information provided by Seller or its agents or consultants to Buyer are complete, true and accurate and do not omit any material fact, and there are no other documents, materials, studies, surveys or other information in the possession or control of Seller that would have a material and adverse effect on Buyer’s ability to own, develop and/or market the Property.
6.1.11 Other Agreements. Except as set forth in the
Property Documents and this Agreement, Seller has not made any commitment or representation to or entered into any agreement of any kind with any government authority, or any adjoining or surrounding property owner, group or other third party, which would in any way be binding on Buyer or all or any portion of the Property or would interfere in any way with Buyer’s ability to own, develop, improve and/or market the Property, and will not make any such representations or warranties or enter into any such agreements which would City Council 24 – 15 7/19/2022
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affect the Property or any portion thereof prior to the Close of Escrow, without Buyer’s written consent.
6.1.12 Access. There is full and unobstructed direct
access to the Property from public streets, highways or roads that are adjacent to the Property.
6.1.13 Bankruptcy. No “Bankruptcy Event” (as
defined below) has occurred with respect to Seller nor any member or manager of Seller. There is not pending or threatened any case, proceeding or other action seeking reorganization, arrangement, adjustment, liquidation, dissolution or recomposition of Seller or any member or manager of Seller or seeking appointment of a receiver, trustee, custodian or similar official for Seller or any member or manager of Seller for all or any substantial part of its or their assets. “Bankruptcy Event” means (a) the making by a person of a general assignment for the benefit of such person’s creditors, (b) the admission in writing by a person of its inability to pay its or their debts as they mature, (c) an attachment, execution or other judicial seizure of any property interest which remains in effect, or (d) the failure to have taken or submission to any action indicating a general inability by a person to meet its financial obligations as they accrue.
6.1.14 Material Change. Seller shall promptly notify
Buyer if Seller obtains information that would make any of the representations or warranties contained herein materially inaccurate or misleading.
6.2 Buyer’s Warranties. In consideration of Seller entering into this Agreement and as an inducement to Seller to sell the Property to Buyer, Buyer makes the following representations and warranties which shall be true and correct as of the Effective Date and the Close of Escrow and each of which is material and being relied upon by Seller. For all purposes of this Agreement, including Buyer’s representations and warranties contained herein, the phrase “to the best of Buyer’s knowledge” shall mean the current actual knowledge of Buyer. If prior to the Close of Escrow Seller determines that any representation or warranty of Buyer is untrue, inaccurate or incomplete in any material respect (and without waiving any of Seller’s rights or remedies hereunder at law or in equity with respect to any material untruth, incompleteness or inaccuracy existing on the Effective Date, that was known of or should have been known of by Buyer), Seller may give Buyer written notice of same and Buyer shall have seven (7) days from the date of receipt of Seller’s notice (and the Closing Date shall be extended to permit the running of such seven (7) day period) (“Buyer Cure Period”) to correct any fact or circumstance that makes such representation or warranty materially untrue or inaccurate to Seller’s reasonable satisfaction. If Buyer fails to make such correction within the Buyer Cure Period, then Seller by written notice to Buyer within three (3) days after the expiration of the Buyer Cure Period (and the Closing Date shall be extended to permit the running of such three (3) day period) shall be entitled (a) to terminate this Agreement or (b) continue this Agreement in full force and effect with no change in terms, but without waiving any legal, equitable or other remedies it may have against Buyer. The foregoing is not a waiver or release of any of Seller’s rights or remedies for any material untruth, incompleteness or inaccuracy in a representation or warranty of Buyer of which Seller obtains knowledge after the Close of Escrow.
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6.2.1 Authorization. Buyer has full power and authority to enter into this Agreement and to perform all of its obligations hereunder, and has taken all action required by law, its governing instruments or otherwise to authorize the execution, delivery and performance of this Agreement. Each individual who has executed this Agreement on behalf of Buyer has the right, power, legal capacity and authority to execute, deliver and perform this Agreement on behalf of Buyer.
6.2.2 Binding Agreement. This Agreement constitutes
a legal, valid and binding obligation of Buyer enforceable against Buyer in accordance with its terms, except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other principles relating to or limiting the rights of contracting parties generally.
6.2.3 Compliance with Law. Buyer is required to carry
out the development in conformity with all applicable laws, including all applicable building, planning and zoning laws, including any historic property regulations and environmental laws.
6.3 Natural Hazard Zone Disclosure. No later than seven (7) business days prior to the Property Approval Date, the Seller will, at its sole cost and expense, provide Buyer with a Natural Hazard Zone Disclosure required by applicable law.
6.4 Buyer and Seller Cooperation. Buyer shall submit plans for the Project to Seller, and Seller, in its capacity as the City within which the Project is located, will make the determination as to the required entitlements based upon Buyer's proposed plans. Buyer may then process and obtain the Project Entitlements through Seller in its capacity as the City within which the Project Entitlements is located. Nothing in this Agreement shall be deemed to be a prejudgment or commitment with respect to exercise of governmental discretion with regard to such items, nor a guarantee that such approvals or permits will be granted at all or within any particular time or with or without any particular conditions.
7. Destruction/Condemnation of Property; Other Notices. In the event that all or any portion of the Property is damaged or destroyed by any casualty under the provisions of applicable law after the Effective Date but prior to the date of Closing, Seller shall give Buyer immediate written notice of the same.
8. Indemnification.
8.1 Obligations. Seller shall Indemnify Buyer and Buyer shall Indemnify Seller against any wrongful intentional act or negligence of the Indemnitor. Buyer shall also Indemnify Seller against any and all of the following: (a) any damage to the Property caused by the Investigations of the Property by Buyer; and (b) any accident, injury or damage whatsoever caused to any person in or on the Property by Buyer prior to the Closing. Notwithstanding anything to the contrary in this Agreement, no Indemnitor shall be required to Indemnify any Indemnitee to the extent of the Indemnitee’s wrongful intentional acts or negligence.
8.2 Limitation on Liability of the Seller. Following the Close of Escrow, the Buyer is and shall be responsible for operation of the Property and the Project, and the Seller shall not be liable for City Council 24 – 17 7/19/2022
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any injury or damage to any property (of the Buyer or any other person) or to any person occurring on or about the Property or the Project, except to the extent caused by the Seller’s wrongful intentional act or negligence.
8.3 Strict Liability. The indemnification obligations of an Indemnitor shall apply regardless of whether liability without fault or strict liability is imposed or sought to be imposed on one or more Indemnitees.
8.4 Independent of Insurance Obligations. Buyer’s indemnification obligations under this Agreement shall not be construed or interpreted as in any way restricting, limiting, or modifying Buyer’s insurance or other obligations under this Agreement and is independent of the Buyer’s insurance and other obligations under this Agreement. Buyer’s compliance with its insurance obligations and other obligations under this Agreement shall not in any way restrict, limit, or modify the Buyer’s indemnification obligations under this Agreement and are independent of the Buyer’s indemnification and other obligations under this Agreement.
8.5 Survival of Indemnification and Defense Obligations. The indemnity and defense obligations under this Agreement shall survive the expiration or earlier termination of this Agreement, until all claims against any of the Indemnitees involving any of the indemnified matters are fully, finally, absolutely and completely barred by applicable statutes of limitations.
8.6 Independent Duty to Defend. The duty to defend under this Agreement is separate and independent of the duty to Indemnify. The duty to defend includes claims for which an Indemnitee may be liable without fault or strictly liable. The duty to defend applies immediately upon notice of a claim, regardless of whether the issues of negligence, liability, fault, default or other obligation on the part of the Indemnitor or the Indemnitee have been determined. The duty to defend applies immediately, regardless of whether the Indemnitee has paid any amounts or incurred any detriment arising out of or relating (directly or indirectly) to any claims. It is the express intention of the Parties that an Indemnitee be entitled to obtain summary adjudication or summary judgment regarding an Indemnitor’s duty to defend the Indemnitee, at any stage of any claim or suit, within the scope of the Indemnitor’s indemnity obligations under this Agreement.
8.7 Indemnification Procedures. Wherever this Agreement requires any Indemnitor to Indemnify any Indemnitee:
8.7.1 Prompt Notice. The Indemnitee shall promptly
notify the Indemnitor of any claim. To the extent, and only to the extent, that the Indemnitee fails to give prompt Notice of a Claim and such failure materially prejudices the Indemnitor in providing indemnity for such claim, the Indemnitor shall be relieved of its indemnity obligations for such claim.
8.7.2 Selection of Counsel. The Indemnitor shall select counsel reasonably acceptable to the Indemnitee. Counsel to Indemnitor’s insurance carrier that is providing coverage for a claim shall be deemed reasonably satisfactory. Even though the Indemnitor shall defend the action, Indemnitee may, at its option and its own expense, engage separate counsel to advise it regarding the claim and its defense. The Indemnitee’s separate counsel City Council 24 – 18 7/19/2022
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may attend all proceedings and meetings. The Indemnitor’s counsel shall actively consult with the Indemnitee’s separate counsel. The Indemnitor and its counsel shall, however, fully control the defense, except to the extent that the Indemnitee waives its rights to indemnity and defense for such claim.
9. Miscellaneous.
9.1 Notices. Any notice, request, demand, instruction or other document required or permitted to be given or served hereunder or under any document or instrument executed pursuant hereto will be in writing and will be delivered personally or sent by United States registered or certified mail, return receipt requested, postage prepaid or by overnight express courier, postage prepaid and addressed to the parties at their perspective addresses set forth below, and the same will be effective upon the date of confirmed dispatch, if by electronic communication receipt if delivered personally or via overnight express courier or on the third Business Day after deposit if mailed. A party may change its address for receipt of notices by service of a notice to such change in accordance herewith. Buyer and Seller hereby agree that notices may be given hereunder by the parties’ respective counsel and that, if any communication is to be given hereunder by Buyer’s or Seller’s counsel, such counsel may communicate directly with all principals as required to comply with the provisions of this Section.
If to Buyer: Rafael and Yolanda Ramos
16285 Mount Islip Cir
Fountain Valley, CA 92708
If to Seller: City of Santa Ana
20 Civic Center Plaza M-30
Santa Ana, CA 92702
Attn: Clerk of the Council
with a copy to: City of Santa Ana
20 Civic Center Plaza M-21
Santa Ana, CA 92702
Attn: Executive Director of Public Works
9.2 No Third Party Beneficiaries. Notwithstanding any provision contained in this Agreement to the contrary, this Agreement is intended as and shall be deemed to be an agreement for the sale of assets and none of the provisions hereof shall be deemed to create any obligation or liability of any person that is not a Party, whether under a third-party beneficiary theory, laws relating to transferee liabilities or otherwise. Buyer shall not assume and shall not be obligated to discharge or be liable for any debts, liabilities or obligations of Seller including, but not limited to, any (a) liabilities or obligations of Seller to its creditors, shareholders, members, partners, .managers, or owners, (b) liabilities or obligations of Seller with respect to any acts, events or transactions occurring prior to, on or after the Close of Escrow, (c) liabilities or obligations of Seller for any federal, state, county or local taxes, or (d) any contingent liabilities or obligations of Seller, whether known or unknown by Seller or Buyer. Buyer shall have no duty whatsoever to take any action or receive or make any payment or credit arising from or related to any services provided or costs incurred in connection with the Property prior to the Close of Escrow, including, City Council 24 – 19 7/19/2022
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but not limited to, any matters relating to cost reports, collections, audits, hearings, or legal action arising therefrom.
9.3 Further Instruments. Each Party will, whenever and as often as it shall be reasonably requested to do so by the other, cause to be executed, acknowledged or delivered any and all such further instruments and documents as may be necessary or proper, in the reasonable opinion of the requesting Party, in order to carry out the intent and purpose of this Agreement.
9.4 Calculation of Time Periods; Business Day; Time of Essence. Unless otherwise specified, in computing any period of time described herein, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is not a Business Day, in which event the period shall run until the end of the next day which is a Business Day. The last day of any period of time described herein shall be deemed to end at 5:00 p.m. local time in the state in which the Real Property is located. As used herein, the term “Business Day” means any day excluding Saturdays, Sundays and State and National holidays and any day the City is closed. Subject to the foregoing provisions, time is of the essence of this Agreement.
9.5 Entire Agreement; Amendments. This Agreement (including the documents delivered pursuant to this Agreement), constitutes the entire agreement of the Parties pertaining to the subject matter of this Agreement and supersedes all prior agreements or letters of intent of the Parties. This Agreement may not be amended, modified, or supplemented except by a written instrument signed by an authorized representative of each of the Parties.
9.6 Survival. All covenants, agreements, representations, warranties and indemnities contained in this Agreement shall survive the execution and delivery of this Agreement and the Close of Escrow and the delivery and recordation of all documents or instruments in connection therewith.
9.7 Binding Effect; Enforcement. The covenants, agreements, representations, and warranties contained herein will be binding upon, be enforceable by and inure to the benefit of the representatives, successors, and permitted assigns of the respective parties hereto.
9.8 Applicable Law. This Agreement will be construed and interpreted under, and governed and enforced according to, the laws of the State of California applicable to contracts made and to be performed entirely therein.
9.9 Venue. In the event of any legal action to enforce or interpret this Agreement, the sole and exclusive venue shall be the Superior Court of Orange County and the Parties hereby agree to and do hereby submit to the jurisdiction of such court.
9.10 Attorneys’ Fees. If any Party to this Agreement shall bring any action or proceeding for any relief against the other, declaratory or otherwise, in any way arising out of or in connection this Agreement and/or the Property, the losing Party shall pay to the prevailing Party a reasonable sum for attorneys’ fees and costs (including without limitation expert witness fees) incurred in bringing or defending such action or proceeding or enforcing any judgment granted therein, all of which shall be deemed to have accrued upon the commencement of such action or proceeding and shall be paid whether or not such action or proceeding is prosecuted to final judgment. Any judgment or order entered in such action or proceeding shall contain a specific provision providing for the recovery of attorneys’ fees and costs, separate from the judgment, incurred in enforcing such judgment. The prevailing Party shall be City Council 24 – 20 7/19/2022
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determined by the trier of fact based upon an assessment of which Party’s major arguments or positions taken in the proceedings could fairly be said to have prevailed over the other Party’s major arguments or positions on major disputed issues. For the purposes of this Section, attorneys’ fees shall include, without limitation, fees incurred in the following: (1) post-judgment motions; (2) contempt proceedings; (3) garnishment, levy and debtor and third party examinations; (4) discovery; and (5) bankruptcy litigation.
9.11 Construction. The provisions of this Agreement shall not be construed in favor of or against either Party, but shall be construed as if both Parties prepared this Agreement.
9.12 Interpretation. The paragraph and section headings in this Agreement are solely for convenience and will not be deemed to limit or otherwise affect the meaning or construction of any part of this Agreement. Any pronoun used in this Agreement will be deemed to cover all genders. The terms “include,” “including,” and similar terms will be construed as if followed by the phrase “without being limited to.” The term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision or section of this Agreement. Words in this Agreement importing the singular number will mean and include the plural number, and vice versa.
9.13 No Waiver. No waiver by a Party of a breach of any of the terms, covenants, or conditions of this Agreement by the other shall be construed or held to be a waiver of any succeeding or preceding breach of the same or any other term, covenant or condition contained herein. No waiver of any default by a Party shall be implied from any omission by the other Party to take any action on account of such default if such default persists or is repeated and no express waiver shall affect a default other than as specified in such waiver. The consent or approval by either Party to or of any act by the other requiring the first Party’s consent or approval shall not be deemed to waive or render unnecessary the consenting Party’s consent or approval to or of any subsequent similar acts by the other Party.
9.14 Severability of Provisions. Wherever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement will be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
9.15 Incorporation of Exhibits. Except as intentionally omitted, all exhibits attached hereto and referred to herein are incorporated into the Agreement as though fully set forth herein.
9.16 Counterparts. This Agreement may be executed in any number of counterparts and by different Parties to this Agreement in separate counterparts, each of which when so executed and delivered will be deemed original, but all such counterparts, together, will constitute but one and the same instrument. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. This Agreement will become effective upon the execution and delivery of a counterpart hereof by each Party to this Agreement.
A signature of a Party to this Agreement sent by facsimile, electronic mail (including a scanned portable document format copy sent by electronic mail), or other electronic transmission will have the same force and effect as delivery of an original signature of such Party.
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Exhibit “A”
EXHIBIT “A”
LEGAL DESCRIPTION - 1247 WEST SANTA ANA BOULEVARD
All right title and interest of Seller in and to that certain real property located in Santa Ana, Orange County, California, described as follows:
See Exhibits A, B, C, and D attached.
APN# 008-082-29
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Exhibit “B”
EXHIBIT “B”
FORM OF GRANT DEED
[see attached]
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Exhibit “B”
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AT THE REQUEST OF AND
WHEN RECORDED MAIL TO:
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Attention: City Clerk
SPACE ABOVE FOR RECORDER’S USE
GRANT DEED
DEED NO. 8829
For a valuable consideration, receipt of which is hereby acknowledged:
The City of Santa Ana, a California charter city in the County of Orange of the State of California (“Grantor” or “City”), hereby grants to Rafael and Yolanda Ramos, individuals (“Grantee”), that certain real property described in Exhibit “A” attached hereto and incorporated herein by this reference together with (a) all improvements owned by Grantor and located on the Property and all fixtures contained in any such improvements, and (b) any and all easements, rights-of-way, privileges, rights and appurtenances benefiting, appertaining or belonging to the Property, including, without limitation, any and all streets and roads (whether opened or proposed) abutting the Property, riparian rights, water or water rights and stock evidencing any such water rights, and/or oil, gas or other minerals laying under the Property (“Property”).
EXECUTED ON ___________________, in ________________________, California.
Dated:
CITY:
THE CITY OF SANTA ANA, a California
charter city in the County of Orange of the
State of California
By:
Name:
Its:
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
City Attorney
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Exhibit “B”
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[NOTE: All signatures must be notarized]
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Exhibit “B”
-3-
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PWA
SANTA ANA
PUBLIC WORKS AGENCY
R/W
SANTAANABOULEVARD
75'
N.T.S.
(SURPLUS PROPERTY)
1247 WEST
SANTA ANA BOULEVARD 40'
LEGEND:
STREET VACATION AREA
12'
PAGE 1 OF 1
R/W
BR
SI
TO
L
STREET
CL
CL
MAY 3, 2022
AGENDA DATE:
CITY COUNCIL
OF SANTA ANA BOULEVARD
SUMMARILY VACATE A PORTION
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Resolution No. 2022-XXX
RESOLUTION NO. 2022-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF SANTA ANA SUMMARILY VACATING EXCESS
RIGHT-OF-WAY AT 1247 WEST SANTA ANA BLVD
WHEREAS, California Streets and Highways Code section 8334(a) authorizes the City of Santa Ana to summarily vacate excess right-of-way of a street or highway not required for street purposes; and
WHEREAS, pursuant to California Government Code section 65042(a), street vacations must first be submitted to and reported upon by the Planning Commission for conformance with the General Plan; and
WHEREAS, the City is the fee simple owner of that certain real property consisting of approximately 5,690 square feet, located at 1247 West Santa Ana Boulevard (APN No. 008-082-29), Santa Ana, California (“Property”), which is a remnant parcel that is unused and remaining from the Bristol Street Improvement Project; and
WHEREAS, having satisfied the requirements of the Surplus Lands Act, California Government Code section 54220 et seq., the City intends to sell the Property; and
WHEREAS, the Property frontage includes a portion of public right-of-way, approximately 456 square feet in size, that was originally granted to the City prior to the Bristol Street Improvement Project, as described on Exhibit A and shown on Exhibit B (“Vacation Area”); and
WHEREAS, the public right-of-way comprising the Vacation Area is excess and no longer required for public street purposes, as determined by the City’s Public Works Agency; and
WHEREAS, following an earlier finding of conformity with the City’s General Plan by the Planning Commission, as reported by the Planning Commission, the City now desires to summarily vacate the Vacation Area so that it will revert to the buyers of the Property upon the sale of the Property.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Santa Ana as follows:
Section 1. The recitals set forth above are adopted as findings in support of this Resolution.
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Resolution No. 2022-XXX
Section 2. The Vacation Area, as described on Exhibit A and shown on Exhibit B, is hereby vacated pursuant to Chapter 4 of Part 3 of Division 9 of the Streets and Highways Code, except for the reservation of easement described herein.
Section 3. The vacation of the Vacation Area is exempt from review under the California Environmental Quality Act pursuant to section 15061(b)(3) of the State CEQA Guidelines because it can be seen with certainty that there is no possibility that it will have a significant impact on the environment. This vacation is also exempt from CEQA review under section 15305(c) (minor alterations in land use limitations) of the State CEQA Guidelines.
