1 4) Lessor expressly reserves the right to lease, convey, or encumber the Lease Premises, in whole or in part, during the Lease term for any purpose not inconsistent or incompatible with the rights or privileges of Lessee under this Lease. b) Encumbrances
The Lease Premises may be subject to pre - existing contracts, leases, licenses, easements, encumbrances, and claims and is made without warranty by Lessor of title, condition, or fitness of the land for the stated or intended purpose.
7. RULES, REGULATIONS, AND TAXES
a) Lessee shall comply with and be bound by all presently existing or subsequently enacted rules, regulations, statutes or ordinances ofthe State Lands Commission or any Regulatory Agency. Occupancy or use of the Lease Premises provides no exemption from applicable regulations including, but not limited to, federal, state, county and local regulations, regulations promoting public health, safety, or welfare, building codes, zoning ordinances, and sanitation regulations. Lessee expressly acknowledges that Regulatory Agencies have jurisdiction over the Lease Premises unless such laws are in direct conflict with state law or public trust principles. b) Lessee understands and agrees that a necessary condition for the granting and continued existence ofthis Lease is that Lessee obtains and maintains all permits or other entitlements. Lessee expressly acknowledges that issuance of this Lease does not substitute for, or provide preference in obtaining authorizations from other Regulatory Agencies. c) Taxes
1) In addition to the rent due under this Lease, Lessee accepts responsibility for and shall pay any and all real and personal property taxes, including possessory interest taxes, assessments, special assessments, user fees, service charges, and other charges of any description levied, imposed on, assessed, or associated with the leasehold interest, Improvements on the Lease Premises, any business or activity occurring on the Lease Premises, the Lease Premises itself, or any portion thereof, levied by any governmental agency or entity. Such payment shall not reduce rent due Lessor under this Lease and Lessor shall have no liability for such payment.
2) In the event that this Lease commences, terminates or expires during a tax year, Lessee shall pay the taxes for the period of such year during which this Lease was in effect.
3) Any and all taxes and assessments and installments oftaxes and assessments required to be paid by Lessee under this Lease shall be paid when due and the official and original receipt for the payment of such tax, assessment, or installment shall be delivered to Lessor upon request.
4) Lessee shall indemnify and hold Lessor, the Lease Premises, and any Improvements now or hereafter located thereon, free and harmless from any liability, loss, or Damages resulting from any taxes, assessments, or other charges required by this Lease to be paid by Lessee and from all interest, penalties, and other sums imposed thereon and from any sales or other proceedings to enforce collection of any such taxes, assessments, or other charges.
8. INDEMNITY
a) Lessee' s use of the Lease Premises and any Improvements thereon is at Lessee' s sole and exclusive risk. b) In addition to any other obligation to indemnify Lessor as otherwise provided in this Lease, except to the extent caused by the sole negligence and/ or willful misconduct of the Lessor, Lessee shall indemnify, hold harmless, and, at the option of Lessor, defend Lessor, its officers, agents, and employees from any and all Damages resulting from Lessee' s occupation and use of the Lease Premises. Lessee shall reimburse Lessor in full for all reasonable costs and attorneys' fees, specifically including, without limitation, any Damages arising by reason of., (1) The issuance, enjoyment, interpretation, Breach, or Default of this Lease; ( 2) The challenge to or defense of any environmental review upon which the issuance ofthis Lease is based; ( 3) The death or injury of any person, or damage to or destruction ofany property from any cause whatever in any way connected with the Lease Premises, or with any ofthe Improvements or personal property the Lease Premises; ( 4) The condition of the Lease Premises, or Improvements on the Lease Premises; ( 5) An act or omission on the Lease Premises by Lessee or any person in, on, or about the Lease Premises; ( 6) Any work performed on the Lease Premises or material furnished to the Lease Premises; ( 7) Lessee' s failure to comply with any material legal or other requirement validly imposed on Lessee or the Lease Premises by a Regulatory Agency. c) The reimbursement provisions ofthis Paragraph 8 shall not apply to any claims, litigation, or other actions which may be brought by either Lessee or Lessor against each other.
d) Nothing in this paragraph shall be construed as requiring that Lessor defend itself against all or any aspect of any challenge to this Lease or any associated environmental review. However, Lessee may take whatever legal action is available to it to defend this Form51. 16 ( Rev. 10/ 14)
Lease or any associated environmental review against any challenge by a third party, whether or not Lessor chooses to raise a defense against such a challenge.
e) Lessee shall notify Lessor immediately in case of any accident, injury, or casualty on the Lease Premises.