Section 4. The City hereby reserves and excepts from vacation, pursuant to section 8340 of the California Streets and Highways Code, the easement and right at any time, or from time to time, to construct, maintain, operate, replace, remove, and renew sanitary sewers and storm drains and appurtenant structures in, upon, over, and across a street or highway proposed to be vacated and, pursuant to any existing franchise or renewals thereof, or otherwise, to construct, maintain, operate, replace, remove, renew, and enlarge lines of pipe, conduits, cables, wires, poles, and other convenient structures, equipment, and fixtures for the operation of gas pipelines, telegraphic and telephone lines, railroad lines, and for the transportation or distribution of electric energy, petroleum and its products, ammonia, and water, and for incidental purposes, including access to protect these works from all hazards in, upon, and over the street or highway proposed to be vacated.
Section 5. The Clerk of the Council is hereby directed to cause a certified copy hereof, attested under seal, to be recorded in the Office of the Recorder of Orange County.
Section 6. The Vacation Area shall not be deemed vacated until this Resolution is recorded. From and after the date this Resolution is recorded, the Vacation Area no longer constitutes a street easement.
Section 7. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution.
ADOPTED this ____ day of July, 2022.
Vicente Sarmiento
Mayor
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Resolution No. 2022-XXX
APPROVED AS TO FORM:
Sonia R. Carvalho, City Attorney
By:
John M. Funk
Chief Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, Daisy Gomez, Clerk of the Council, do hereby certify the attached Resolution No. 2022 -_____ to be the original resolution adopted by the City Council of the City of Santa Ana on _________________, 2022.
Date:
Clerk of the Council
City of Santa Ana
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Public Works Agency
www.santa-ana.org/pw
Item # 25
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
July 19, 2022
TOPIC: Real Property Acquisition for Warner Avenue Street Improvements
AGENDA TITLE
Authorize a Purchase Agreement in the Amount of $785,000 for Full Real Property Acquisition for Warner Avenue Improvements Phase 2 (Property Owner: Maria Gamboa) (Project No. 18-6901) (Non-General Fund)
RECOMMENDED ACTION
Authorize the City Manager to execute a purchase agreement with property owner Maria Arellano De Gamboa, as Successor Trustee of the Gamboa Declaration of Trust, U/A Dated April 27, 1998, for the full property acquisition and goodwill (if any) of the real property located at 2247 S Evergreen Street (APN 016-211-26) in the amount of $785,000, subject to non-substantive changes approved by the City Manager and City Attorney.
DISCUSSION
Warner Avenue is classified as an East-West Major Arterial in the City’s General Plan Circulation Element and the County of Orange Master Plan of Arterial Highways.
Improving the one-mile segment of Warner Avenue from Main Street to Wright Street has been a long-term priority project that is being constructed in several phases.
Improvements include widening the street from a four-lane roadway to a six-lane arterial to address safety issues and provide adequate vehicular capacity. Also included is the installation of parkways, raised median landscaping, storm drains, protected bike lanes, sound walls, street lights, and traffic signals.
The City is acquiring properties for the development of Phase 2 of the Warner Avenue Improvements Project, bounded by Oak Street and Grand Avenue. Construction is anticipated to begin in spring 2023. The recommended property acquisition (Exhibit 1) is necessary to accommodate the street improvements. The mutually agreed upon purchase offer was determined based on the appraised value prepared by a California State licensed appraiser and accepted by the property owner (Exhibit 2).
The proposed improvements for the project originated as a mitigation measure for the Tustin Legacy Project, which involves the redevelopment of the former Tustin Marine Corps Air Station as a mixed-use commercial, residential, and industrial project. As such, the City of City Council 25 – 1 7/19/2022
Real Property Purchase Agreement – Warner Avenue Improvements, Phase 2 July 19, 2022
Tustin agreed to partially fund the improvements on Warner Avenue between Main Street and Grand Avenue.
ENVIRONMENTAL IMPACT
On September 1, 2015, City Council approved the Warner Avenue Final Environmental Impact Statement (SCH No. 2012101004).
FISCAL IMPACT
Funds in the amount of $785,000 are budgeted and available in the Warner Avenue Improvements Project (No. 18-6901) for property acquisition expenditures in FY 2022-23 as follows:
Fiscal
Year
Accounting
Unit–Account
No.
Fund Description
Accounting Unit,
Account No.
Description
Amount
2022-23 03217663-66100 Measure MStreet Construction
Measure M2 Competitive
Street, Land $588,750
2022-23 05917668-66100
Select Street
Construction
(City of Tustin
Contribution)
Warner Ave-Tustin
Community Facilities
District, Land
$196,250
TOTAL $785,000
EXHIBIT(S)
1. Location Map
2. Purchase Agreement – APN 016-211-26
Submitted By: Nabil Saba, P.E., Executive Director – Public Works Agency Approved By: Kristine Ridge, City Manager
City Council 25 – 2 7/19/2022
EVERGREEN ST
STANDARD AVE
HATHAWAY ST
W
A
RN
ER AVE
W
A
RN
ER AVE
EVERGREEN ST
LEGEND:
-SUBJECT PROPERTY
TITLE:
EXHIBIT 1
PWA
SANTA ANA
PUBLIC WORKS AGENCY
NONGENERAL FUND)
PURCHASE AGREEMENTS FOR WARNER AVENUE
-ACQUIRED PROPERTIES
IMPROVEMENTS (PROJECT NO. 18-6901
N
(
N
T
S
)
SEE TOP RIGHT
MATCHLINE
SEE BOTTOM LEFT
MATCHLINE
016-133-28
1106 E. WARNER AVE
016-211-26
2247 S. EVERGREEN ST
016-120-52
1201 E. WARNER AVE
016-12
0-48
1221 E. WARNER AVE
016-120-54
1231 E. WARNER AVE
016-120-53
1243 E.WARNER AVE
014
-281
-19
1301
E. WARNER AVE
016-150-52
1312 E. WARNER AVE
016-133-43
016-133-29
016-133-47
016-120-49
1201 E. WARNER AVE
016-150-09
016-150-74
016-212-25
2246 S. EVERGREEN ST
016-131-18
2301 S EVERGREEN ST
016-150-09
1224 E. WARNER AVE
016-211-25
2246 S. STANDARD AVE
EXHIBIT 1
City Council 25 – 3 7/19/2022
PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY
AND BILATERAL ESCROW INSTRUCTIONS
THIS AGREEMENT (hereinafter "PSA") , entered into on 2022, between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California (hereinafter "City" or "Buyer"), and Maria Arellano De Gamboa, as Successor Trustee of the Gamboa Declaration of Trust, U/A Dated April 27, 1998 (hereinafter "Seller"), regardless of number or gender; THEREFORE, for and in consideration of their mutual promises, covenants and agreements, and subject to the terms, conditions and provisions of this PSA, Seller agrees to sell to City, and City agrees to purchase from Seller, that certain real property (hereinafter "Said Real Property") legally described as follows:
SEE EXHIBIT "A"- Legal Description
ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as 2247 S. Evergreen Street, Santa Ana, CA 92707) (APN 016-211-26)
Said purchase and sale of Said Real Property shall be in accordance with and subject to all of the following terms, conditions, promises, covenants, agreements and provisions, to wit:
1. Conveyance by Seller. Seller agrees to convey said real property to City, by Grant Deed, at the office of Fidelity National Title, 4400 MacArthur Blvd., Suite 200, Newport Beach, California within sixty (60) days from and after the date on which the City has approved this Agreement.
2. Title to be Conveyed. Seller agrees that, except as may hereinafter be otherwise expressly provided, said real property shall be conveyed by Seller to City, as aforesaid, free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non-monetary, general or specific, including any and all leasehold interests}, liens, clouds or defects in title except those exceptions shown in Paragraph 15 below. Seller hereby warrants that the title to said real property to be conveyed by Seller to City shall be free and clear as provided above. Seller further agrees that acceptance by City of any deed to said real property, with or without knowledge of any condition, restriction, reservation, exception, easement, assessment, profit, limitation, encumbrance (whether monetary or non-monetary, general or specific, and including any and all leasehold interests), lien, cloud or defect in title, shall not constitute a waiver by City of its right to the full and clear title hereinabove agreed to be conveyed by Seller to City, nor of any right which might accrue to City because of the failure of Seller to convey title as hereinabove provided.
3. Title Insurance. Seller agrees to deliver to City, concurrently with the conveyance of said real property to City, within the time and at the place hereinabove specified for said conveyance of said real property, a policy of title insurance to be issued by the above mentioned title company, with the City therein named as the insured, in the amount of Seven Hundred Eighty Five Thousand Dollars and no/100 Dollars ($785,000.00) insuring the title of the City to said real property is free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances (whether monetary or non-monetary, general or specific, and including any and all leasehold interests}, liens, clouds or defects in title, excepting such specific ones as city may hereinafter expressly agree to take subject to. Acceptance by City of any such policy of insurance, whether such insurance complies with the requirements of this paragraph or not, shall not constitute a waiver by City of its right to such insurance as is herein required of Seller, nor a waiver by the City of any rights of action for damages or any other rights which may accrue to City by reason of the failure of Seller to convey title or to provide title insurance as required in this Agreement.
EXHIBIT 2
City Council 25 – 4 7/19/2022
4. Escrow. City agrees to open an escrow at the office of Fidelity National Title, 4400 MacArthur Blvd., Suite 200, Newport Beach, California, (the Escrow Agent) within five (5) days from and after the date on which the City has approved this Agreement. This Agreement constitutes the joint escrow instructions of the City and the Seller and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the escrow. Escrow to close within sixty (60) days of the City's execution of this Agreement. If escrow is not in a condition to close by the Close of Escrow, and failure to close is due to unforeseen conditions of title or interest of third parties in the Property that cannot be resolved in Escrow, then buyer may, at its option, request cancellation of escrow and this Agreement and return of any funds it has deposited into escrow. Thereupon, all obligations and liabilities of the Parties under this Agreement shall cease and terminate. If no such request is made, Escrow shall be closed as soon as possible thereafter. Buyer shall be entitled to possession of the Property immediately upon close of Escrow.
The Escrow Agent hereby is empowered to act under this Agreement, and upon indicating its acceptance of this Section 4 and of the General Provisions described in Exhibit "B" attached hereto and incorporated herein by this reference, in writing, delivered to the City and to the Seller within five (5) days after delivery of this Agreement, shall carry out its duties as Escrow Agent hereunder.
City agrees to bear and Escrow Agent is hereby authorized to charge to the City the cost of any transfer taxes, recording fees, cost of title insurance, re-conveyance fees, document preparation fees, escrow fees and any other closing costs incidental to the conveying of said real property to City. Penalties for prepayment of bona fide obligations secured by any existing deed of trust or mortgage shall be waived pursuant to Civil Code Procedures Section 1265.240.
The liability to the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it under Section 4, Section 6, Section 8 and Exhibit "B" of the General Provisions of this Agreement.
5. Property Taxes. Such real property taxes, if any, on said real property for the fiscal year within which said real property is conveyed to City as are unpaid at the time of said conveyance shall be cleared and paid in accordance with the provisions of Section 4986 of the Revenue and Taxation Code of the State of California. Seller shall be eligible for a refund under Section 5096.7 of the Revenue and Taxation Code of the State of California for that portion of property taxes on said real property for said fiscal year which have been paid prior to. the date the deed conveying said real property to City is recorded which is allocable to that portion of the fiscal year which begins on the date the deed conveying said real property to City is recorded and made uncollectible if unpaid by reason of Section 5086 of the Revenue and Taxation Code of the State of California. To the extent that Seller has prepaid any taxes or assessments attributable to the Property; Seller shall be solely responsible for obtaining any refund due thereon from the taxing authority. Upon written request, Buyer shall assist Seller, at Seller's sole cost, in obtaining said refund, if any; however, in no case shall Buyer credit or otherwise pay Seller for that refund, if any, through or outside of Escrow.
All unpaid taxes on said real property for any and all years prior to the fiscal year within which said conveyance is made shall be paid by Seller before conveyance of said real property to City.
6. Payment of Purchase Price. City agrees to pay to Seller, and Seller agrees to accept from City, as and for the full purchase price for said real property, fixtures & equipment (improvements pertaining to the realty), goodwill (if any), and severance damages, the total sum of Seven Hundred Eighty Five Thousand Dollars and no/100 Dollars ($785,000.00). City agrees to deposit said purchase price in escrow with the Escrow Agent within THIRTY (30) days from and after the date on which the City has approved this Agreement, and the Escrow Agent is hereby authorized to pay the same to Seller upon and after:
a. Conveyance of said real property by Seller to City as hereinabove provided; b. Acceptance by City of a Grant Deed conveying said real property to City; City Council 25 – 5 7/19/2022
c. Delivery to City of the policy of title insurance as hereinabove provided; d. Recordation of the Deed conveying said real property to City.
7. Possession. Seller agrees to deliver to City, on the date the Deed conveying said real property to City is recorded, quiet and peaceful possession of said real property, which shall be made free by Seller of all personal property.
a. No later than fourteen days (14) days after close of escrow, Seller shall have removed all merchandise, inventory, equipment, personal property, and/or removable trade fixtures from the Property. Any merchandise, inventory, equipment, personal property, and/or removable trade fixtures at the Property as of three days after close of escrow shall be deemed abandoned by Seller on that date.
b. If Seller does not vacate the Property by the above stated date, the Seller agrees to have the Court immediately issue a Writ of Possession and/or Assistance, directing the Marshall or Sheriff of Orange County to take physical possession of the Property in favor of the City.
Seller waives the right to have the City file an unlawful detainer action, as well as waive the right to any hearing or any requirements for an application by City to obtain the Writ of Possession and/or Assistance and waives any and all rights to object to the issuance of said Writ if Seller does not vacate the Property by fourteen (14) days after close of escrow.
8. Rental and Occupancy By Seller. Seller agrees to execute a complete, current and correct statement of rentals (Seller Estoppel) on a form furnished to Seller by City and deliver same to City within fifteen (15) days hereof with copies of any written leases or rental agreements attached. All rents will be prorated as of the close of escrow on the basis of a 30-day month/360-day year consistent with that statement, subject to approval of City. Seller hereby agrees not to rent any units on the premises which are vacant as of the date that this agreement is executed by seller, or which may be vacated by present occupants prior to close of escrow. In return, the City agrees to reimburse seller lost rentals incurred by keeping units vacant through the close of escrow. Seller agrees that any and all Tenant Security Deposits pertaining to the subject property collected by or in the possession of Seller prior to the close of escrow shall be transferred to and become the property of City during escrow.
Seller hereby warrants that the rental statement referred to shall include the terms of all rental agreements, tenancies, and leases (written, unwritten, recorded, or unrecorded) and Seller agrees to hold City harmless from all liability from any such leases or agreements. Seller also warrants that there are no oral or written leases on all or any portion of the subject property exceeding a period of one month.
9. Waivers. The waiver by City of any breach of any covenant or agreement herein contained on the part of the Seller shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement nor a waiver of any breach of any other covenants or agreements contained herein.
10. Heirs, Assigns, Successors-in-Interest. This PSA, and all the terms, covenants and conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective Parties hereto.
11. Time is of the Essence. 1 n all matters and things hereunder to be done and in all payments hereunder to be made, time is and shall be of the essence.
12. Just Compensation. Seller acknowledges and agrees that said purchase price is just compensation at fair market value for said real property and includes payment for fixtures & equipment (improvements pertaining to the realty), goodwill (if any), and severance damages.
City Council 25 – 6 7/19/2022
13. Acknowledgment of Full Benefits and Release.
A. By execution of this Agreement, Seller, on behalf of himself, his heirs, executors, administrators, successors and assigns, hereby acknowledges that this Agreement provides full payment for the acquisition of the Property by Buyer, and Seller hereby expressly and unconditionally waives any claim for compensation for injury to the remainder ("severance damages"); precondemnation damages; claims for inverse condemnation; loss of goodwill and/or lost profits; loss or impairment of any "bonus value" attributable to any lease; damage to or loss of improvements pertaining to the realty; damage to or loss of machinery, fixtures, inventory, equipment and/or personal property; any right to repurchase, leaseback from Seller, or receive any financial gain from, the sale of any portion of the Property , or challenge Buyer's adoption of a resolution of necessity, pursuant to Code of Civil Procedure sections 1245.245; any right to receive any notices pursuant to Code of Civil Procedure section 1245.245; any right to enforce any other obligation placed upon Seller pursuant to Code of Civil Procedure sections 1245.245, 1263.025 and 1263.615; any other rights conferred upon Sellers pursuant to Code of Civil Procedure sections 1245.245 and 1263.615 and 1263.025; and attorney's fees and costs. It being understood that this is a complete and full settlement of all acquisition claims, liabilities, or benefits of any type or nature whatsoever relating to or in connection with the acquisition of the Property by Buyer. This release shall survive the Close of Escrow.
B. This Agreement arose out of Buyer's efforts to acquire the Property through its municipal authority.
Seller, on behalf of himself, his heirs, executors, administrators, successors and assigns, hereby fully releases Buyer, its successors, agents, representatives (including attorneys), and assigns, and all other persons and associations, known or unknown, from all claims and causes of action by reason of any damage which has been sustained by Seller, or may be sustained by Seller, as a result of Buyer's efforts to acquire the Property or to construct the works of improvement thereon, or any preliminary steps thereto. This Agreement does not, and shall not be construed to, require Seller to indemnify Buyer for damages which may arise as a result of Buyer's efforts to construct improvements on the Property.
This acknowledgment and release shall survive the Close of Escrow.
14. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O. Box 1988, in the City of Santa Ana 92701, County of Orange, State of California. The mailing address of the Seller is 2247 S. Evergreen Street, Santa Ana, CA 92707.
15. Exceptions. City agrees to accept title to said real property subject to the following: NONE.
16. Entire Agreement. It is mutually agreed that the Parties hereto have herein set forth the whole of their Agreement. Performance of this PSA by City shall lay at rest, each, every, and all issue(s) that were raised or could have been raised in connection with the acquisition of Said Real Property by City.
17. Hazardous Waste. Neither Seller nor, to the best of Seller's knowledge, any previous owner, tenant, occupant, or user of the Property used, generated, released, discharged, stored, or disposed of any hazardous waste, toxic substances, or related materials ("Hazardous Materials") on, under, in, or about the Property, or transported any Hazardous Materials to or from the Property. Seller shall not cause or permit the presence, use, generation, release, discharge, storage, or disposal of any Hazardous Materials on, under, in, or about, or the transportation of any Hazardous Materials to or from, the Property. The term "Hazardous Material" shall mean any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste", "extremely hazardous waste", or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material", "hazardous substance", or "hazardous waste" under Section 25501 of the California Health and City Council 25 – 7 7/19/2022
Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S. C. S1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C.
S6901 et seq. (42 U.S. C. S6903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42. U.S.C. S9601 et seq. (42 U.S.C. S9601).
18. Compliance With Environmental Laws. To the best of Seller's knowledge the Property complies with all applicable laws and governmental regulations including, without limitation, all applicable federal, state, and local laws pertaining to air and water quality, hazardous waste, waste disposal, and other environmental matters, including, but not limited to, the Clean Water, Clean Air, Federal Water Pollution Control, Solid Waste Disposal, Resource Conservation Recovery and Comprehensive Environmental Response Compensation and Liability Acts. and the California Environment Quality Act, and the rules, regulations, and ordinances of the city within which the subject property is located, the California Department of Health Services, the Regional Water Quality Control Board, the State Water Resources Control Board, the Environmental Protection Agency, and all applicable federal, state, and local agencies and bureaus.
19. Indemnity. Seller agrees to indemnify, defend and hold the City harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorneys' fees), resulting from, arising out of, or based upon (i) the presence, release, use, generation, discharge, storage, or disposal of any Hazardous Material on, under, in or about, or the transportation of any such materials to or from, the Property, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation, release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, in, or about, to or from, the Property. This indemnity shall include, without limitation, any damage, liability, fine, penalty, punitive damage, cost, or expense arising from or out of any claim, action, suit or proceeding for personal injury (including sickness, disease, or death, tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, pollution, contamination, leak, spill, release, or other adverse effect on the environment). This indemnity extends only to liability created prior to or up to the date this escrow shall close. Seller shall not be responsible for acts or omissions to act post close of this escrow.
20. Contingency. It is understood and agreed between the parties hereto that the completion of this transaction, and the escrow created hereby, is contingent upon the specific acceptance and approval of the City herein. The execution of these documents and the delivery of same to Escrow Agent constitute said acceptance and approval.
21. Modification and Amendment. This PSA may not be modified or amended except in writing signed by the Seller and City.
22. Partial Invalidity. Any provision of this PSA that is unenforceable or invalid or the conclusion of which would adversely affect the validity, legality, or enforcement of this PSA shall have no effect, but all the remaining provisions of this PSA shall remain in full force.
23. Captions. Captions and headings in this PSA, including the title of this PSA, are for convenience only and are not to be considered in construing this PSA.
24. Governing Law. This PSA shall be governed by and construed in accordance with the laws of the State of California.
City Council 25 – 8 7/19/2022
25. No Reliance By One Party On The Other. Each party has received independent legal advice from its attorneys with respect to the advisability of executing this PSA and the meaning of the provisions hereof. The provisions of this PSA shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question.
26. No Third Party Beneficiary. This PSA is intended to benefit only the Parties hereto and no other person or entity has or shall acquire any rights hereunder.
27. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the other, execute and deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this PSA, without cost.
28. Applicability of Agreement To Assignees. This PSA shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties to this PSA.
29. Authority to Execute Agreement. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this PSA, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn.
30. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this PSA.
City Council 25 – 9 7/19/2022
IN WITNESS WHEREOF, the Parties hereto have executed this PSA on the date and year first written above.
SELLER: Maria Arellano De Gamboa, as Successor Trustee of the Gamboa Declaration of Trust, U/A Dated April 27, 1998
/h1 a h-e, Gah/J. ~ ':!f
Maria Arellano De Gamboa
Successor Trustee
City/Buyer
City of Santa Ana
Kristine Ridge
City Manager
Attest:
Daisy Gomez
City Clerk
Approved as to Form:
John M. Funk
Sr. Assistant City Attorney
RECOMMENDED FOR APPROVAL:
Nabil Saba
Executive Director
Public Works Agency
Date: s/c;P . 2022
Date: I 2022
Date: . 2022
Date: -------· 2022
Date: -------· 2022
May 20
City Council 25 – 10 7/19/2022
EXHIBIT "A"
THE LAND REFERRED TO HEREIN IS SITU A TED IN COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOT 25 IN BLOCK A OF TRACT NO. I 541 , IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 45, PAGES 48 AND 49 OF MISCELLANEOUS MAPS, RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
Assessor's Parcel Number: 016-211-26
City Council 25 – 11 7/19/2022
EXHIBIT "8" (Fidelity National Title)
GENERAL ESCROW PROVISIONS
I. DEPOSIT OF FUNDS
The law dealing with the disbursement of funds requires that all funds be available for withdrawal as a matter of right by the title entity's escrow and/or sub escrow account prior to disbursement of any funds. Only wire-transferred funds can be given immediate availability upon deposit.
Cashier's checks, teller's checks and Certified checks may be available one business day after deposit. All other funds such as personal, corporate or partnership checks and drafts are subject to mandatOI)' holding periods which may cause material delays in disbursement of funds in this escrow. In order to avoid delays, all fundings should be wire transferred. Outgoing wire transfers will not be authorized until confirmation of the respective incoming wire transfer or of avai lability of deposited checks.
Deposit of funds into general escrow trust account unless instructed otherwise. You may instruct Escrow Holder to deposit your funds into an interest bearing account by signing and returning the "Escrow Instructions - Interest Bearing Account", which has been provided to you. If you do not so instruct us, then all funds received in this escrow shall be deposited with other escrow funds in one or more general escrow trust accounts. which include both non-interest bearing demand accounts and other depository accounts of s~:row Holder, in any state or national bank or savings and loan association insured by the Federal Deposit Insurance Corporation (the "depository institutions") and may be transferred to any other such escrow trust accounts of Escrow Holder or one of its affiliates. either within or outside the State of California. A general escrow trust account is restricted and protected against claims by third parties and creditors of Escrow Holder and its affiliates.
Receipt of benefits by Escrow Holder and affiliates. The parties to this escrow acknowledge that the maintenance of such general escrow trust accounts with some depository institutions may result in Escrow Holder or its affiliates being provided with an array of bank services. accommodations or other benefits by the depository institution. Some or all of these benefits may be considered interest due you under California Insurance Code Section 12413.5. Escrow Holder or its aftiliates also may elect to enter into other business transactions with or obtain loans for investment or other purposes from the depository institution. All such services, accommodations. and other benefits shall accrue to Escrow Holder or its afliliates and Escrow Holder shall have no obligation to account to the parties to this escrow for the value of such services, accommodations, interest or other benefits.
Said funds will not earn interest unless the instructions otherwise specifically state that funds shall be deposited in an interest-bearing account. All disbursements shall be made by check of Fidelity National Title Company. The principals to this escrow are hereby notified that the funds deposited herein are insured only to the limit provided by the Federal Deposit Insurance Corporation. Any instruction for bank wire will provide reasonable time or notice for Escrow Holder's compliance with such instruction. Escrow Holder's sole duty and responsibility shall be to place said wire transfer instructions with its wiring bank upon confirmation of ( I) satisfaction of conditions precedent or (2) document recordation at close of escrow. Escrow Holder will NOT be held responsible for lost interest due to wire delays caused by any bank or the Federal Reserve System. and recommends that all parties make themselves aware of banking regulations with regard to placement of wires.
In the event there is insufficient time to place a wire upon any such confirmation or the wires have closed for the day, the parties agree to provide written instructions for an alternative method of disbursement. WITHOUT AN ALTERNATIVE DISBURSEMENT INSTRUCTION, FUNDS WILL BE HELD IN TRUST IN A NON-INTEREST BEARING ACCOUNT UNTIL THE NEXT OPPORTUNITY FOR WIRE PLACEMENT.
2. PRORATIONS AND ADJUSTMENTS
All prorations and/or adjustments called lor in this escrow are to be made on the basis of a thirty (30) day month unless otherwise instructed in writing. You are to use information contained on last available tax statement, rental statement as provided by the Seller. beneficiary's statement and fire insurance policy delivered into escrow for the prorations provided for herein.
3. SUPPLEMENTAL TAXES
The within described property may be subject to supplemental real property taxes due to the change of ownership taking place through this or a previous escrow transaction. Any supplemental real property taxes arising as a result of the transfer of the property to Buyer shall be the sole responsibility of Buyer and any supplemental real property taxes arising prior to the closing date shall be the sole responsibility of the Seller. TAX BILLS OR REFUNDS ISSUED AFTER CLOSE OF ESCROW SHALL BE HANDLED DIRECTLY BETWEEN BUYER AND SELLER.
4. UTILITIES/POSSESSION
Transfer of utilities and possession of the premises are to be settled by the parties directly and outside escrow.
5. PREPARATION AND RECORDATION OF INSTRUMENTS
Escrow Holder is authorized to prepare, obtain, record and deliver the necessary instruments to carry out the terms and conditions of this escrow and to order the policy of title insurance to be issued at close of escrow as called for in these instructions. Close of escrow shall mean the date instruments are recorded.
6. AUTHORIZAT ION TO FURNISH COPIES
You are authorized to furnish copies of these instructions. supplements. amendments. notices of cancellation and closing statements. to the Real Estate Broker(s) anti Lender(s) named in this escrow.
General Provisions Printed· 1/1/000 1 12 :00 AM by JK
EI000076 (DSJ Rev. 05/ 1911 7) Page I
City Council 25 – 12 7/19/2022
7. RIGHT OF CANCELLATION
Any principal instructing you to cancel this escrow shall !1le notice of cancellation in your office in writing. You shall, within two (2) working days thereafter, deliver, one copy of such notice to each of the other principals at the addresses stated in this escrow. UNLESS WRITTEN OBJECTION TO CANCELLATION IS fiLED IN YOUR OfFICE BY A PRINCIPAL WITHIN TEN (10) DAYS AfTER DATE OF
SUCH DELIVERY, YOU ARE AUTHORIZED TO COMPLY WITH SUCH NOTICE AND DEMAND PAYMENT OF YOUR CANCELLATION CHARGES. If written objection is filed, you are authorized to hold all money and instruments in this escrow and take no further action until otherwise directed, either by the principals' mutual written instructions, or by final order of a court of competent jurisdiction.
8. PERSONAL PROPERTY
No examination or insurance as to the amount or payment of personal property taxes is required unless specifically requested.
By signing these General Provisions. the parties to the escrow hereby acknowledge that they are indemnifying the Escrow Holder against any and all matters relating to any "Bulk Sales" requirements, and instruct Escrow Agent to proceed with the closing of escrow without any consideration of matter of any nature whatsoever regarding "Bulk Sales" being handled through escrow.
9. RIGHT OF RESIGNATION
Escrow Holder has the right to resign upon written notice delivered to the principals herein. If such right is exercised. all funds and documents shall be returned to the party who deposited them and Escrow Holder shall have no liability hereunder.
10. AUTHORIZATION TO EXECUTE ASSIGNMENT OF HAZARD INSURANCE POLICIES Either Buyer, Seller and/or Lender may hand you the insurance agent's name and insurance policy information, and you are to execute, on behalf of the principals hereto. form assignments of interest in any insurance policy (other than title insurance) called for in this escrow, forward assignment and policy to the insurance agent. requesting that the insurer consent to such transfer and/or attach a loss payable clause and/or such other endorsements as may be required. and forward such policy(s) to the principals entitled thereto. It is not your responsibility to verify the information handed you or the assignability of said insurance. Your sole duty is to forward said request to insurance agent at close of escrow.
Further, there shall be no responsibility upon the part of Escrow Holder to renew hazard insurance policy(s) upon expiration or otherwise keep it in force either during or subsequent to the close of escrow. Cancellation of any existing hazard insurance policies is to be handled directly by the principals. and outside of escrow.
II. ACTION IN INTERPLEADER
The principals hereto expressly agree that you, as Escrow Holder, have the absolute right at your election to file an action in interpleader requiring the principals to answer and litigate their several claims and rights among themselves and you are authorized to deposit with the clerk of the court all documents and funds held in this escrow. In the event such action is tiled, the principals jointly and severally agree to pay your cancellation charges and costs, expenses and reasonable attorney's fees which you arc required to expend or incur in such interpleader action, the amount thereof to be fixed and judgment therefore to be rendered by the court. Upon the filing of such action, you shall thereupon be fully released and discharged from all obligations imposed by the terms of this escrow or otherwise.
12. TERMINATION OF AGENCY OBLIGATION
If there is no action taken on this escrow within six (6) months after the "time limit date" as set forth in the escrow instructions or written extension thereof. your agency obligation shall terminate at your option and all documents. monies or other items held by you shall be returned to the parties depositing same. In the event of cancellation of this escrow, whether it be at the request of any of the principals or otherwise, the fees and charges due Fidelity National Title Company. including expenditures incurred and/or authorized shall be borne equally by the parties hereto (unless otherwise agreed to specifically).
13. CONFLICTING INSTRUCTIONS
Upon receipt of any conflicting instructions. you are to take no action in connection with this escrow until non-conflicting instructions are received from all of the principals to this escrow (subject to sections 7. 9. II and I 2 above).
14. DELIVERY/RECEIPT
Delivery to principals as used in these instructions unless otherwise stated herein is to be by hand in person to the principal. regular mail, email or fax to any of the contact information provided in these instructions. If delivered by regular mail receipt is determined to be 72 hours after such mailing. All documents. balances and statements due to the undersigned may be delivered to the contact information shown herein. All notices, change of instructions. communications and documents are to be delivered in writing to the office of Fidelity National Title Company as set forth herein.
15. STATE/FEDERAL CODE NOTIFICATIONS
According to Federal Law, the Seller, when applicable, will be required to complete a sales activity report that will be utilized to generate a I 099 statement to the Internal Revenue Service.
General Provisions
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City Council 25 – 13 7/19/2022
Pursuant to State Law, prior to the close of escrow. Buyer will provide Escrow Holder with a Preliminary Change of Ownership Report. In the event said report is not handed to Escrow Holder for submission to the County in which subject property is located, upon recording of the Grant Deed. Buyers acknowledge that the applicable fee will be assessed by said County and Escrow Holder shall debit the account of Buyer for same at close of escrow.
16. NON-RESIDENT ALIEN
The Foreign Investment in Real Property Tax Act (FIRPTA), Title 26 U.S.C., Section 1445, and the regulations there under, provide in part, that a transferee (buyer) of a U.S. real property interest from a foreign person must withhold a statutory percentage of the amount realized on the disposition, report the transaction and remit the withholding to the Internal Revenue Service {IRS) within twenty (20) days after the transfer.
Fidelity National Title Company will not detennine nor aid in the determination of whether the FIRPT A withholding provisions are applicable to the subject transaction. nor act as a Qualified Substitute under state or federal law. nor furnish tax advice to any party to the transaction. Fidelity National Title Company will not determine nor aid in the determination of whether the transaction will qualify for an exception or an exemption and is not responsible for the filing of any tax forms with the IRS as they relate to J'IRPT A. nor responsible for collecting and holding of any documentation from the buyer or seller on the buyer's behalf for the purpose of supporting a claim of an exception or exemption. Fidelity National Title Company is not an agent for the buyer for the purposes of receiving and anai)'Zing any evidence or documentation that the seller in the subject transaction is a U.S. citizen or resident alien . Fidelity National Title Company is not responsible for the payment of this tax and/or penalty and/or interest incurred in connection therewith and such taxes arc not a matter covered by the Owner's Policy of Title Insurance to be issued to the buyer. Fidelity National Title Company is not responsible lor the completion of any IRS documents or related forms related to the referenced statute. The buyer is advised: they must independently make a determination of whether the contemplated transaction is subject to the withholding requirement; bear full responsibility for compliance with the withholding requirement if applicable and/or for payment of any tax. interest, penalties and/or other expenses that may be due on the subject transaction: <md they arc responsible for the completion of any and all forms. including but not limited to applicable IRS documentation, and the mailing of those forms. The Buyer is advised any forms, documents, or information received from Fidelity National Title Company is not tax or legal advice and should not be construed as such nor treated as a complete representation of FIRPTA requirements. Buyer should seck outside counsel from a qualified individual to determine any and all implications of the referenced statute.
17. ENCUMBRANCES
Escrow Holder is to act upon any statements furnished by a lienholder or his agent without liability or responsibility for the accuracy of such statements. Any adjustments necessary because of a discrepancy between the information furnished Escrow Holder and any amount later determined to be correct shall be settled between the parties direct and outside of escrow.
You are authorized, without the need for further approval. to debit my account for any fees and charges that I have agreed to pay in connection with this escrow, and for any amounts that I am obligated to pay to the holder of any lien or encumbrance to establish the title as insured by the policy of title insurance called for in these instructions. If for any reason my account is not debited for such amounts at the time of closing, I agree to pay them immediately upon demand. or to reimburse any other person or entity who has paid them.
18. ENVIRONMENTAL ISSUES
Fidelity National Title Company has made no investigation concerning said property as to environmental/toxic waste issues. Any due diligence required or needed to determine environmental impact as to forms of toxi lication. if applicable. will be done directly and by principals outside of escrow. Fidelity National Title Company is released of any responsibility and/or liability in connection therewith.
19. USURY
Escrow Holder is not to be concerned with any quest ions of usury in any loan or encumbrance involved in the processing of this escrow and is hereby released of any responsibility or liability therefore.
20. DISCLOSURE
Escrow Holder's knowledge or matters affecting the property. provided such facts do not prevent compliance with these instructions. does not create any liability or duty in addition to these instructions.
21. FACSIMILE/ELECTRONIC SIGNATURE
Escrow Holder is hereby authorized and instructed that. in the event any party utilizes electronic or "facsimile" transmitted signed documents or instructions to Escrow Holder, you are to rely on the same for all escrow instruction purposes and the closing of escrow as if they bore original signatures. "Electronic Signature'' means, as applicable, an electronic copy or signature complying with California Law.
22. CLARIFICATION OF DUTIES
Fidelity National Title Company serves ONLY as an Escrow Holder in connection with these instructions and cannot give legal advice to any party hereto.
Escrow Holder is not to be held accountable or liable lor the sufficiency or correctness as to form, manner of execution, or validity of any instrument deposited in this escrow, nor as to the identity, authority or rights of any person executing the same. Escrow Holder's duties hereunder shall be limited to the proper handling of such money and the proper safekeeping of such instruments. or other documents received by Escrow Holder, and for the disposition of same in accordance with the written instructions accepted by Escrow Holder.
The agency and duties of Escrow Holder commence only upon receipt of copies of these Escrow Instructions executed by all parties.
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E1000076 (OS I Rev. 05119117) Page 3
City Council 25 – 14 7/19/2022
23. FUNDS HELD IN ESCROW
When the company has funds remaining in escrow over 90 days after close of escrow or estimated close of escrow. the Company shall impose a monthly holding fee of$25.00 that is to be charged against the funds held by the Company.
THIS AGREEMENT IN ALL PARTS APPLIES TO, INURES TO THE 13ENEFIT OF, AND BINDS ALL PARTIES HERETO. THEIR HEIRS.
LEGATEES. DEVISEES. ADMINISTRATORS. EXECUTORS. SUCCESSORS AND ASSIGNS, AND WHENEVER THE CONTEXT SO
REQUIRES THE MASCULINE GENDER INCLUDES THE FEMININE AND NEUTER, AND THE SINGULAR NUMBER INCLUDES THE PLURAL. THESE INSTRUCTIONS AND ANY OTHER AMENDMENTS MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS.
EACH OF WHICH SHALL BE CONSIDERED AS AN ORIGINAL AND BE EFFECTIVE AS SUCH.
MY SIGNATURE HERETO CONSTITUTES INSTRUCTION TO ESCROW HOLDER OF ALL TERMS AND CONDITIONS CONTAINED
IN THIS AND ALL PRECEDING PAGES AND FURTHER SIGNIFIES THAT I HAVE READ AND UNDERSTAND THESE GENERAL PROVISIONS.
Fidelity National Title Company conducts escrow business under a Certificate of Authority No. 305350 issued by the California Department of Insurance.
General Provisions
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City Council 25 – 15 7/19/2022
Public Works Agency
www.santa-ana.org/pw
Item # 26
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
July 19, 2022
TOPIC: On-Call Advance Traffic Management System Repair Services
AGENDA TITLE
Approve an Agreement with Crosstown Electrical & Data Inc., for On-Call Repair Services of Advance Traffic Management and Communication Systems in an Amount not to Exceed $500,000 for up to a Five-Year Term (Non-General Fund)
RECOMMENDED ACTION
Authorize the City Manager to execute an agreement with Crosstown Electrical & Data Inc. to provide on-call repair services and routine maintenance for the advance traffic management and communication system for a three-year period beginning July 19, 2022 and expiring July 18, 2025, with a provision for two, one-year extensions exercisable by the City Manager, in an amount not to exceed $100,000 annually, and $500,000 for the term of the agreement, including extension periods, subject to non-substantive changes approved by the City Manager and City Attorney.
DISCUSSION
The Santa Ana Traffic Management Center (TMC) is composed of several computerized systems that control the traffic signals, closed circuit television cameras, and communication network. These systems utilize twisted pair cables, fiber optic cables, wireless, and other methods to provide communication between the TMC and field equipment. These communication systems require routine maintenance and emergency repairs as a result of malfunctions or damage that occurs due to obsolete equipment, traffic collisions, or construction activities.
A Request for Proposals (RFP) was issued on April 11, 2022 for on-call repair services and routine maintenance of the advance traffic management and communication system.
One proposal was received from the City’s current vendor, Crosstown Electrical & Data Inc., and evaluated by a three-member review panel composed of Public Works Agency staff. Scoring was based on firm experience, record of performing similar repair services, responsiveness to the RFP requirements, and completeness of the proposal. The Crosstown Electrical & Data Inc. proposal scored 95 points out of 100.
City Council 26 – 1 7/19/2022
Approve Agreement with Crosstown Electrical & Data, Inc.
July 19, 2022
Staff recommends awarding an agreement to Crosstown Electrical & Data Inc. because of their demonstrated experience and exceptional performance in delivering these same services to the City over the past five years. The cost of these services will be on a service request basis, where time and material is charged according to a set fee schedule.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
FISCAL IMPACT
Funds in the amount of $100,000 are available in the FY 22-23 Traffic Signal Maintenance Account (No. 02917620-62321) and budgeted annually in subsequent Fiscal Years, including the renewal options if exercised.