9. INSURANCE
a) Lessee shall obtain and maintain in full force and effect during the term ofthis Lease comprehensive general liability insurance and property damage insurance, with such coverage and limits as may be reasonably requested by Lessor from time to time, but in no event for less than the sum( s) specified against any and all claims or liability arising out of the ownership, use, occupancy, condition, or maintenance of the Lease Premises and all Improvements. b) The insurance policy shall identify the Lease by its assigned number. The specific Improvements shall also be generally identified, as well as their location on state owned property. The coverage provided shall be primary and non - contributing. Lessee shall keep such policy current. Lessor shall be named as a " certificate holder" and /or an " additional interest" on the policy. Lessee shall provide Lessor with a current certificate of insurance at all times. At Lessor' s request, Lessee shall provide a full copy ofthe current insurance policy, along with any and all endorsements or other such documents affecting the coverage. Lessor will not be responsible for any premiums or other assessments on the policy. c) The insurance coverage specified in this Lease shall be in effect at all times during the Lease term and subsequently until Lessor has either accepted all of the Lease Premises as improved or restored by Lessee as provided elsewhere in this Lease. Lessee shall notify Lessor within five ( 5) business days if the insurance is canceled for any reason.
10. SURETY BOND
a) When required by Section 1 of this Lease, Lessee shall provide a surety bond or other security device acceptable to Lessor, for the specified amount, and naming the State of California, California State Lands Commission as the assured, to guarantee to Lessor the faithful observance and performance by Lessee of all of the terms, covenants, and conditions of this Lease. _ b) Lessor may require an increase in the amount of the surety bond or other security device to cover any additionally authorized Improvements, any modification of consideration, or to provide for inflation or other increased need for security. The surety bond or other security device maybe increased on each fifth anniversary of the beginning date of this Lease. Should Lessor fail to exercise such right effective on any fifth anniversary, it may do so effective on any one ( 1) of the next four ( 4) anniversaries following such fifth anniversary without prejudice to its right to effect such modification on the next or any succeeding fifth anniversary. No such modification shall become effective unless Lessee is given at least thirty ( 30) days' notice prior to the date of the Commission meeting wherein the modification of the bond or security is considered, or thirty ( 30) days' notice prior to the effective date of the increase, whichever provides more notice.
c) The surety bond or other security device shall be maintained in full force and effect at all times during the Lease term and subsequently until Lessor has either accepted all ofthe Lease Premises as improved or restored by Lessee as provided elsewhere in this Lease. Lessee must first seek approval of Lessor before changing the type of security device used, or the bond holder.
11. ASSIGNMENT, ENCUMBRANCING OR SUBLETTING
a) Lessee shall not either voluntarily or by operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease and shall not sublet the Lease Premises, in whole or in part, or allow any person other than the Lessee' s employees, agents, servants and invitees to occupy or use all or any portion ofthe Lease Premises without the prior written consent of Lessor, which consent shall not be unreasonably withheld.
1) Notwithstanding the foregoing prohibition against transfer and assignment, the Lease may be transferred by Lessee if the transfer is caused by the death of a spouse and the full interest of the deceased spouse is transferred to a surviving spouse; or the transfer is caused by the dissolution of the marr iage of Lessee and the full interest of one of the spouses is transferred to the other spouse. In the event of such a transfer, Lessor shall be notified in writing within 30 days of the transfer. 2) Notice to Lessor of Successor Trustee( s): In the event this Lease is held in trust, and the Lessee is a trustee thereof, the substitution or succession of a new trustee shall not be an assignment or transfer for the purposes of this Paragraph. Lessee ( and by operation of law, any successor trustee) agrees to provide prompt notice to Lessor of any succession or substitution of trustee in accordance with Paragraph 16( c) of General Provisions, no later than sixty ( 60) days after the named trustee as appears on the face of this Lease becomes unable or ceases to serve as trustee for any reason. b) The following shall be deemed to be an assignment or transfer within the meaning of this Lease:
1) If Lessee is a business entity, any dissolution, merger, consolidation or other reorganization of Lessee, or the sale or other Form5l. 16 ( Rev. 10/ 14)
u. .....,. ..,., h,+. <.- x ,_,. , A, _ - , c. e. :..,., G. > a. - ea ., - 1. K#' se'- •... ,.' K. aa>- an^ Nbe.. ce-, rw.Ai 4 transfer of substantially all the assets of Lessee. If Lessee is a publicly traded entity, transfers of interests in Lessee shall not constitute an assignment requiring the consent of Lessor. 2) If Lessee is a partnership, a transfer of any interest of a general partner, a withdrawal of any general partner from the partnership, or the dissolution of the partnership.