EXHIBIT(S)
1. Agreement with Crosstown Electrical & Data Inc.
Submitted By: Nabil Saba, P.E., Executive Director – Public Works Agency Approved By: Kristine Ridge, City Manager
Fiscal
Year
Accounting Unit
- Account No.
(Project No.)
Fund
Description
Accounting Unit -
Account
No. Description
Amount
2022-23 02917620-62321 Special Gas
Tax
Traffic Signal
Maintenance,
Maintenance & Repair
Improvement
$100,000
2023-24 02917620-62321 Special Gas
Tax
Traffic Signal
Maintenance,
Maintenance & Repair
Improvement
$100,000
2024-25 02917620-62321 Special Gas
Tax
Traffic Signal
Maintenance,
Maintenance & Repair
Improvement
$100,000
2025-26 02917620-62321 Special Gas
Tax
Traffic Signal
Maintenance,
Maintenance & Repair
Improvement
$100,000
2026-27 02917620-62321 Special Gas
Tax
Traffic Signal
Maintenance,
Maintenance & Repair
Improvement
$100,000
Total $500,000
City Council 26 – 2 7/19/2022
CONSULTANT AGREEMENT
CITY OF SANTA ANA
THIS AGREEMENT is made and entered into on this 19th day of July, 2022 by and between Crosstown Electrical & Data, Inc., (“Consultant”), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (“City”).
RECITALS
A. On April 11, 2022, the city issued Request for Proposal No. 22-031, by which it sought to retain a Consultant to perform on-call repair services for the Cities Advance Traffic Management System and Communication Systems.
B. Consultant represents that Consultant is able and willing to provide such services to the City.
C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
Consultant shall perform the services described in the scope of work that was included in RFP No. 22-031, which is attached hereto as Exhibit A and incorporated by reference.
2. COMPENSATION
a. City agrees to pay on an as-needed basis, and Consultant agrees to accept as total payment for its services for City, the rates and charges identified in Exhibit B The total amount to be expended during the term of this Agreement shall not exceed $500,000 for term of this Agreement, including any extension periods. This sum shall be comprised of an annual average of $100,000.
b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City.
3. TERM
City Council 26 – 3 7/19/2022
This Agreement shall commence on the date first written above for a three (3) year term with the option for the City to grant up to a two (2) one (1)-year renewals, exercisable by a writing by the City Manager and the City Attorney, unless terminated earlier in accordance with Section 15, below.
4. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an independent Consultant and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes.
5. OWNERSHIP OF MATERIALS
This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement.
Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk.
6. INSURANCE
Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor, his agents, representatives, employees or subcontractors.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
• Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with City Council 26 – 4 7/19/2022
limits no less than $5,000,000 per occurrence. If a general aggregate limit applies, either the general aggregatelimit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
• Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
• Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
If the Contractor maintains broader coverage and/or higher limits than the minimums shown above, the Entity requires and shall be entitled to the broader coverage and/or the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Entity.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The Entity, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connectionwith such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if notavailable, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used).
Primary Coverage
For any claims related to this contract, the Contractor’s insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers,officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.
Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the Entity.
Waiver of Subrogation
Contractor hereby grants to Entity a waiver of any right to subrogation which any insurer of said Contractor may acquire against the Entity by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may City Council 26 – 5 7/19/2022
be necessary to affect this waiverof subrogation, but this provision applies regardless of whether or not the Entity has received a waiver of subrogation endorsement from the insurer.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the Entity. The Entity may require theContractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or Entity.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the Entity.
Claims Made Policies (note – should be applicable only to professional liability, see below) If any of the required policies provide claims-made coverage:
1. The Retroactive Date must be shown, and must be before the date of the contract or thebeginning of contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Contractormust purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.
Verification of Coverage
Contractor shall furnish the Entity with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing allpolicy endorsements to Entity before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them.
The Entity reserves the right to require complete, certified copies of all required insurance policies,including endorsements required by these specifications, at any time.
Special Risks or Circumstances
Entity reserves the right to modify these requirements, including limits, based on the nature of therisk, prior experience, insurer, coverage, or other special circumstances.
City Council 26 – 6 7/19/2022
7. INDEMNIFICATION
Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Contractor, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Contractor’s services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor.
8. INTELLECTUAL PROPERTY INDEMNIFICATION
Consultant shall defend and indemnify the City, its officers, agents, representatives, and employees against any and all liability, including costs, for infringement of any United States’ letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by Consultant to the City pursuant to this Agreement.
9. RECORDS
Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement.
City Council 26 – 7 7/19/2022
10. CONFIDENTIALITY
If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. “Confidential Information” shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City.
11. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement.
12. NON-DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided under this Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations.
13. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein.
City Council 26 – 8 7/19/2022
14. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City’s ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Contractors retained by City.
15. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions:
a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product(s) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate.
b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement.
16. WAIVER
No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies.
17. JURISDICTION - VENUE
This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement.
18. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and City Council 26 – 9 7/19/2022
in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement.
19. NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons:
To City:
Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
Fax: 714- 647-6956
With courtesy copies to:
Nabil Saba
Executive Director, Public Works Agency
City of Santa Ana
20 Civic Center Plaza (M-21)
P.O. Box 1988
Santa Ana, California 92702
Fax: 714-647-5635
To Contractor:
A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded.
David P. Heermance
President
Crosstown Electrical & Data, Inc.
5454 Diaz St
Irwindale, CA 91706
Fax: 626-813-6693
City Council 26 – 10 7/19/2022
City Council 26 – 11 7/19/2022
EXHIBIT A
City Council 26 – 12 7/19/2022
City Council 26 – 13 7/19/2022
City of Santa Ana RFP 22-031
NOTICE INVITING PROPOSALS
NOTICE IS HEREBY GIVEN that proposals will be received from qualified firms for Advance Traffic Management System and Communication Systems On-Call Repair Services.
Responses to this Request for Proposals (RFP) must be submitted electronically to the PlanetBids system no later than May 2, 2022 at 12:00 p.m. Proposals received after this date/time will not be considered. It is the responsibility of the proposer to ensure that any proposals submitted have sufficient time to be received by the City of Santa Ana prior to this proposal due date and time.
Additionally, it is a requirement that hard copy proposals also be sent by courier service, mailed, or hand delivered in an enclosed sealed envelope and marked clearly with the following “SEALED PROPOSAL FOR
ADVANCE TRAFFIC MANAGEMENT SYSTEM AND COMMUNICATION SYSTEMS
ON-CALL REPAIR SERVICES
RFP NO. 22-031
IN THE CITY OF SANTA ANA
DO NOT OPEN WITH REGULAR MAIL.”
City of Santa Ana
Attn.: CESAR RODRIGUEZ
Public Works Agency; M-43
20 Civic Center Plaza; Ross Annex
Santa Ana, CA 92701
For further instructions regarding hard copy submission of proposals, refer to PlanetBids.
All notifications, requests for information, updates and addenda will be posted online on PlanetBids at https://www.planetbids.com/portal/portal.cfm?CompanyID=20137. Proposers shall be responsible for monitoring the site to obtain information regarding this solicitation. Failure to respond to required updates may result in a determination of a nonresponsive qualification.
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City of Santa Ana RFP 22-031
TABLE OF CONTENTS
I. INTRODUCTION / PROJECT DESCRIPTION 4
II. PROPOSAL TERMS AND CONDITIONS 7
A. EXAMINATION
B. EXECUTION OF AGREEMENT
C. PROPOSAL VALIDITY
D. PRE-CONTRACTUAL EXPENSES
E. JOINT OFFERS/SUBCONTRACTORS
F. DIR REGISTRATION
G. PREVAILING WAGES
H. PREVAILING WAGE, COMPLIANCE AND MONITORING
I. COMMUNITY WORKFORCE AGREEMENT
J. SAFETY PROGRAM REQUIREMENTS
III. INSTRUCTIONS TO PROPOSERS 11
A. CITY RESPONSIBILITIES
B. PROPOSER RESPONSIBILITIES
C. REQUEST FOR INFORMATION OR CLARIFICATION
D. ADDENDA
E. LICENSES & PERMITS
F. INSURANCE
G. INFORMATION PACKET
H. PRE-PROPOSAL MEETING
I. CITY RIGHT TO REJECT
J. BID PROTESTS
IV. SUBMITTAL REQUIREMENTS 13
A. GENERAL
B. PROPOSAL CONTENTS
1. STATEMENT OF QUALIFICATIONS
2. SCOPE OF SERVICES AND SCHEDULE
3. FEE PROPOSAL
4. CERTIFICATIONS
V. PROPOSAL REVIEW (CONTRACTOR SELECTION) 15
A. EVALUATION AND RATING
B. SELECTION
VI. AWARD AGREEMENT 16
A. REQUEST FOR COUNCIL ACTION
B. EXECUTION OF AGREEMENT
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City of Santa Ana RFP 22-031
VII. IMPLEMENTATION 16
A. KICK-OFF MEETING
B. NOTICE TO PROCEED
VIII. PUBLIC RECORDS 16
IX. APPENDIX
ATTACHMENT 1: SCOPE OF WORK
ATTACHMENT 2: AGREEMENT
ATTACHMENT 3: CERTIFICATION
ATTACHMENT 4: PROPOSERS CERTIFICATION AND PROPOSAL ITEM PRICING
I. INTRODUCTION / PROJECT DESCRIPTION
Nature of Work:
The City of Santa Ana is seeking a qualified firm to perform on-call repair services for the Cities Advance Traffic Management System and Communication Systems. A detailed Scope of Work is included in the Appendix of this RFP as Attachment 1.
Number of Proposals and Signature:
Five (5) hard copies are required to accompany an electronic submittal of the complete proposal package on PlanetBids. One of the hard copies shall be marked as “ORIGINAL” and be signed by a company official with the power to bind the company, and submitted to the City of Santa Ana. Please be explicit in identifying the appropriate person with legal authority to bind the company.
The Statement of Qualifications shall be limited to a maximum of (10) double-sided pages (excluding front and back covers, section dividers and attachments such as resumes, forms). Font size shall be minimum 11-point Arial. Proposal exhibits shall be maximum 11” x 17”.
Proposal Evaluation and Rating:
The criteria for evaluating the RFP submitted will take the following items into consideration:
Firm/Team Experience 30%
Understanding of Need 30%
Relevant Project Experience 30%
References 10%
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City of Santa Ana RFP 22-031
The City has established a proposal review committee to evaluate proposers based on the response to this RFP, which includes adherence to outlined directions and format, and the City evaluation criteria set forth above. A final score will be calculated for each submitted proposal and used to rank the proposers.
Project Funding:
Funding source is Gas Tax but may vary. Refer to Attachment 1 (Scope of Work) in the Appendix of this RFP.
Prevailing Wages:
In accordance with the California State Labor Code, prevailing wage rates apply. Copies of the prevailing rate of per diem wages are on file with the Public Works Agency and shall be made available to any interested party on request.
Term of Contract Agreement:
The City desires to enter into a contract with the top scoring firm year for an initial three (3) year term with a City option for two (2) one (1) year extension period. This term is outlined in the Standard Contractor Agreement, as contained in the Appendix of this RFP as Attachment 2.
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City of Santa Ana RFP 22-031
II. PROPOSAL TERMS AND CONDITIONS
By submitting a Proposal, the Proposer acknowledges that it has thoroughly examined and accepts the Terms and Conditions of this RFP as described below:
A. EXAMINATION
Proposer represents that it has thoroughly examined and become familiar with the services and responsibilities required in this RFP and that it is capable of effectively and efficiently performing quality work to achieve the City’s objectives. Any attachments referenced herein or any interpretations, clarifications or amendments subsequently posted in the relation to this RFP are fully incorporated.
B. EXECUTION OF AGREEMENT
The City and the selected Proposer will enter into an Agreement similar to that as shown in Attachment 2: Standard Agreement in the Appendix of this RFP. If a Proposer is unwilling or unable to execute an Agreement within thirty (30) days after being notified of selection under this RFP, the City reserves the right to select the next most qualified Proposer or call for new Proposals, whichever the City deems most appropriate.
C. PROPOSAL VALIDITY
Services, pricing and warranties indicated in a respondent’s Proposal must be valid for a period of 120 days after the submission of the Proposal.
D. PRE-CONTRACTUAL EXPENSES
Santa Ana shall not, in any event, be liable for any pre-contractual expenses incurred by Proposers in the preparation of its proposal.
E. JOINT OFFERS/SUBCONTRACTORS
Where two or more Proposers desire to submit a single Proposal in response to this RFP, they should do so on a prime sub-contractor basis. The City intends to contract with a single company and not with multiple companies doing business as a joint venture. Should the use of sub-contractors be offered, the Proposer shall provide the same assurances of competence for the sub-contractor plus the demonstrated ability to manage and supervise the subcontracted work. Sub-contractors shall not be allowed to further subcontract with others for work under the Agreement. The provisions of the Agreement shall apply to all sub-contractors in the same manner as the Proposer.
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F. DIR REGISTRATION
On-call emergency public work tasks completed as part of this RFP and proposal(s) submitted shall be subject to the following: No contractor or subcontractor may be listed on a proposal for a public works project (submitted on or after March 1, 2015) unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)]. No contractor or subcontractor may be awarded a contract for public work on a public works project (awarded on or after April 1, 2015) unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5. Any subsequent work that follows from this RFP is subject to compliance monitoring and enforcement by the Department of Industrial Relations. Contractors are further cautioned that certified payrolls shall be submitted electronically directly to the Department of Industrial Relations.
G. PREVAILING WAGES
In accordance with the California State Labor Code, prevailing wage rates apply.
The Director of the Department of Industrial Relations of the State of California has ascertained the prevailing rate of per diem wages in dollars, based on a working day of eight hours, for each craft or type of worker or mechanic needed to execute any construction, maintenance, or repair work, which may be awarded by Public Works. The current prevailing wage rates as adopted by the Director of the Department of Industrial Relations are incorporated herein and may be accessed at http://www.dir.ca.gov/ (General Prevailing Wage determination made by the Director of Industrial Relations / Pursuant to California Labor Code Part 7, Chapter 1, Article 2, Section 1770, 1773 and 1773.1). The Contractor is required to pay the prevailing wage rate referred to above and is responsible for selecting the craft/classification of workers which will be required to perform this service in accordance with the Contractor's method of performing the work. Pursuant to Section 1775 of the Labor Code (State of California) Contractor shall forfeit $50 for each calendar day, or portion thereof, for each worker paid less than the stipulated prevailing wage rates for any public work done under this Contract or by any subcontractor.
H. PREVAILING WAGE COMPLIANCE AND MONITORING
Contractor shall be aware of the requirements of the California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirement on “public works” and “maintenance” projects. Since the services are being performed as part of an applicable “public works” or “maintenance” project, as defined by Prevailing Wage Laws and since the total compensations is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws.
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Contractor shall be in compliance with the Prevailing Wages and requirements effective the due date of this proposal submittal and shall pay prevailing rates of per diem wages according to state law at all times throughout the term of any future agreement with the City. Contact shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Contractor’s principal place of business and at the job site. Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
I. COMMUNITY WORKFORCE AGREEMENT
On August 15, 2017, the Santa Ana City Council approved a Community Workforce Agreement with the Los Angeles/Orange Counties Building and Construction Trade Council and the Signatory Craft Councils and Unions. The provisions of the agreement would apply to all construction and major rehabilitation work pursuant to “Prime MultiTrade” construction contracts that exceed $250,000 and all subcontracts from these prime multi-trade contracts. The agreement also applies to all “Prime Specialty” contracts (single trade contracts) that exceed $100,000 and all subcontracts from these prime specialty contracts. Contractors working on task orders over the above thresholds must, in filling craft job requirements, utilize and be bound by the registration facilities and referral systems established and authorized by the Unions who are signatory to the agreement. This is commonly referred to a Union hiring hall. Contractors retain the right to reject any applicant referred to them through the job referral system, determine competency of all employees, to determine the number of employees required, and the duties of such employees. If any Union’s registration and referral system does not fulfill the requirements for specific classifications requested by any Contractor within 48 hours, the Contractor may employ applicants meeting such classifications from any other available source.
J. SAFETY PROGRAM REQUIREMENTS
The Proposer shall be solely responsible for ensuring that all work performed under the contract is performed in strict compliance with all applicable Federal, State and local occupational safety regulations. The Contractor shall provide at its expense all safeguards, safety devices and protective equipment, and shall take any and all actions appropriate to providing a safe Construction site.
The following is also required in addition to being in compliance with the above and related latest editions (unless noted otherwise) of the standard specifications and/or plans in the APWA “Greenbook (2018 Edition)” CA MUTCD, AGC, SSPWC, TEES, CALTRANS Standard Plans and Standard Specifications, CALTRANS Highway Design and Traffic Manuals, as listed below and as related to the standard care of the industry:
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City of Santa Ana RFP 22-031
Abbreviation Word or Words
AGC ................. Associated General Contractors of America APWA ................ American Public Works Association ASA ................. American Standards Association
CA MUTCD ....... California Manual on Uniform Traffic Control Devices CALTRANS ....... California Department of Transportation FHWA ................ Federal Highway Administration
FRA ................. Federal Rail Administration
FTA ................. Federal Transit Authority
JITT ............... Just-In-Time Training
NPDES ............... National Pollutant Discharge Elimination System SSPWC ............... Standard Specifications for Public Works Construction TEES ................. Transportation Electrical Equipment Specifications PACP ................. Pipe Assessment & Certification Program
1. The Proposer shall train all employees, or subcontractor personnel in the work practices necessary to safely perform his or her job.
2. The Proposer shall identify all known potential hazards related to the work performed and train all employees and subcontractor personnel on how to handle the potential hazards.
3. The Proposer, their employees and subcontractors shall follow all safety rules and safe work practices.
4. The Proposer will immediately notify the City of any significant and/or unusual hazards found during the course of work.
5. The Proposer shall submit copies of Safety Data Sheets (SDS) for all hazardous materials to be utilized on site in the performance of work. The Proposer is solely responsible for the legal disposal of hazardous waste generated in the performance of their work.
Safety Indemnification: To the extent allowed by law, the Proposer agrees to defend, indemnify and hold harmless the City, its officers, employees and agents from and against any and all investigations, complaints, citations, liability, expense (including defense costs and legal fees), claims and/or causes of action for damages of any nature whatsoever, including but not limited to injury or death to employees of the Proposer, its subcontractors or City, attributable to any alleged act or omission of the Proposer or its subcontractors which is in violation of any Cal OSHA regulation. The obligation to defend, indemnify and hold harmless includes all investigations and proceedings associated with purported violations of Section 336.10 of Title 8 of the California Code of Regulations pertaining to multi-employer work sites. The City may deduct from any payment otherwise due the Proposer any costs incurred or City Council 26 – 21 7/19/2022
City of Santa Ana RFP 22-031
anticipated to be incurred by the Agency, including legal fees and staff costs, associated with any investigation or enforcement proceedings brought by Cal OSHA arising out of the assigned work
III. INSTRUCTIONS TO PROPOSERS
A. CITY RESPONSIBILITIES
The City will provide information in its possession relevant to preparation of required information in this RFP. The City will provide only the staff assistance and documentation specifically referred to herein.
B. PROPOSER RESPONSIBILITIES
Point of Contact: The selected proposer will assume responsibilities for all services in its proposal. The selected proposer shall identify a sole point of contact with the greatest knowledge concerning the required service operations and contractual matters, including payment of all charges resulting from the Agreement. Contact information such as email and phone number must be included into the proposal.
Evidence of Financial Capacity: Proposer may be requested to submit its most recent audited financial statement, evidencing proposer’s financial capacity to fully perform the required services, including provision of equipment and personnel expenses over a ninety (90) day period. If said financial statement does not reflect full ninety (90) day operational capacity, proposer may include a letter of credit as evidence of supplemental capacity.
C. REQUEST FOR INFORMATION OR CLARIFICATION
All questions or requested clarifications shall be made only in writing to the Q&A section located in PlanetBids no fewer than five (5) calendar days prior to the date and time set for opening of proposals. No verbal requests or responses will be accepted. Significant interpretations or clarifications will be addressed via addenda to this RFP.
D. ADDENDA
Any changes in RFP from the date of release to date of submittal will result in an addendum or amendment. Notification of such addendum or amendment shall be posted on PlanetBids at https://www.planetbids.com/portal/portal.cfm?CompanyID=20137 as set forth in the Notice Inviting Proposals. Addenda shall become part of the agreement documents.
E. LICENSES & PERMITS
The selected proposer shall be required to obtain a City of Santa Ana Business license within ten (10) business days of selection and must provide a copy to the City’s project manager or designee prior to commencing any work in Santa Ana.
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Additionally, Proposer will be responsible for obtaining any licenses/permits required by the Scope of Work.
F. INSURANCE
The Selected Proposer shall provide the required evidence of insurance coverage as set forth in the Scope of Work within ten (10) business days after receipt of notice that the contract has been awarded. Failure to provide the required insurance certificates shall be cause for the annulment of the award and the forfeiture of the proposal guaranty. The City will provide the Selected Proposer with a “New Vendor Checklist”, which outlines insurance requirements.
Risk Management has the right to modify minimum insurance requirements if scope of services are changed or altered. A change in scope of services may increase or reduce minimum insurance requirements based on the City’s risk exposure.
G. PAYMENT INFORMATION PACKET
The selected proposer shall return a completed payment information packet within ten (10) business days after the successful proposer has received notice that the contract has been awarded.
H. PRE-PROPOSAL MEETING
Should a pre-proposal meeting be scheduled, the date, time, and location is identified on the cover page of this RFP. The meeting will include discussion of the project scope and a question-and-answer session. It is highly recommended that the Proposer’s key team members attend this meeting. Significant interpretations or clarifications will be addressed via addenda to this RFP, as described above in “Section D: Addenda.” I. CITY RIGHT TO REJECT
The City reserves the right to reject any or all proposals submitted and no representation is made hereby that any contract will be awarded pursuant to this RFP or otherwise.
The City reserves the right to accept or reject the combined or separate components of this proposal in part or in its entirety or to waive any minor inconsistency, informality or technical defect in the proposal.
The City reserves the right to reject, replace, and approve any and all subcontractors. All subcontractor(s) shall be identified in response to this RFP. Subcontractors shall be the responsibility of the successful proposer and the City shall assume no liability of such subcontractors.
J. BID PROTESTS
Proposers with concerns or rebuttal of any staff determination of non-responsiveness or non- responsibility may submit, in writing within five (5) business days, to the Project City Council 26 – 23 7/19/2022
City of Santa Ana RFP 22-031
Manager, any concerns regarding the RFP process or staff determination. Such writing shall be considered by the City Manager or her designated representative, and may be acted upon within five (5) business days. If no action is taken within such time, there shall be no change to the staff determination. The exercise by the Proposer of its right to submit written concerns shall be a condition precedent to seeking judicial review of any award of a contract hereunder.
IV. SUBMITTAL REQUIREMENTS
A. GENERAL
1. The number of Proposal Copies and signature is specified in:
RFP SECTION I - INTRODUCTION / PROJECT DESCRIPTION
2. Deadline:
Proposals are due to the City of Santa Ana at the date, time, and location specified in the Notice Inviting Proposals.
B. PROPOSAL CONTENTS
The proposal format and page limitation, if any, is specified in:
RFP SECTION I - INTRODUCTION / PROJECT DESCRIPTION
1. STATEMENT OF QUALIFICATIONS: The Statement of Qualifications portion of the Proposal shall be limited to a MAXIMUM of (10) DOUBLESIDED PAGES (excluding front and back covers, section dividers and attachments such as resumes, forms). Font size shall be minimum 11-point Arial. Proposal exhibits shall be maximum 11” x 17”. The Statement of Qualifications includes the following:
a. Cover Letter: Proposals shall include a letter signed by a principal or authorized representative who can make legally binding commitments for the entity.
b. Contract Agreement Statement: Proposal shall include a statement outlining your concurrence or concerns with any and all provisions contained in the Agreement attached herein as Attachment 2 in the Appendix.
c. Construction Company and Team Experience: Proposal shall include a profile of the Construction Company’s experience. Include resumes of City Council 26 – 24 7/19/2022
City of Santa Ana RFP 22-031
project team/sub-consultants that will be providing services which outline their technical and design experience. At a minimum, this should include the project manager/principal agent, associates in charge when project manager/principal agent is unavailable, key personnel, Construction Company size, and an organization chart identifying only those who will perform work for the proposed project and the percentage of each individual’s time devoted to this project. The project manager/principal agent shall be the primary contact person to represent your Construction Company and include any relevant on-call or emergency contracts with other local agencies.
d. Understanding of Need: Proposal shall include an outline, which demonstrates the Construction Company’s understanding of the work.
This outline should include anticipated approach, tasks necessary for successful completion, deliverables, and suggestions or special concerns that the City should be made aware of. Identify any assumptions and/or exclusions used in preparation of the scope of work and associated fee estimate.
e. Financial Capacity and Availability: To demonstrate a solid financial capacity and availability, the proposer shall include a list of four (4) relevant positive bond ratings demonstrating financial stability and reliability along with a list of past projects for which the company has reliably been able to respond to an agency’s on-call and/or emergency needs within the last five (5) years. Project information should include project description, year completed, client name, along with a person to contact and their telephone number/email address.
f. References: Proposals shall include a listing of relevant projects with references for three public entities with valid current emails for which Proposer has performed similar work within the past five (5) years.
2. SCOPE OF SERVICES AND SCHEDULE:
Proposal shall include a Scope of Services and Schedule which details the work phases to be completed, the tasks to be accomplished, the deliverables to be provided, and the schedule / timeline to complete the project, based upon the requested Scope of Work detailed in Attachment 1 of this RFP.
3. FEE PROPOSAL:
The fee proposal shall be submitted separate and concurrently with the technical proposal, both submitted electronically in PlanetBids and as a hard copy in a separately sealed envelope, clearly labeled as “Fee Proposal.” This shall include the Constuction Company’s Standard Hourly Fee Schedule, a table outlining City Council 26 – 25 7/19/2022
City of Santa Ana RFP 22-031
the tasks and team hourly effort for each of the major tasks, and a Project Fee Schedule as outlined in the Scope of Work.
The fee proposal will not be opened until the proposals have been evaluated by the proposal selection committee. The City will select the consultant based on qualifications, and then negotiate a contract price based on available funding.
4. CERTIFICATIONS:
The following forms shall be signed and included as part of the proposal submittal package:
• Attachment 3-1: Non-Collusion Affidavit
• Attachment 3-2: Non-Lobbying Certification
• Attachment 3-3: Non-Discrimination Certification
• Attachment 3-4: Contractor’s Licensing and Registration Statement • Attachment 3-5: Prevailing Wage Compliance and Monitoring Statement • Attachment 3-6: Ownership Affidavit
• Attachment 3-7: List of Sub-contractors (If included during time of original proposal. Note: As applicable, this list will need to be updated and re-submitted every time a new Task Order
is requested by the City from the prime contractor to
reflect the scope of work of the requested Task Order.) • Attachment 3-8: References
• Attachment 3-9: Statement Regarding Apprenticeship Requirements • Attachment 3-10: Statement Regarding Anti-Kickback Requirements • Attachment 3-11: Public Contract Code Section 10162 Questionnaire • Attachment 3-12: Statement Regarding Community Workforce Agreement (CWA) Requirements
V. PROPOSAL REVIEW (CONTRACTOR SELECTION)
A. EVALUATION AND RATING
The criteria for evaluating the proposals are specified in:
RFP SECTION I - INTRODUCTION / PROJECT DESCRIPTION.
B. SELECTION
The selection committee will be comprised of at least (3) City staff from multiple departments. The committee may or may not interview the top ranking proposers. The City will recommend award of contracts to the proposers who will provide the best quality and value to the City. The City reserves the right to begin negotiations and enter into a contract without interview or further discussions.
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VI. AWARD OF AGREEMENT
A. REQUEST FOR COUNCIL ACTION
Following evaluation and rating by the proposal review committee, the Executive Director of Public Works will recommend award of an agreement to the proposer providing the best quality and value to the City.
B. EXECUTION OF AGREEMENT
A standard agreement is included as Attachment 2: Standard Agreement in the Appendix of this RFP. “Proposer” will hereinafter be referred to as “Contractor” in standard agreement. The term of the agreement will begin after the agreement is fully executed, and all required insurance and documents and contents of the vendor registration and payment information packet have been received and approved.
VII. IMPLEMENTATION
NOTICE TO PROCEED
Prior to issuance of a formal Notice to Proceed (NTP), Consultants shall provide all required bonds, insurance documents, and contents of the Information Packet for review and approval by the City.
For “On-Call” contracts, individual City Project Managers will request project/task specific proposals from Consultants on an as-needed basis. Proposals will then be evaluated by City staff and written NTPs will be issued accordingly per each task order.
VIII. PUBLIC RECORDS
All data, documents and other products used, developed, or produced during response preparation of this RFP will become property of the City. All responses to this RFP shall become property of the City. Proposer information identified as proprietary information be maintained confidential, to the extent allowed under the California Public Records Act.
Proposals will become public record after award of contract. Proposer information identified as proprietary information shall be maintained confidential, to the extent allowed under the California Public Records Act.
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Page A1-1
Appendix
ATTACHMENT 1
SCOPE OF WORK
CITY OF SANTA ANA
REQUEST FOR PROPOSALS
FOR
ADVANCE TRAFFIC MANAGEMENT SYSTEM AND
COMMUNICATION SYSTEMS ON-CALL REPAIR SERVICES
RFP NO. 22-031
A. DESCRIPTION
The Santa Ana’s Advanced Traffic Management System (ATMS) monitors and controls all of the traffic signals and CCTV’s within the City. ATMS encompasses three major subsystems, Traffic Signal System, Closed Circuit Television (CCTV) system and the Transportation Information System (TIS). Communication between the Traffic Management Center (TMC) and the field equipment are established via fiber optic, twisted-pair interconnect, wireless broadband and limited use of telephone (T1) lines.
The main equipment for the City’s ATMS is located in the TMC in City Hall. The City also maintains a Remote TMC in adjacent Ross Annex building. The TMC has a dedicated local area network that consists of computer servers, computer workstations, managed switches and routers, video processing units, hardwire interconnects and fiber optic patch panels. The City’s current traffic signal system is Econolite Centracs.
The City’s Closed Circuit Television (CCTV) System consists of Cohu, Axis and Bosch cameras and video encoders. The City’s Video Management System is Milestone XProtect Corporate.
The City’s communication infrastructure consists of twisted pair cable, single mode fiber optic cable, wireless broadband antennas, T1 equipment and other communication equipment. The hardwire interconnect and fiber optic cables are generally in dedicated conduit from the TMC to controller cabinets and communication HUB’s in the field.
B. SCOPE OF WORK
In general, the on-call Contractor will perform emergency repairs due to malfunctions or damages to the systems and communication equipment and cables. Majority of the work are anticipated for field equipment repairs. The scope of work includes but not limited to the followings:
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Page A1-2
The Contractor is required to troubleshoot, repair and procure replacement or upgraded equipment to re-establish and/or improve the performance and reliability of the communication and networking systems. The networking system includes fiber optic Ethernet switches, routers, firewalls and associated equipment/computers that make up the network.
The Contractor is required to procure and assist in integrating networking and communication hardware on an as needed basis for the TMC. The Contractor is required to perform field communication system repairs that include installing conduit and cables; splicing of fiber optic and hard interconnect cables and installing new or replacing old splice enclosures. Fiber optic splicing shall be by fusion method and Hardwire Interconnect splice shall be done using weather resistant connector (AMP Picabond Connector)
The Contractor is required to troubleshoot/repair and/or install CCTV cameras. The Contractor is required to troubleshoot/repair and/or install wireless communication equipment.
The Contractor shall furnish all tools, equipment, apparatus, facilities, labor, services and materials to perform all work necessary to maintain/repair the ATMS and communication systems.
The contractor may utilize subcontractors and/or manufacturers with specific communication, network or related expertise to provide the needed services. Work to be done is either based on time and material or lump sum per task, to be determined prior to each authorization.
C. LICENSES
The Contractor must possess or obtain a valid California Class C-10 Electrical Contractor license prior to the scheduled award date of this contract.
D. SERVICE PERSONNEL
The Contractor shall provide qualified service personnel or subcontractor to maintain and to service all ATMS equipment as described. Personnel shall have at least a year of experience of maintaining and troubleshooting ATMS equipment and networking equipment such as Ethernet switches, routers and firewalls.
The Contractor shall include the ATMS maintenance personnel’s qualifications in the bid. The City will notify the Contractor in the City’s sole opinion; personnel proposed for any ATMS maintenance are not qualified to work on these systems. Within thirty (30) days after City makes the determination the Contractor shall hire qualified Sub-Contractor(s) specialized in ATMS equipment and networking for troubleshooting and repair without any additional compensation from the City.
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Page A1-3
E. EQUIPMENT
The Contractor shall have access to lift/boom truck with a minimum of 50-foot reach capability to access cameras, pan/tilt units.
F. WORKING HOURS
The Contractor’s activities shall be confined to the following hours:
From 7:00 a.m. to 5:00 p.m., Monday through Friday, within work areas having either no lane closures or having continuous lane closures, i.e. 24-hour closures lasting more than one day.
From 9:00 a.m. to 3:00 p.m., Monday through Friday, for work requiring temporary lane closures, i.e. those having less than a 24-hour duration, and for work at major intersections.
Deviation from these hours/days shall not be permitted without the prior consent of the Engineer, except in emergencies involving immediate hazard to be persons or property, or as specified otherwise
G. CITY RESPONSIBILITIES
The City will provide as-built plans and any other material related to the ATMS and Communication Systems to facilitate the repair work.
H. FEE SCHEDULE
In addition to Section III.B.3 (Submittal Requirements: Fee Proposal) fee schedule shall be structured per Attachment 4 Proposers Certification and Proposal Item Pricing.
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Appendix
ATTACHMENT 2
STANDARD AGREEMENT
CONTRACTOR AGREEMENT
CITY OF SANTA ANA
THIS AGREEMENT is made and entered into on this day of , 2022 by and between ___________________________________________________________, (“Contractor”), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (“City”).
RECITALS
A. The City desires to retain a Contractor having special skill and knowledge in the field of On-Call Advance Traffic Management Communication System repair services.
B. Contractor represents that Contractor is able and willing to provide such services to the City.
C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
Contractor shall perform during the term of this Agreement, the tasks and obligations including all labor, materials, tools, equipment, and incidental customary work required to fully and adequately complete the services described and set forth in Scope of Services - Exhibit A, attached hereto and incorporated by reference.
2. COMPENSATION
a. City neither warrants nor guarantees any minimum or maximum compensation to the Contractor under this Agreement. Contractor shall be paid only for actual services performed under this agreement at the rates and charges identified in exhibit B. Contractor is one of XX contractors selected to provide services on an on-call basis under RFP No. 22-031 and addenda thereto. The total compensation for any services provided by the contractors selected under RFP No. 22-031 shall not exceed the amount of $X,XXX,XXX during the term of this agreement, including any extension periods.
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b. Payment by City shall be made within 45 days (forty-five) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures.
Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City.
3. TERM
This Agreement shall commence on the date first written above and terminate on _______________ for an initial three (3) year term with the option for the City to grant up to two (2), one (1) year renewals, exercisable by a writing by the City Manager and the City Attorney, unless terminated earlier in accordance with Section 16, below.
4. PREVAILING WAGES
Contractor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. If the services being performed are part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
5. INDEPENDENT CONTRACTOR
Contractor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes.
6. OWNERSHIP OF MATERIALS
This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Contractor under this Agreement (“Documents & Data”). Contractor shall require all subcontractors to agree in writing that City is granted a non-exclusive and City Council 26 – 32 7/19/2022
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perpetual license for any Documents & Data the subcontractor prepares under this Agreement.
Contractor represents and warrants that Contractor has the legal right to license any and all Documents & Data. Contractor makes no such representation and warranty in regard to Documents & Data which were provided to Contractor by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk.
7. INSURANCE
Prior to undertaking performance of work under this Agreement, Contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below:
1. Commercial General Liability (“CGL”) Insurance- Insurance Services Office (ISO) Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $5,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit..
2. Automobile Liability Insurance- Insurance Services Office Form CA 0001 covering Code 1 (any auto), with limits no less than $5,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation Insurance- as required by the State of California, with Statutory Limits, and Employers’ Liability insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease.
4. Builder’s Risk (Course of Construction) insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions.
5. Professional Liability Insurance (if Design/Build), with limits no less than $2,000,000 per occurrence or claim, and $2,000,000 policy aggregate.
6. Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions (if project involves environmental hazards) with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate.
If the contractor maintains broader coverage and/or higher limits than the minimums shown above, the Entity requires and shall be entitled to the broader coverage and/or the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Entity A. Self-Insured Retentions - Self-insured retentions must be declared to and approved by the Entity. The Entity may require the Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or Entity.
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B. The insurance policies required by this Agreement are to contain, or be endorsed to contain, the following provisions:
1) The Entity, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired, or borrowed by or on behalf of the Contractor.
General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10, CG 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
2) For any claims related to this project, the Contractor’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or selfinsurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it. 3) Each insurance policy required by this clause shall provide that coverage shall not be canceled, except with notice to the Entity.
C. Builder’s Risk (Course of Construction) Insurance - Contractor may submit evidence of Builder’s Risk insurance in the form of Course of Construction coverage. Such coverage shall name the Entity as a loss payee as their interest may appear.
If the project does not involve new or major reconstruction, at the option of the Entity, an Installation Floater may be acceptable. For such projects, a Property Installation Floater shall be obtained that provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment. The Property Installation Floater shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the Entity’s site.
D. Claims Made Policies – (If at all possible avoid and require occurrence type CGL policies) - If any coverage required is written on a claims-made coverage form:
1) The retroactive date must be shown, and this date must be before the execution date of the contract or the beginning of contract work.
2) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of contract work. 3) If coverage is cancelled or non-renewed, and not replaced with another claimsmade policy form with a retroactive date prior to the contract effective, or start of work date, the Contractor must purchase extended reporting period coverage for a minimum of five (5) years after completion of contract work. 4) A copy of the claims reporting requirements must be submitted to the Entity for review.
5) If the services involve lead-based paint or asbestos identification/remediation, the City Council 26 – 34 7/19/2022
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Contractors Pollution Liability policy shall not contain lead-based paint or asbestos exclusions. If the services involve mold identification/remediation, the Contractors Pollution Liability policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.
E. Acceptability of Insurers - Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best rating of no less than A: VII, unless otherwise acceptable to the Entity.
F. Waiver of Subrogation - Contractor hereby agrees to waive rights of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the Entity for all work performed by the Contractor, its employees, agents and subcontractors.
G. Verification of Coverage- Contractor shall furnish to City with original certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effective coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to Entity before work begins. However, failure to obtain the required documents prior to work beginning shall not waive the Contractor’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
H. Subcontractors- Contractor shall require and verify that all subcontractors maintain insurance meeting all requirements stated herein, and Contractor shall ensure that Entity is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13.
I. Special Risks or Circumstances- Entity reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other circumstances.
8. INDEMNIFICATION
Contractor agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Contractor, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Contractor City Council 26 – 35 7/19/2022
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further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Contractor’s services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor.
9. INTELLECTUAL PROPERTY INDEMNIFICATION
Contractor shall defend and indemnify the City, its officers, agents, representatives, and employees against any and all liability, including costs, for infringement of any United States’ letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by Contractor to the City pursuant to this Agreement.
10. RECORDS
Contractor shall keep records and invoices in connection with the work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Contractor under this Agreement. All such records and invoices shall be clearly identifiable. Contractor shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Contractor under this Agreement.
11. CONFIDENTIALITY
If Contractor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Contractor agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. “Confidential Information” shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Contractor disclosed in a publicly available source; (c) is in rightful possession of the Contractor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Contractor without reference to information disclosed by the City.
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12. CONFLICT OF INTEREST CLAUSE
Contractor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement.
13. NON-DISCRIMINATION
Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided under this Agreement. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations.
14. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Contractor or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein.
15. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City’s ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Contractors retained by City.
16. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services performed by Contractor prior to receipt of such notice of termination, subject to the following conditions:
a. As a condition of such payment, the Executive Director may require Contractor to City Council 26 – 37 7/19/2022
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deliver to the City all work product(s) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Contractor consents to the City's use thereof for such purposes as the City deems appropriate.
b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement.
17. WAIVER
No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies.
18. JURISDICTION - VENUE
This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement.
19. PROFESSIONAL LICENSES
Contractor shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Contractor shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement.
20. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney’s fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement.
21. NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by City Council 26 – 38 7/19/2022
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first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons:
To City:
Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
Fax: 714- 647-6956
With courtesy copies to:
Nabil Saba
Executive Director, Public Works Agency
City of Santa Ana
20 Civic Center Plaza (M-21)
P.O. Box 1988
Santa Ana, California 92702
Fax: 714-647-5635
To Contractor:
A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded.
First & Last Name
Title
Contractor Firm Name
Address
City, State, Zip
Fax:
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written.
ATTEST: CITY OF SANTA ANA
Daisy Gomez Kristine Ridge
Clerk of the Council City Manager
APPROVED AS TO FORM:
SONIA R. CARVALHO CONTRACTOR:
City Attorney
By:
John Funk
Assistant City Attorney (title)
Tax ID#
RECOMMENDED FOR APPROVAL:
Nabil Saba
Executive Director
Public Works Agency
(name)
(title)
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EXHIBIT A
SCOPE OF SERVICES
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EXHIBIT B
COMPENSATION
Fee Proposal including hourly rates if applicable
City Council 26 – 42 7/19/2022
Appendix
ATTACHMENT 3-1: NON-COLLUSION AFFIDAVIT
CERTIFICATIONS
City of Santa Ana RFP 22-031
Page A3-1
NON-COLLUSION AFFIDAVIT
(Title 23 United States Code Section 112 and
Public Contract Code Section 7106)
To the CITY OF SANTA ANA DEPARTMENT OF PUBLIC WORKS
In accordance with Title 23 United States Code Section 112 and Public Contract Code 7106 the BIDDER declares that the bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that the BIDDER has not directly or indirectly induced or solicited any other BIDDER to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived or agreed with any BIDDER or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the BIDDER has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the BIDDER or any BIDDER, or to fix any overhead, profit, or cost element of the bid price, or of that of any other BIDDER, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all statements contained in the bid are true; and, further, that the BIDDER has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid.
Note: The above Non-collusion Affidavit is part of the Proposal. Signing this Proposal on the signature portion thereof shall also constitute signature of this Non-collusion Affidavit. BIDDERS are cautioned that making a false certification may subject the certifier to criminal prosecution.
Signed
State of California
County of
Subscribed and sworn to (or affirmed) before me on this day of , 20 , by before me.
, proved to me on the basis of satisfactory evidence to be the person(s) who appeared Notary Public Signature Notary Public Seal
City Council 26 – 43 7/19/2022
Appendix
ATTACHMENT 3-2: NON-LOBBYING CERTIFICATION
CERTIFICATIONS
City of Santa Ana RFP 22-031
Page A3-2
The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:
1. No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement.
2. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence any officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal contract, grant loan, loan or cooperative agreement, the undersigned shall complete and submit a “Disclosure of Lobbying Activities”.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U. S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such sub recipients shall certify and disclose accordingly.
Firm
Signed and Printed Name:
Title
Date
City Council 26 – 44 7/19/2022
Appendix
ATTACHMENT 3-3: NON-DISCRIMINATION CERTIFICATION
CERTIFICATIONS
City of Santa Ana RFP 22-031
Page A3-3
The undersigned consultant or corporate officer, during the performance of this contract, certifies as follows:
1. The Consultant shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Consultant shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without, regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
2. The Consultant shall, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin.
3. The Consultant shall send to each labor union or representative of workers with which he/she has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers’ representatives of the Consultant’s commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
4. The Consultant shall comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
5. The Consultant shall furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his/her books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation, to ascertain compliance with such rules, regulations, and orders.
6. In the event of the Consultant’s non-compliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, the contract may be canceled, terminated, or suspended in whole or in part and the Consultant may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Execution Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulations, or order of the Secretary of Labor, or as otherwise provided by law.
7. The Consultant shall include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted City Council 26 – 45 7/19/2022
City of Santa Ana RFP 22-031
Page A3-4
by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontract or purchase order as the administering agency may direct as means of enforcing such provisions, including sanctions for noncompliance; provided, however, that in the event the Consultant becomes involved in, or is threatened with, litigation with a sub-consultant or vendor as a result of such direction by the administering agency, the Consultant may request that the United States enter into such litigation to protect the interests of the United States.
8. Pursuant to California Labor Code Section 1735, as added by Chapter 643 Stats. 1939, and as amended,
No discrimination shall be made in the employment of persons upon public works because of race, religious creed, color, national origin, ancestry, physical handicaps, mental condition, marital status, or sex of such persons, except as provided in Section 1420, and any consultant of public works violating this Section is subject to all the penalties imposed for a violation of the Chapter.
Signed:
Title:
Firm:
Date:
City Council 26 – 46 7/19/2022
Appendix
ATTACHMENT 3-4: CONTRACTOR’S LICENSING AND REGISTRATION
STATEMENT
City of Santa Ana RFP 22-031
Page A3-5
CONTRACTOR’S LICENSING AND REGISTRATION STATEMENT
The undersigned contractor, or corporate officer, declares under penalty of perjury that he/she and all his/her subcontractors are registered with the State of California Department of Industrial Relations (DIR), and that the following is true and correct.
Contractor’s Name:
Business Address:
Business E-Mail Address:
Telephone:
State Contractor’s License No. and Class:
License Expiration Date:
State Dept. of Industrial Relations (DIR)
Registration No.:
State Dept. of Industrial Relations (DIR)
Registration Expiration Date:
Signed:
Title:
City Council 26 – 47 7/19/2022
Appendix
ATTACHMENT 3-5: PREVAILING WAGE COMPLIANCE AND MONITORING
STATEMENT
City of Santa Ana RFP 22-031
Page A3-6
PREVAILING WAGE COMPLIANCE AND MONITORING STATEMENT
Contractor is aware of the requirements of California Labor Code Section 1720, et seq., as well as California Code of Regulations, Title 8, Section 16,000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. Since the services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws.
City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the services available to interested parties upon request, and shall post copies at the Contractor’s principal place of business and at the project site.
Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
The undersigned certifies that the foregoing is true and correct.
Name of Firm
Signature of
CONTRACTOR
Title
(if an individual, so state)
City Council 26 – 48 7/19/2022
Appendix
ATTACHMENT 3-6: OWNERSHIP AFFIDAVIT
City of Santa Ana RFP 22-031
Page A3-7
OWNERSHIP AFFIDAVIT
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS:
CITY OF SANTA ANA )
, being duly sworn, deposes and says:
INDIVIDUAL That he/she is the party making the foregoing proposal:
PARTNERSHIP That he/she is a member of the co-partnership firm designated as:
and who has been and is duly vested with the authority to make and execute instruments for the copartnership by:
who constitute the other members of the co-partnership. CORPORATION That he is of:
a corporation which is making the foregoing proposal:
JOINT VENTURE That he is of:
one of the parties making the foregoing proposal as a joint venture, and the he/she has been and is duly vested with the authority to execute instruments for an on behalf of the parties making said bid who are:
that such a bid is genuine and not collusive or sham, and has not in any manner sought by collusion to secure any advantage against the City of Santa Ana or any person interested in the proposed contract, for himself or any other person.
Signature of CONTRACTOR
Subscribed and sworn to before me this day of 20
Signature of officer Administering Oath (Notary Public) City Council 26 – 49 7/19/2022
Appendix
ATTACHMENT 3-7: LIST OF SUB-CONTRACTORS
City of Santa Ana RFP 22-031
Page A3-8
LIST OF SUB-CONTRACTORS
Section 4100 et. seq. of the Public Contract Code requires listing of all subcontractors with the proposal/bid for all subcontract work exceeding the following amount:
o Streets, highways including bridge projects: ½% of the bid or $10,000, whichever is greater o Buildings, parks, or other projects: ½% of the bid
Section 1725.5 of the Public Contract Code requires all Subcontractors be registered with the State Department of Industrial Relations (DIR).
CONTRACTOR proposes to subcontract certain portions of the work to the firms listed below:
Name Name
License #/Exp. License #/Exp.
DIR Reg. #/Exp. DIR Reg. #/Exp.
Location Location
Phone Phone
Type Of Work Type Of Work
Amount $ Amount $
Name Name
License #/Exp. License #/Exp.
DIR Reg. #/Exp. DIR Reg. #/Exp.
License # License #
Location Location
Phone Phone
Type Of Work Type Of Work
Amount $ Amount $
Name Name
License #/Exp. License #/Exp.
DIR Reg. #/Exp. DIR Reg. #/Exp.
License # License #
Location Location
Phone Phone
Type Of Work Type Of Work
Amount $ Amount $
Signature of CONTRACTOR
City Council 26 – 50 7/19/2022
Appendix
ATTACHMENT 3-8: REFERENCES
City of Santa Ana RFP 22-031
Page A3-9
REFERENCES
The following are the names, addresses, and telephone numbers for THREE public agencies for which the CONTRACTOR has performed similar work within the past three years.
1. Name and Address of Owner.
Name and Telephone Number of person familiar with project.
Contract Amount Type of Work Date Completed
2. Name and Address of owner.
Name and Telephone Number of person familiar with project.
Contract Amount Type of Work Date Completed
3. Name and Address of owner.
Name and Telephone Number of person familiar with project.
Contract Amount Type of Work Date Completed
The following are the names, addresses, email addresses, and telephone numbers of all brokers and sureties from whom CONTRACTOR intends to procure insurance and bonds.
City Council 26 – 51 7/19/2022
Appendix
ATTACHMENT 3-8: REFERENCES
City of Santa Ana RFP 22-031
Page A3-10
REFERENCES, (CONTINUED)
The following are the names, addresses, and telephone numbers for THREE public agencies for which the SUBCONTRACTOR has performed similar work in the past five years.
1. Name and Address of Owner.
Name and Telephone Number of person familiar with project.
Contract Amount Type of Work Date Completed
2. Name and Address of owner.
Name and Telephone Number of person familiar with project.
Contract Amount Type of Work Date Completed
3. Name and Address of owner.
Name and Telephone Number of person familiar with project.
Contract Amount Type of Work Date Completed
The following are the names, addresses, email addresses, and telephone numbers of all brokers and sureties from whom CONTRACTOR intends to procure insurance and bonds.
City Council 26 – 52 7/19/2022
Appendix
ATTACHMENT 3-9: STATEMENT REGARDING APPRENTICESHIP
REQUIREMENTS
City of Santa Ana RFP 22-031
Page A3-11
STATEMENT REGARDING APPRENTICESHIP REQUIREMENTS
The undersigned CONTRACTOR is familiar with the requirements of Section 1777.5 of the State Labor Code regarding employment of apprentices, and understands that contractors on contracts exceeding $30,000 or 20 working days shall:
1. Apply to the joint apprenticeship committee administering the apprenticeship standards of the craft or trade in the area of the site of the public work for a certificate approving the contractor under the apprenticeship standards for the employment and training of apprentices in the area or industry affected.
2. Employ the number of apprentices or the ratio of apprentices to journeymen stipulated in the apprenticeship standards.
3. Contribute to the fund or funds in each craft or trade in which he/she employs journeymen or apprentices on the public work, in the same amount or upon the same basis and in the same manner as the other contractors, except contractors not signatory to the trust agreement shall pay a like amount to the California Apprenticeship Council.
Signed:
Title:
Firm:
Date:
City Council 26 – 53 7/19/2022
Appendix
ATTACHMENT 3-10: STATEMENT REGARDING “ANTI-KICKBACK”
REQUIREMENTS
City of Santa Ana RFP 22-031
Page A3-12
STATEMENT REGARDING “ANTI-KICKBACK” REQUIREMENTS
The undersigned is submitting this proposal for performing by contract the work required by these bid documents, agrees to comply with the Copeland “Anti-Kickback” Act (18 USC 74) as supplemented in the Department of Labor regulations (29 CFR, Part 3). This act provides that each contractor or subcontractor shall be prohibited from inducing, by any means, any person employed in the construction or repair of public work, to give up any part of the compensation to which he/she is otherwise entitled.
Signed:
Title:
Firm:
Date:
City Council 26 – 54 7/19/2022
Appendix
ATTACHMENT 3-11: PUBLIC CONTRACT CODE SECTION 10162
QUESTIONNAIRE
City of Santa Ana RFP 22-031
Page A3-13
PUBLIC CONTRACT CODE SECTION 10162 QUESTIONNAIRE
In conformance with Public Contract Code Section 10162, the CONTRACTOR shall complete, under penalty of perjury, the following questionnaire:
Has the CONTRACTOR, any officer of the CONTRACTOR’s organization, or any employee of the CONTRACTOR’s Company who has a proprietary interest in the CONTRACTOR, ever been disqualified, removed, or otherwise prevented from proposing/bidding on, or completing a federal, state, or local government project because of a violation of law or a safety regulation? Yes No
If the answer is yes, explain the circumstances in the following space.
City Council 26 – 55 7/19/2022
Appendix
ATTACHMENT 3-12: STATEMENT REGARDING COMMUNITY WORKFORCE
AGREEMENT (CWA) REQUIREMENTS
City of Santa Ana RFP 22-031
Page A3-14
STATEMENT REGARDING COMMUNITY WORKFORCE AGREEMENT (CWA) REQUIREMENTS This is to certify that the undersigned CONTRACTOR, and subcontractors, have read and understood the CWA entered into by and between the City of Santa Ana, the Los Angeles/Orange Counties Building and Construction Trades Council, and the signatory Craft Councils and Local Unions, effective as of September 1, 2017. The CWA is available at:
http://www.santa-ana.org/pwa/documents/CWA.pdf
The undersigned CONTRACTOR hereby agrees to comply with all terms and conditions of the CWA, and is capable of completing construction of the project continuously, and without interruptions or delays. If awarded any work covered by the CWA, CONTRACTOR will also be required to sign the Letter of Assent that appears as Attachment A to the CWA.
Public Works Construction Permit: The Contractor may be required to obtain a Public Works Construction Permit if the CWA thresholds for a Task Order are met or exceeded as described in this RFP’s Section III.E “Licenses & Permits.”
The undersigned has reviewed and understands that a Public Works Construction Permit for CWA administration fees and deposit that may be required as described in this RFP’s Section III.E “Licenses & Permits.”
Signed:
Title:
Firm:
Date:
City Council 26 – 56 7/19/2022
City of Santa Ana RFP 22-031
Page A4-1
Appendix
ATTACHMENT 4
PROPOSERS CERTIFICATION AND PROPOSAL ITEM PRICING
CITY OF SANTA ANA
REQUEST FOR PROPOSALS
FOR
ADVANCE TRAFFIC MANAGEMENT SYSTEM AND COMMUNICATION SYSTEMS
ON-CALL REPAIR SERVICES
RFP NO.: 22-031
Certification - I certify that I have read, understand and agree to the terms and conditions of this Request for Proposal. I have examined the Scope of Services (Exhibit A) and am familiar with the scope of work locations. I am familiar with all the existing conditions and limitation that may impact work requests. I understand and agree that I am responsible for reporting any errors, omissions or discrepancies to the City for clarification prior to the submission of my proposal.
Proposal Item Pricing - Pricing shall be based on an hourly cost, time and materials basis or per task for services described in Exhibit A. Fee must be inclusive of all costs, including but not limited to, direct and indirect costs for labor, overhead, incidental supplies, travel, mileage, and fuel. Any special materials will be purchased by the Contractor only after discussed and authorized by the City Projects Manager or designee in writing.
A. Material: Contractor’s cost for the supply plus (+) 15 % per Section 7-4.3 of the “Greenbook” Standard Specifications for Public Works Constructions, latest edition.
B. Labor: Contractor’s rates (including all fringe benefits, markup, over heads, etc.) for all job classifications. List additional staff or equipment as necessary including minimum hourly charged per call out trip if applicable.
Item Description Straight Time Overtime
1. Lead Technician $__________/hr. $__________/hr.
2. Technician $__________/hr. $__________/hr.
3. Boom Ladder/Truck $__________/hr. $__________/hr.
4. 50’ Height Boom Truck $__________/hr. $__________/hr.
5. Single-mode fiber fusion splice $__________/ per fiber.
6. Fiber Optic Technician $__________/hr. $__________/hr.
7. ________________________ $__________/hr. $__________/hr.
8. ________________________ $__________/hr. $__________/hr.
9. ________________________ $__________/hr. $__________/hr.
10. ________________________ $__________/hr. $__________/hr.
City Council 26 – 57 7/19/2022
City of Santa Ana RFP 22-031
Page A4-2
11. ________________________ $__________/hr. $__________/hr.
12. ________________________ $__________/hr. $__________/hr.
13. ________________________ $__________/hr. $__________/hr.
14. ________________________ $__________/hr. $__________/hr. ____________________________________________________________________________
LEGAL NAME OF COMPANY PHONE AND FAX NUMBER
____________________________________________________________________________
BUSINESS ADDRESS
_____________________________________________________________________________
PRINTED NAME OF AUTHORIZED AGENT TITLE
______________________________________________________________________________
SIGNATURE OF AUTHORIZED AGENT DATE E-MAIL ADDRESS
____________________________________________________________________________
FEDERAL IDENTIFICATION NUMBER CONTRACTOR LICENSE NUMBER (IF APPICABLE) (IF APPICABLE)
City Council 26 – 58 7/19/2022
EXHIBIT B
City Council 26 – 59 7/19/2022
City Council 26 – 60 7/19/2022
City Council 26 – 61 7/19/2022
Police Department
www.santa-ana.org/departments/police/
Item # 27
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
July 19, 2022
TOPIC: Agreements for Jail Inmate Counseling Services
AGENDA TITLE:
Approve Three-Year Agreements with Luis Raul Martinez and Felice Hernandez for Jail Counseling Services
RECOMMENDED ACTION
1. Authorize the City Manager to execute a three-year agreement with Luis Raul Martinez, for the period of July 19, 2022 through June 30, 2025, to provide counseling services, in an amount not to exceed $120,000, subject to non-substantive changes approved by the City Manager and City Attorney.
2. Authorize the City Manager to execute a three-year agreement with Felice Hernandez, for the period of July 19, 2022 through June 30, 2025, to provide counseling services, in an amount not to exceed $120,000, subject to non-substantive changes approved by the City Manager and City Attorney.
DISCUSSION
Per California Department of Corrections and Rehabilitation, Title 15, the Santa Ana Jail is required to provide counseling services to Santa Ana Jail inmates. Luis Raul Martinez and Felice Hernandez are well qualified and have been providing jail counseling services to the Santa Ana Jail for many years. Through these agreements, the counselors will provide one-on-one counseling and instructional services encompassing the fields of anger management, stress reduction, conflict management/resolution, domestic violence avoidance, and chemical dependency avoidance to the inmates housed in the Santa Ana Jail.
In-house professional counselors are an important resource in the effort to help inmates more smoothly reintegrate with their communities upon release. In addition, these services are crucial in providing required care outlined by the federal Prison Rape Elimination Act (PREA) and industry standards associated with suicide prevention protocols. The agreement terms will run from July 19, 2022 through June 30, 2025.
City Council 27 – 1 7/19/2022
Agreements for Jail Inmate Counseling Services
July 19, 2022
The previous agreements with Luis Raul Martinez and Felice Hernandez expired on June 30, 2022. During July 1, 2022 and July 18, 2022, Luis Raul Martinez and Felice Hernandez have continued to provide the same level of service to the Police Department.
The new agreement compensation total includes the amount needed to cover any services provided since the last agreement expired.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
FISCAL IMPACT
Funds are available in the Police Department’s Inmate Welfare Fund-Contract Services account (no. 02314475-62300), and will be budgeted in future fiscal years as follows:
Fiscal
Year
Accounting Unit
– Account #
Fund
Description
Accounting Unit, Account
Description Amount
FY 22-23 02314475-62300 Inmate
Welfare Fund
Inmate Welfare Fund,
Contract Services $ 80,000
FY 23-24 02314475-62300 Inmate
Welfare Fund
Inmate Welfare Fund,
Contract Services $ 80,000
FY 24-25 02314475-62300 Inmate
Welfare Fund
Inmate Welfare Fund,
Contract Services $ 80,000
Total $240,000
EXHIBIT(S)
1. Agreement with Luis Raul Martinez
2. Agreement with Felice Hernandez
Submitted By: David Valentin, Police Chief
Approved By: Kristine Ridge, City Manager
City Council 27 – 2 7/19/2022
Exhibit 1
City Council 27 – 3 7/19/2022
City Council 27 – 4 7/19/2022
City Council 27 – 5 7/19/2022
City Council 27 – 6 7/19/2022
City Council 27 – 7 7/19/2022
City Council 27 – 8 7/19/2022
City Council 27 – 9 7/19/2022
City Council 27 – 10 7/19/2022
Exhibit 2
City Council 27 – 11 7/19/2022
City Council 27 – 12 7/19/2022
City Council 27 – 13 7/19/2022
City Council 27 – 14 7/19/2022
City Council 27 – 15 7/19/2022
City Council 27 – 16 7/19/2022
City Council 27 – 17 7/19/2022
City Council 27 – 18 7/19/2022
Police Department
www.santa-ana.org/departments/police/
Item # 28
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
July 19, 2022
TOPIC: Police Officer Hiring Bonus Program
AGENDA TITLE:
Police Officer Hiring Bonus Program
RECOMMENDED ACTION
Adopt a resolution approving a Police Officer Hiring Bonus program in a total amount not to exceed $100,000, offering up to $10,000 per officer.
DISCUSSION
Similar to most law enforcement agencies throughout the state and county, the Santa Ana Police Department (SAPD) is attempting to fill vacancies for the position of sworn police officer. The biggest challenge facing the department is the significant decline in applicants since 2020. A recent report completed by department personnel on April 26 of this year indicates, “the Department has realized a 60% reduction in police officer applications since 2020, and a 34% reduction in the number of applicants entering the background process since 2021.”
A national recruitment trend is the offering of a hiring bonus ranging from $5,000 to $40,000. Locally, the Anaheim Police Department is currently offering $15,000 and appears to have recruited a half dozen officers from a neighboring agency. Below is an example of some of the agencies currently offering a hiring bonus:
Agency Amount Terms
Alameda Police
Department $30,000
$10,000 upon completion of field training
program; $10,000 after one year of
service; $10,000 after second year of
service
Anaheim Police
Department
$15,000 -
$20,000
$5,000 upon first full pay period following
first date of employment; $5,000 upon
successful completion of field training
program; $5,000 upon successful
City Council 28 – 1 7/19/2022
Police Officer Hiring Bonus Program
July 19, 2022
completion of probation; ($5,000
additional military veteran incentive)
Bay Area Rapid Transit $15,000 $5,000 upon hire; $10,000 upon completion of field training program
Buena Park Police
Department $5,000
$2,500 upon hire; $2,500 upon completion
of field training program and eighteenmonth probationary period Colton Police Department $15,000
$2,500 upon hire; $2,500 upon completion
of field training program and six months;
$5,000 after completion of probation;
$5,000 after one-year anniversary of
probation
Redding Police
Department $40,000
$20,000 upon hire; $10,000 upon
completion of field training program;
$10,000 after completion of one-year
probation
San Francisco Police
Department $5,000 $5,000 upon completion of field training program The introduction of a signing bonus for new hires will bolster our efforts and falls in line with the prevailing trend throughout the state. It is recommended the City of Santa Ana implement a hiring bonus of $10,000 for police officers, which is competitive with neighboring agencies. Eligibility for this program will be limited to only new police officer applicants who apply after adoption of the program. For new police officers (recruits and academy graduates), the bonus would be paid out incrementally as follows:
$2,500 paid upon first full pay period following the first date of employment $2,500 paid upon successful completion of field training program (12-22 weeks) $5,000 paid upon successful completion of probation (one year from date of hire) For lateral police officers, the bonus would be paid out incrementally as follows:
$5,000 paid upon first full pay period following the first date of employment $5,000 paid upon successful completion of probation (one year from date of hire) City Council 28 – 2 7/19/2022
Police Officer Hiring Bonus Program
July 19, 2022
This program will be publicized in the SAPD recruitment flyers, Governmentjobs.com postings, at job fairs, on social media platforms (Facebook, Twitter, Instagram), Nixle alert, and on the City’s website. This initial pilot program funding will assist in recruiting and hiring ten police officers. If the program is successful and additional funds are necessary, a future request will be presented for Council consideration.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
FISCAL IMPACT
Funds in the amount of $100,000 will be transferred from the Police Department’s Field Operations Salaries Overtime account to the Human Resources, Signing Bonus account no. (01114402-61045) for expenditure. All committed funds unpaid by the end of the fiscal year shall be carried forward for expenditure in FY 2023-24.
EXHIBIT(S)
1. Resolution
2. Program Flyer
Submitted By: David Valentin, Police Chief
Approved By: Kristine Ridge, City Manager
City Council 28 – 3 7/19/2022
Resolution 2022-xxx
TB 7.19.2022
RESOLUTION NO. 2022-xxx
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF SANTA ANA APPROVING A POLICE OFFICER HIRING
BONUS PROGRAM FOR POLICE OFFICER APPLICANTS IN AN
AMOUNT NOT TO EXCEED $100,000
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows:
A. WHEREAS, the City Council of the City of Santa Ana recognizes the need to hire and fill Police Officer positions; and
B. WHEREAS, the City Council of the City of Santa Ana understands the growing demand across the state for Police Officers; and C. WHEREAS, the introduction of a signing bonus for new hires through this initial pilot program will bolster the Santa Ana Police Department’s efforts to recruit and retain new Police Officers.
D. WHEREAS, the Santa Ana Police Department will create a reasonable tiered payment program in connection with the hiring bonuses.
Section 2. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Santa Ana hereby approves the Police Officer Hiring Bonus Program for Police Officers as set forth in the accompanying Staff Report, attached hereto and made a part hereof in an amount not to exceed $100,000.
Section 3. If section, subsection, sentence, clause, phrase or word of this Resolution is for any reason held to be invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Resolution. The City Council hereby declares that it would have passed and adopted this Resolution, and each and all provisions hereof, irrespective of the fact that one or more provisions may be declared invalid.
Section 4. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution.
City Council 28 – 4 7/19/2022
Resolution 2022-xxx
ADOPTED this day of July 2022.
Vicente Sarmiento
Mayor
APPROVED AS TO FORM:
Sonia R. Carvalho, City Attorney
By:
Tamara Bogosian
Sr. Assistant City Attorney
AYES: Councilmembers_______________________________________ NOES: Councilmembers_______________________________________ ABSTAIN: Councilmembers_______________________________________ NOT PRESENT: Councilmembers_______________________________________
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, DAISY GOMEZ, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2022-XXX to be the original resolution adopted by the City Council of the City of Santa Ana on .
Date:
Clerk of the Council
City of Santa Ana
City Council 28 – 5 7/19/2022
SANTA ANA POLICE DEPARTMENT
POLICE OFFICER
$73,320 - $112,104
$10,000 BONUS FOR ALL NEW
POLICE OFFICERS HIRED
2.5% - 5% Bilingual Pay
5% - 15% Educational Pay
Group Medical/Dental/Vision Plans
Tuition Reimbursement for College Courses up to
$1500/yr
Military Reserve Friendly Employer
Expedited Testing Available
Compressed Work Schedule (3/12's or 4/10's)
Veterans May Be Eligible for Military Bonus Points
A REWARDING CAREER
EXHIBIT 2
City Council 28 – 6 7/19/2022
Finance and Management Services
www.santa-ana.org/finance
Item # 29
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
July 19, 2022
TOPIC: Resolution Authorizing a Non-Financial Agreement with the California Franchise Tax Board for exchange of Business License Tax Data
AGENDA TITLE:
Resolution Authorizing a Reciprocal Agreement with the California Franchise Tax Board for the Exchange of Business License Tax Data
RECOMMENDED ACTION
1. Adopt a Resolution authorizing a reciprocal agreement with the California Franchise Tax Board for the exchange of business license tax data.
2. Authorize the City Manager to execute a non-financial reciprocal agreement with the California Franchise Tax Board for the exchange of business license tax data for a term beginning July 19, 2022 through December 31, 2024, subject to non-substantive changes approved by the City Manager and City Attorney.
DISCUSSION
The City of Santa Ana Municipal Code (“SAMC”) Chapter 21, known as the Business License Tax Code, is intended to provide a revenue for the general operation of the City by the levy of a business license tax on all business transactions or activities carried on or occurring within Santa Ana and is not intended for regulation.
The data exchange program with the California Franchise Tax Board (“FTB”), which began because of the enactment of Senate Bill 1146 on September 26, 2008, enables both Santa Ana and the FTB to share information and identify non-compliant businesses.
The City has been participating in the data exchange program since 2009, and has conducted audits of business license data to ensure the City receives the revenue it is legally entitled to collect.
The Agreement with the FTB is good for two years and seven months at a time, and it is time to renew. Under the terms of the Agreement with the FTB, Santa Ana will be required to send data to the FTB annually each June. The data required includes ownership name, address information, Employer ID number, and business start date. The FTB will send the City similar information from their database each year in December, as well as information on taxpayers who file business related income tax returns. Under the terms City Council 29 – 1 7/19/2022
Adopt a Resolution Authorizing a BLT Data Exchange Agreement with the FTB July 19, 2022
of this Agreement, the data exchange will continue through December 2024. Neither the FTB nor the City of Santa Ana would be reimbursed for the cost of providing data and neither party will be charged for receiving data from the other agency. Should the City wish to discontinue participating in the data exchange program, the Agreement may be terminated with thirty days (30) written notice to the FTB.
Staff recommends the adoption of a Resolution authorizing a reciprocal agreement with the California Franchise Tax Board for the continued exchange of business data.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
FISCAL IMPACT
There is no fiscal impact associated with this Ordinance adoption.
EXHIBIT(S)
1. Resolution
2. FTB Agreement
Submitted By: Kathryn Downs, FMSA Executive Director
Approved By: Kristine Ridge, City Manager
City Council 29 – 2 7/19/2022
Resolution No. 2022-XXX
RESOLUTION NO. 2022-XXX
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA AUTHORIZING A RECIPROCAL AGREEMENT
WITH THE CALIFORNIA FRANCHISE TAX BOARD FOR
THE EXCHANGE OF BUSINESS LICENSE TAX DATA
WHEREAS, Chapter 21 of the Santa Ana Municipal Code is known as the Business License Tax Code of the City of Santa Ana (“City”), and Section 21-5 states: “It shall be unlawful for any person, whether as principal or agent, clerk or employee, either for himself or for any other person, or for body corporate, or as an officer of any corporation to transact and carry on any business, trade, profession, calling or occupation in the city without first having procured a license from the city to do so or without complying with all applicable provisions of this Code.”; and WHEREAS, this data exchange program began as a result of the enactment of Senate Bill 1146 on September 26, 2008, which authorized a city to enter into a reciprocal agreement with the California Franchise Tax Board (“FTB”) to exchange tax data to enable both parties to identify any non-compliant businesses; and WHEREAS, in June 2015, the City Council approved an agreement with the FTB to exchange data related to Business Licensing, and the agreement with the FTB expired on December 31, 2017; and
WHEREAS, the City desires to enter into such an agreement with FTB with a term from July 19, 2022, or date of adoption of this resolution, through December 31, 2024.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Santa Ana as follows:
Section 1. The City approves entering into a reciprocal agreement with FTB for the exchange of business license tax data.
Section 2. The City appoints and authorizes the Finance Director and his/her designee(s), and each of them, as agent(s) of the City to conduct all negotiations, execute and submit documents, including, but not limited to, the standard agreement, applications, amendments, memoranda of understanding, payment requests and so on, which may be necessary for participation in and completion of the aforementioned reciprocal agreement, including any extensions or amendments thereof, subject to prior approval as to form by the City Attorney’s Office.
Section 3. A signed copy of this resolution shall be transmitted to the FTB in conjunction with the filing of an application.
Section 4. This Resolution shall take effect immediately upon its adoption by a majority of the City Council.
EXHIBIT 1
City Council 29 – 3 7/19/2022
Resolution No. 2022-XXX
ADOPTED this ____ day of _____, 2022.
Vicente Sarmiento
Mayor
APPROVED AS TO FORM:
Sonia R. Carvalho
City Attorney
By:
Ryan O. Hodge
Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, DAISY GOMEZ, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2022 -XXX to be the original resolution adopted by the City Council of the City of Santa Ana on _____________________, 2022.
Date:
Clerk of the Council
City of Santa Ana
City Council 29 – 4 7/19/2022
EXHIBIT 2
City Council 29 – 5 7/19/2022
City Council 29 – 6 7/19/2022
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement 81093 the date and year first above written.
ATTEST:
Daisy Gomez
Clerk of the Council
APPROVED AS TO FORM:
CITY ATTORNEY
Sonia R. Carvalho
Ryan O. Hodge
Assistant City Attorney
RECOMMENDED FOR APPROVAL:
Kathryn Downs, Executive Director
Finance and Management Services Agency
City Council 29 – 7 7/19/2022
State of California
Franchise Tax Board
City of Santa Ana
Agreement 81093
EXHIBIT A
SCOPE OF WORK
This Agreement is entered into by and between the Franchise Tax Board, herein after referred to as (FTB), and the City of Santa Ana, herein after referred to as the City.
Purpose:
This Agreement provides for the reciprocal exchange between FTB and the City tax data specific to city business license information for tax administration purposes. By entering into a reciprocal agreement, each party agrees to bear its own costs of providing the data, and the City is precluded from obtaining reimbursement.
Both parties will abide by the legal and confidential provisions of this Agreement. Exhibits A, C, D, E, F, and G, attached hereto and incorporated by reference herein, set forth additional terms to which the parties agree to be bound.
No Federal Tax Information will be exchanged.
Legal Authority:
California Revenue and Taxation Code (R&TC) Section 19551.1 authorizes a reciprocal agreement for the exchange of specified tax information between a City/County and FTB. R&TC Section 19551.5 mandates cities/counties to provide city/county business licensing and tax information to FTB upon request.
City Responsibilities:
1. The City agrees that the information provided by FTB will be used exclusively to administer the City/County Business Tax Program.
2. The City agrees that information obtained under this Agreement will not be reproduced, published, sold, or released in original or in any other form for any purpose; and will only be accessed or used by City employees whose duties are to administer the City/County Business Tax Program.
3. The City agrees to provide FTB with tax information pursuant to Format Specifications, Exhibit E, which shall include, but not be limited to, the following:
Business or owner’s name
Business or residence address
Federal Employer Identification Number (FEIN) or Social Security Number (SSN) Ownership type
North American Industry Classification Code or Standard Industry Classification Code Business start and cessation dates
City Business Tax Number, to be assigned to the City by FTB City Council 29 – 8 7/19/2022
State of California
Franchise Tax Board
City of Santa Ana
Agreement 81093
4. The City agrees to extract and provide city data to FTB annually between April and July for each tax year that the Agreement is in place. If the Agreement is executed after July 31, 2022, the City will have 30 days after execution to provide FTB with the first year’s data.
5. The City agrees to submit the records to FTB electronically using FTB's Secure Web Internet File Transfer (SWIFT) system.
6. The City agrees to submit the records to FTB in ASCII fixed-length format, .txt, per the Format Specifications, Exhibit E.
7. The City agrees to resubmit data in the event data is initially submitted with errors. The resubmission of data must be within 30 days of notification. If data is not submitted accurately and timely, the City will forfeit its rights to FTB data for that year.
8. The City agrees that each City employee having access to FTB data shall sign a City/County Business Tax Program Confidentiality Statement, FTB 712 (Exhibit G). The signed statement is to be retained by the City and produced to FTB upon request.
9. The City agrees to submit to FTB a completed Security Questionnaire prior to receiving any FTB data. The Security Questionnaire is valid for the duration of the Agreement.
10. The City agrees to provide a copy of the current resolution, order, or minutes reflecting passage of a motion, or ordinance of the local governing body authorizing the execution of this specific Agreement.
FTB Responsibilities:
1. FTB agrees that information provided by the City will be used for tax administration and non-tax programs that FTB administers and may be shared with other state or federal agencies as authorized by law.
2. FTB agrees that information obtained under this Agreement will not be reproduced, published, sold, or released in original or in any other form for any purpose, except as provided in paragraph 1 or otherwise authorized by law.
3. FTB agrees to provide the City with data extracted from the Taxpayer Information (TI) system and Business Entities Tax System (BETS). FTB will provide the City with records for taxpayers within the City’s jurisdiction who indicate a business on their personal or business entity income tax return. The Record Layout, Exhibit F, FTB 909A shall include:
Taxpayer name
Taxpayer address
Taxpayer SSN or FEIN
Principal Business Activity code
4. FTB agrees to match the data provided by the City using the SSN or FEIN against FTB’s data with a “Yes” or “No” indicator on the Record Layout, Exhibit F, FTB 909A. The first year’s data match is at the discretion of FTB based on when the data is received from the City and processed.
City Council 29 – 9 7/19/2022
State of California
Franchise Tax Board
City of Santa Ana
Agreement 81093
5. FTB agrees to provide the City with an annual data extract in December 2022 for tax year 2021, in December 2023 for tax year 2022, and in December 2024 for tax year 2023 via SWIFT.
6. FTB agrees to register the City for a SWIFT account allowing for the secure electronic transmission of data.
7. FTB agrees to provide the City with a unique City Business Tax Number to be used for reporting purposes only.
8. FTB agrees to allow the City to resubmit data within 30 days of notification, in the event data is initially submitted with errors.
Project Coordinators:
The project coordinators during the term of this Agreement will be:
Franchise Tax Board
Chelsea Van Zant
City/County Business Tax Program Manager
Data Oversight Program
P.O. Box 1468, Mailstop A181
Sacramento, CA 95812-1468
Phone: (916) 845-6304
Email: [email protected]
City of Santa Ana
Alejandra Gutierrez
Senior Management Analyst
20 Civic Center Plaza
Santa Ana, CA 92701
Phone: (714) 647-5497
Email: [email protected]
Return executed agreement to:
Franchise Tax Board
Richard O’Neal
Business Acquisitions Unit
P.O. Box 2086, Mailstop A-374
Rancho Cordova, CA 95741-2086
Phone: (916) 845-5597
Fax: (916) 364-2688
Email: [email protected]
City Council 29 – 10 7/19/2022
State of California
Franchise Tax Board
City of Santa Ana
Agreement 81093
EXHIBIT B
BUDGET DETAIL AND PAYMENT PROVISIONS
This data exchange is provided at no cost.
City Council 29 – 11 7/19/2022
General Terms and Conditions (GTC 04/2017)
EXHIBIT C
1. APPROVAL: This Agreement is of no force or effect until signed by both parties and approved by the Department of General Services, if required. Contractor may not commence performance until such approval has been obtained.
2. AMENDMENT: No amendment or variation of the terms of this Agreement shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or Agreement not incorporated in the Agreement is binding on any of the parties.
3. ASSIGNMENT: This Agreement is not assignable by the Contractor, either in whole or in part, without the consent of the State in the form of a formal written amendment.
4. AUDIT: Contractor agrees that the awarding department, the Department of General Services, the Bureau of State Audits, or their designated representative shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement. Contractor agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated. Contractor agrees to allow the auditor(s) access to such records during normal business hours and to allow interviews of any employees who might reasonably have information related to such records. Further, Contractor agrees to include a similar right of the State to audit records and interview staff in any subcontract related to performance of this Agreement. (Gov. Code §8546.7, Pub. Contract Code §10115 et seq., CCR Title 2, Section 1896).
5. INDEMNIFICATION: Contractor agrees to indemnify, defend and save harmless the State, its officers, agents and employees from any and all claims and losses accruing or resulting to any and all contractors, subcontractors, suppliers, laborers, and any other person, firm or corporation furnishing or supplying work services, materials, or supplies in connection with the performance of this Agreement, and from any and all claims and losses accruing or resulting to any person, firm or corporation who may be injured or damaged by Contractor in the performance of this Agreement.
6. DISPUTES: Contractor shall continue with the responsibilities under this Agreement during any dispute.
7. TERMINATION FOR CAUSE: The State may terminate this Agreement and be relieved of any payments should the Contractor fail to perform the requirements of this Agreement at the time and in the manner herein provided. In the event of such termination the State may proceed with the work in any manner deemed proper by the State. All costs to the State shall be deducted from any sum due the Contractor under this Agreement and the balance, if any, shall be paid to the Contractor upon demand.
City Council 29 – 12 7/19/2022
8. INDEPENDENT CONTRACTOR: Contractor, and the agents and employees of Contractor, in the performance of this Agreement, shall act in an independent capacity and not as officers or employees or agents of the State.
9. RECYCLING CERTIFICATION: The Contractor shall certify in writing under penalty of perjury, the minimum, if not exact, percentage of post-consumer material as defined in the Public Contract Code Section 12200, in products, materials, goods, or supplies offered or sold to the State regardless of whether the product meets the requirements of Public Contract Code Section 12209. With respect to printer or duplication cartridges that comply with the requirements of Section 12156(e), the certification required by this subdivision shall specify that the cartridges so comply (Pub. Contract Code §12205).
10. NON-DISCRIMINATION CLAUSE: During the performance of this Agreement, Contractor and its subcontractors shall not deny the contract’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they discriminate unlawfully against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. Contractor shall insure that the evaluation and treatment of employees and applicants for employment are free of such discrimination. Contractor and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12900 et seq.), the regulations promulgated thereunder (Cal. Code Regs., tit. 2, §11000 et seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code (Gov. Code §§11135-11139.5), and the regulations or standards adopted by the awarding state agency to implement such article. Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the awarding state agency upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or Agency shall require to ascertain compliance with this clause. Contractor and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. (See Cal. Code Regs., tit. 2, §11105.)
Contractor shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the Agreement.
11. CERTIFICATION CLAUSES: The CONTRACTOR CERTIFICATION CLAUSES contained in the document CCC 04/2017 are hereby incorporated by reference and made a part of this Agreement by this reference as if attached hereto.
12. TIMELINESS: Time is of the essence in this Agreement.
City Council 29 – 13 7/19/2022
13. COMPENSATION: The consideration to be paid Contractor, as provided herein, shall be in compensation for all of Contractor's expenses incurred in the performance hereof, including travel, per diem, and taxes, unless otherwise expressly so provided.
14. GOVERNING LAW: This contract is governed by and shall be interpreted in accordance with the laws of the State of California.
15. ANTITRUST CLAIMS: The Contractor by signing this agreement hereby certifies that if these services or goods are obtained by means of a competitive bid, the Contractor shall comply with the requirements of the Government Codes Sections set out below.
a. The Government Code Chapter on Antitrust claims contains the following definitions:
1) "Public purchase" means a purchase by means of competitive bids of goods, services, or materials by the State or any of its political subdivisions or public agencies on whose behalf the Attorney General may bring an action pursuant to subdivision (c) of Section 16750 of the Business and Professions Code.
2) "Public purchasing body" means the State or the subdivision or agency making a public purchase. Government Code Section 4550. b. In submitting a bid to a public purchasing body, the bidder offers and agrees that if the bid is accepted, it will assign to the purchasing body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, materials, or services by the bidder for sale to the purchasing body pursuant to the bid. Such assignment shall be made and become effective at the time the purchasing body tenders final payment to the bidder.
Government Code Section 4552.
c. If an awarding body or public purchasing body receives, either through judgment or settlement, a monetary recovery for a cause of action assigned under this chapter, the assignor shall be entitled to receive reimbursement for actual legal costs incurred and may, upon demand, recover from the public body any portion of the recovery, including treble damages, attributable to overcharges that were paid by the assignor but were not paid by the public body as part of the bid price, less the expenses incurred in obtaining that portion of the recovery. Government Code Section 4553. d. Upon demand in writing by the assignor, the assignee shall, within one year from such demand, reassign the cause of action assigned under this part if the assignor has been or may have been injured by the violation of law for which the cause of action arose and (a) the assignee has not been injured thereby, or (b) the assignee declines to file a court action for the cause of action. See Government Code Section 4554. City Council 29 – 14 7/19/2022
16. CHILD SUPPORT COMPLIANCE ACT: For any Agreement in excess of $100,000, the contractor acknowledges in accordance with Public Contract Code 7110, that:
a. The contractor recognizes the importance of child and family support obligations and shall fully comply with all applicable state and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with section 5200) of Part 5 of Division 9 of the Family Code; and
b. The contractor, to the best of its knowledge is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Hire Registry maintained by the California Employment Development Department.
17. UNENFORCEABLE PROVISION: In the event that any provision of this Agreement is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby.
18. PRIORITY HIRING CONSIDERATIONS: If this Contract includes services in excess of $200,000, the Contractor shall give priority consideration in filling vacancies in positions funded by the Contract to qualified recipients of aid under Welfare and Institutions Code Section 11200 in accordance with Pub. Contract Code §10353.
19. SMALL BUSINESS PARTICIPATION AND DVBE PARTICIPATION REPORTING REQUIREMENTS:
a. If for this Contract Contractor made a commitment to achieve small business participation, then Contractor must within 60 days of receiving final payment under this Contract (or within such other time period as may be specified elsewhere in this Contract) report to the awarding department the actual percentage of small business participation that was achieved. (Govt. Code § 14841.)
b. If for this Contract Contractor made a commitment to achieve disabled veteran business enterprise (DVBE) participation, then Contractor must within 60 days of receiving final payment under this Contract (or within such other time period as may be specified elsewhere in this Contract) certify in a report to the awarding department: (1) the total amount the prime Contractor received under the Contract; (2) the name and address of the DVBE(s) that participated in the performance of the Contract; (3) the amount each DVBE received from the prime Contractor; (4) that all payments under the Contract have been made to the DVBE; and (5) the actual percentage of DVBE participation that was achieved. A person or entity that knowingly provides false information shall be subject to a civil penalty for each violation. (Mil. & Vets. Code § 999.5(d); Govt. Code § 14841.)
City Council 29 – 15 7/19/2022
20. LOSS LEADER: If this contract involves the furnishing of equipment, materials, or supplies then the following statement is incorporated: It is unlawful for any person engaged in business within this state to sell or use any article or product as a “loss leader” as defined in Section 17030 of the Business and Professions Code. (PCC 10344(e).)
City Council 29 – 16 7/19/2022
State of California
Franchise Tax Board
City of Santa Ana
Agreement 81093
EXHIBIT D
SPECIAL TERMS AND CONDITIONS
1. DATA OWNERSHIP: The confidential tax information or sensitive information being provided under this Agreement remains the exclusive property of the providing party.
Confidential tax information and other confidential information are not open to the public and require special precautions to protect from loss and unauthorized access, inspection, acquisition, use, disclosure, modification, or destruction. The City (or County) shall have the right to use and process the disclosed information for the purposes stated in the Scope of Work of Exhibit A of this Agreement, which right shall be revoked and terminated immediately upon termination of this Agreement.
2. STATEMENT OF CONFIDENTIALITY: The Franchise Tax Board has taxpayer tax returns and other confidential information and data in its custody. Unauthorized inspection or disclosure of state returns or other confidential information or data is a misdemeanor (Revenue and Taxation Code Sections 19542, 19542.1, Unauthorized inspection or disclosure of federal returns and other confidential federal return information or data is a misdemeanor or a felony (Internal Revenue Code Sections 7213A(a)(2) and (b), and 7213(a)(2), respectively).
Upon the approval of this agreement and prior to any access to the confidential or sensitive data of the FTB, each City (or County) employee who may have access to the confidential data of FTB will be required to sign a City/County Business Tax Program Confidentiality Statement, FTB 712 (Exhibit G), attesting to the fact that he/she is aware of the confidentiality of the data and the penalties for unauthorized disclosure thereof under applicable state and federal law. The signed statement(s) shall be retained by the City (or County) and furnished to FTB upon request.
3. USE OF INFORMATION: The City (or County) agrees that the information furnished or secured pursuant to this Agreement shall be used solely for the purposes described in the Scope of Work of Exhibit A. The City (or County) further agrees that information obtained under this Agreement will not be reproduced, published, sold or released in original or in any other form for any purpose other than as identified in the Scope of Work of Exhibit A.
4. EMPLOYEE ACCESS TO INFORMATION: Both FTB and the City (or County) receiving data agree that the information obtained will be kept in the strictest confidence and shall make information available to its own employees only on a “need to know” basis. The “need to know” standard is met by authorized employees who need the information to perform their official duties in connection with the uses of the information authorized by this Agreement.
Each party receiving data recognize(s) its responsibility to protect the confidentiality of the information in its custody as provided by law and ensure that such information is disclosed only to those individuals and for such purposes as authorized by law and this Agreement.
5. PROTECTING CONFIDENTIAL INFORMATION/ INCIDENT REPORTING: Both FTB and the City (or County) receiving data, recognize the confidentiality of the information to be exchanged, pursuant to this agreement from unauthorized access, use, or disclosure. Each party receiving data will conduct oversight of its users with access to the confidential information provided under this agreement and will immediately notify the FTB’s Information Security Audit Unit ([email protected]) of any unauthorized or suspected unauthorized accesses, uses and/or disclosures (incidents). For purposes of this section, immediately is defined as within 24 hours of the discovery of the breach. The notification City Council 29 – 17 7/19/2022 State of California
Franchise Tax Board
City of Santa Ana
Agreement 81093
must describe the incident in detail and identify responsible personnel (name, title, and contact information). The City (or County) with an incident will comply with the incident reporting requirements in accordance with R&TC Section 19542.1, Civil Code Section 1798.29, SAM Chapter 5300, and SAM Sections 8643 and 20080, and State Information Management Manual 54340-A and 5340-C to facilitate the required reporting to the taxpayers or state oversight agencies.
6. INFORMATION SECURITY: Information security is defined as the preservation of the confidentiality, integrity, and availability of information. A secure environment is required to protect the confidential information obtained from FTB pursuant to this agreement. The City (or County) receiving data will store information so that it is physically secure from unauthorized access. The records received by the City (or County) will be securely maintained and accessible only by employees of the City (or County) business license or tax programs who are committed to protect the data from unauthorized access, use, or disclosure. All FTB electronic data must be encrypted when in transit using FIPS 140-2 approved encryption technology and be password protected and secure at all times when in storage. Confidential information obtained from the FTB must be secured in accordance with the SAM Chapters 5100 and 5300 (Information Security), and National Institute of Standards and Technology (NIST) Special Publication 800-53 (moderate); and additional security requirements provided by FTB.
7. CLOUD COMPUTING ENVIRONMENT: A City (or County) receiving FTB’s confidential data must submit a completed FTB Cloud Security Questionnaire before using a Cloud Computing Environment. The questionnaire will be reviewed for approval by FTB’s Chief Security Officer, or his/her designee. A Cloud Computing Environment cannot be used to receive, transmit, store or process FTB’s confidential data without prior written approval from FTB’s Chief Security Officer or his/her designee.
8. DESTRUCTION OF RECORDS: All records received by the City (or County) from FTB under this Agreement, and any database(s) created, copies made, or files attributed to the records received, will be returned or destroyed within three years of receipt or upon termination of the agreement due to a breach of its terms, whichever occurs earlier. The records shall be destructed in a manner to be deemed unusable or unreadable, and to the extent that an individual record can no longer be reasonably ascertained. The City (or County) will notify FTB City/County Business Tax program manager annually in writing at FTB [email protected] that proper destruction methods have been applied. FTB will destroy city/county data in accordance with the department’s data retention policies.
9. DISPUTE RESOLUTION: In the event of a dispute, the City (or County) shall file a “Notice of Dispute” with the Chief Financial Officer of the FTB within ten (10) days of discovery of the problem. Within ten (10) days, the Chief Financial Officer or his/her designee shall meet with the City (or County) for purposes of resolving the dispute. The decision of the Chief Financial Officer shall be final.
10. SURVIVAL OF OBLIGATION TO PROTECT DATA: Each party’s obligation to protect the data and information received from the other party shall survive the expiration or termination of this Agreement. In the event a party continues to provide any data or information to the other party after the expiration or termination of this Agreement, the receiving party agrees to continue to protect all such data and information received in accordance with the provisions of this Exhibit D, and all applicable state and federal laws.
City Council 29 – 18 7/19/2022
State of California
Franchise Tax Board
City of Santa Ana
Agreement 81093
11. ONSITE SAFEGUARD REVIEW: FTB retains the right to conduct on-site safeguard reviews of the City (or County) use of FTB information and security controls established. The safeguard reviews may include, but are not limited to an examination of the adequacy of information security controls, “need to know,” and use justifications established by the City (or County) to ensure compliance with the terms and conditions of this agreement. FTB will provide a minimum of seven (7) days’ notice of a safeguard review being conducted by FTB staff. The City (or County) will take appropriate disciplinary actions against any user determined to have violated security or confidentiality requirements.
12. LIMITED WARRANTY: Neither party represents or warrants the accuracy or content of the material available through this Agreement, nor each expressly disclaims any express or implied warranty, including any implied warranty of fitness for a specific purpose.
13. CANCELLATION: Either party may terminate this Agreement, in writing for any reason, upon thirty (30) days’ prior written notice. This Agreement may be terminated immediately by either party in the event of any breach of the terms of this Agreement.
14. NO THIRD PARTY LIABILITY: Nothing contained in or related to this agreement shall create any contractual relationship between either of the Parties and any other party, except between FTB and the City (or County); and no other party shall relieve the City (or County) or FTB of its responsibilities and obligations hereunder. Each of the parties agrees to be fully responsible for the acts and omissions of its third party contractors and agents, and of persons either directly or indirectly employed by the party. Neither of the parties shall have any obligation to pay, or to see to the payment of, any monies to any party or persons either directly or indirectly employed by the other.
City Council 29 – 19 7/19/2022
State of California
Franchise Tax Board
City of Santa Ana
Agreement 81093
EXHIBIT E
CITY AND COUNTY RECORD FORMAT SPECIFICATIONS (FTB 909)
Data Element Name
SOCIAL SECURITY NUMBER
(SSN)
1 9 9 AN Must be present unless FEIN is
provided. Fill unused field with
zeros.
FEDERAL EMPLOYER
ID NUMBER (FEIN)
10 18 9 AN Must be present unless SSN is
provided. Fill unused field with
zeros.
OWNERSHIP TYPE 19 19 1 AN Must be present:
S = Sole Proprietorship
P = Partnership
C = Corporation
T = Trust
L = Limited Liability Company
OWNER’S LAST NAME 20 34 15 AN Must be present if Ownership Type in position 19 = S.
OWNER’S FIRST NAME 35 45 11 AN Must be present if Ownership Type in position 19 = S.
OWNER’S MIDDLE INITIAL 46 46 1 AN May be left blank.
BUSINESS NAME 47 86 40 AN Enter if business is operating under a fictitious name (Doing Business
As (DBA)).
BUSINESS ADDRESS
NUMBER AND STREET
87 126 40 AN Address of the business location or
the residence of the owner if sole
proprietorship.
CITY 127 166 40 A Must be present.
STATE 167 168 2 A Enter standard state abbreviation.
ZIP CODE 169 177 9 AN Enter the five- or nine-digit ZIP Code assigned by the U.S. Postal
Service. If only the first five-digits
are known, left-justify information
and fill the unused fields with zeros.
BUSINESS START DATE 178 185 8 N Enter the eight-digit date (MMDDYYYY). Zero fill if not
known.
Start End Field Usage Description
Pos. Pos. Size
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State of California
Franchise Tax Board
City of Santa Ana
Agreement 81093
BUSINESS CEASE DATE 186 193 8 N Enter the eight-digit date (MMDDYYYY) if out of business.
Zero fill if unknown or still in
business.
Data Element Name
CITY BUSINESS TAX
NUMBER
194 196 3 N Enter three-digit number assigned
by FTB.
NORTH AMERICAN
INDUSTRY CLASSIFICATION
SYSTEM (NAICS)
197 202 6 N Enter the two- to six-digit NAICS
code. Left justify. (example 99 will
be 9900). Fill unused fields with
zeros.
STANDARD INDUSTRIAL
CLASSIFICATION (SIC)
203 206 4 N Enter the 2-4 digit SIC code. Left
justify (example 99 will be 9900).
Fill unused fields with zeros.
TOTAL RECORD LENGTH 206
Start End Field Usage Description
Pos. Pos. Size
City Council 29 – 21 7/19/2022
State of California
Franchise Tax Board
City of Santa Ana
Agreement 81093
EXHIBIT F
FRANCHISE TAX BOARD RECORD LAYOUT SPECIFICATIONS (FTB 909A) Field Name Length Start Description
Pos.
ENTITY TYPE 1 1 “P” – personal income tax record;
“B” – business entity tax record.
SSN or FEIN 9 2 For “P” records, primary taxpayer’s social security number; For “B” records, federal
employer identification number.
LAST NAME 40 11 For “P” records, the primary taxpayer’s last name; For “B” records, business name.
FIRST NAME 11 51 For “P” records ONLY.
MIDDLE INITIAL 1 62 For “P” records ONLY.
SPOUSE SSN 9 63 For “P” records filed with a joint return.
SPOUSE LAST NAME 17 72 For “P” records filed with a joint return.
SPOUSE FIRST NAME 11 89 For “P” records filed with a joint return.
SPOUSE MIDDLE INITIAL 1 100 For “P” records filed with a joint return.
PBA CODE 6 101 Principal Business Activity code.
ADDRESS NUMBER 10 107
PRE-DIRECTIONAL DIRECTOR 2 117 Postal Service term (i.e., N, S, E, W, NE, NW, SE, SW).
STREET NAME 28 119
STREET SUFFIX 4 147 e.g., ST, WAY, HWY, BLVD, etc.
POST-DIRECTIONAL INDICATOR 2 151 Postal Service term (i.e., N, S, E, W, NE, NW, SE, SW).
STREET SUFFIX 2 4 153
APARTMENT/SUITE NUMBER 10 157 e.g., APT, UNIT, FL, etc.
CITY 13 167
STATE 2 180 Standard state abbreviation.
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Franchise Tax Board
City of Santa Ana
Agreement 81093
ZIP CODE 5 182 The five-digit ZIP Code assigned by the U.S.
Postal Service.
ZIP CODE SUFFIX 4 187 Provided if known.
CBT MATCH 1 191 “N” – No match per CBT data.
“Y” – Yes: CBT matched to state tax return
filed.
City Council 29 – 23 7/19/2022
EXHIBIT G
CONFIDENTIALITY STATEMENT (FTB 712)
State of California Franchise Tax Board
City/County Business Tax Program Confidentiality Statement Confidential tax data is protected from disclosure by law, regulation, and policy. Information security is strictly enforced; violators may be subject to disciplinary, civil, and/or criminal action. Protecting confidential tax data is in the best interest of the city, county, and state.
As a city/county employee, you are required to protect all information received from the Franchise Tax Board (FTB). To protect confidential tax data, you must: • Access or modify tax data solely to perform official duties. • Never access or inspect tax data for curiosity or personal reasons. • Never show or discuss confidential tax data with anyone who does not have a need to know. • Never remove confidential tax data from your worksite without authorization. • Place confidential tax data in approved locations only.
Unauthorized inspection, access, use, or disclosure of confidential tax data is a crime under state laws including, but not limited to, California Revenue and Taxation Code Sections 19542 and 19552 and Penal Code Section 502. Unauthorized access, inspection, use, or disclosure may result in either or both of the following: • State criminal action. • Taxpayer civil action.
I certify that I have read the confidentiality statement printed above. I further certify and understand that unauthorized access, inspection, use, or disclosure of confidential information may be punishable as a crime and may result in disciplinary and/or civil action against me.
Each city/county employee accessing FTB data must retain a signed copy of this form and provide it to FTB upon request.
FTB 712 (REV 06-2016)
Name (print)
Signature Dat
City Council 29 – 24 7/19/2022
City Council 29 – 25 7/19/2022
Public Works Agency
www.santa-ana.org/pw
Item # 30
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
July 19, 2022
TOPIC: Vacate Portion of Alley
AGENDA TITLE
Adopt a Resolution of Intent to Vacate a Portion of Alley North of Second Street between Broadway and Sycamore Street, Abandonment 21-01
RECOMMENDED ACTION
Adopt a resolution which declares the City’s intent to vacate a portion of alley north of Second Street between Broadway and Sycamore Street, and which sets a public hearing for August 16, 2022.
DISCUSSION
On December 2, 2014, City Council approved the execution of a Right of Entry and License Agreement (license) with Corbiz, LLC, (Corbiz) to install and maintain improvements within the alley north of Second Street between Broadway and Sycamore Street. The portion of alley subject to the license is adjacent to the Southern Counties Gas Company (SCG) Building at 207 West Second Street. The existing license allowed for the space to be improved and used as an enclosed patio and utility area. Because of the long-term nature of the patio improvements, and the absence of need to use the portion of alley for public access, Corbiz has requested the City vacate the right of way.
The requested vacation area is a portion of a north-south aligned, dead-end alley situated between the Santora Building at 207 North Broadway and the SCG Building (Exhibit 1 and 2). The alley is connected to Second Street in the Artists Village and terminates at a private parking lot owned by Corbiz at 214 North Sycamore Street.
Prior to the construction of the patio improvements in 2014, the alley space had long been underutilized and subject to criminal activity and trash accumulation. In recent years, the owner of the SCG Building, Corbiz, has constructed improvements within the remaining portion of alley, including removal of the outdated archway at the alley’s northerly terminus, reconstruction of the stairs and access ramp, installation of drainage improvements, and replacement of the pavement tiles.
According to a title report submitted by the applicant, the City owns an easement over the portion of alley, which if vacated would revert to Corbiz and would be incorporated into the City Council 30 – 1 7/19/2022
Resolution to Vacate Portion of Alley
July 19, 2022