c) Ifthis Lease is for sovereign lands appurtenant to adjoining littoral or riparian land, Lessee shall not transfer or assign its ownership interest,or use rights in such adjoining lands separately from the leasehold rights granted herein without the prior written consent of Lessor.
d) If Lessee desires to assign, sublet, encumber or otherwise transfer all or any portion of the Lease Premises, Lessee shall do all of the following:
1) Give not less than 90 days' prior written notice to Lessor; 2) Provide the name, complete business organization, operational structure, and formation documents of the proposed assignee, sublessee, secured third party, or other transferee; and the nature of the use of and interest in the Lease Premises proposed by the assignee, sublessee, secured third party or other transferee. 3) Provide the terms and conditions of the proposed assignment, sublease, or encumbrance or other transfer; 4) Provide audited financial statements for the two most recently completed fiscal years of the proposed assignee, sublessee, secured party or other transferee; and provide pro forma financial statements showing the projected income, expense and financial condition resulting from use of the Lease Premises; and 5) Provide such additional or supplemental information as Lessor may reasonably request concerning the proposed assignee, sublessee, secured party or other transferee.
6) Lessor will evaluate proposed assignees, sublessees, secured third parties and other transferees and grant approval or disapproval according to standards of commercial reasonableness considering the following factors within the context of the proposed use: the proposed party' s financial strength and reliability, their business experience and expertise, their personal and business reputation, their managerial and operational skills, their proposed use and projected rental, as well as other relevant factors.
e) Lessor shall have a reasonable period oftime from the receipt of all documents and other information required under this provision to grant or deny its approval of the proposed party. Lessor may reevaluate the rent, insurance and /or bond provisions ofthis Lease, and may condition its approval of the proposed assignment, sublease; hypothecation, mortgage, or other transfer on the parry' s acceptance ofthe new terms. Lessee' s rights stated in this paragraph shall apply regardless ofwhether the proposed transfer coincides with a regular rent review period as stated in Section 3 Paragraph 3( c) above. f) Lessee' s mortgage or hypothecation of this Lease, if approved by Lessor, shall be subject to terms and conditions imposed by a separately negotiated encumbrancing agreement.
g) Upon the express written assumption of all obligations and duties under this Lease by an assignee approved by Lessor, the Lessee may be released from all liability under this Lease arising after the effective date of assignment and not associated with Lessee' s use, possession or occupation of or activities on the Lease Premises; except as to any hazardous wastes, substances or materials as defined under federal, state or local law, regulation, or ordinance manufactured, generated, used, placed, disposed, stored or transported on the Lease Premises during Lessee' s tenancy.
h) If the Lessee files a petition or an order for relief is entered against Lessee, under Chapters 7, 95 11 or 13 of the Bankruptcy Code 11 USC Sect. 101, et seq.) then the trustee or debtor -in- possession must elect to assume or reject this Lease within sixty ( 60) days after filing ofthe petition or appointment of the trustee, or the Lease shall be deemed to have been rejected, and Lessor shall be entitled to immediate possession of the Lease Premises. No assumption or assignment of this Lease shall be effective unless it is in writing and unless the trustee or debtor -in- possession has cured all Defaults under this Lease ( monetary and non - monetary) or has provided Lessor with adequate assurances ( 1) that within ten ( 10) days from the date of such assumption or assignment, all monetary Defaults under this Lease will be cured; and ( 2) that within thirty ( 30) days from the date of such assumption, all non - monetary Defaults under this Lease will be cured; and ( 3) that all provisions of this Lease will be satisfactorily performed in the future.
Form5I. 16 ( Rev. 10/ 14)
i +.,. eJvn#+ .. PIf. cep
i) In the event of any transfer or assignment, under this Paragraph I 1 or by any other means authorized by this Lease, the Lease terms shall be for the remaining years existing on the Lease prior to the transfer or assignment. A transfer or assignment shall not extend the term of this Lease.
12. DEFAULT AND REMEDIES
a) Default
The occurrence of any one or more of the following events shall immediately and without further notice constitute a Default of this Lease:
1) Lessee' s failure to make any payment of rent, royalty, or other consideration as required under this Lease; or. 2) Lessee' s failure to obtain or maintain liability insurance or a surety bond or other security device as required under this Lease; or
3) Lessee' s abandonment ofthe Lease Premises ( including the covenant for continuous use as provided for in Paragraph 5( b)) during the Lease term; or
4) Lessee' s failure to obtain and maintain all necessary governmental permits or other entitlements; or 5) The maintenance of the Lease Premises in violation "of, or failure to comply with, any applicable provisions of any Regulatory Agency, Environmental Law, or maintenance of the Lease Premises in a condition constituting nuisance; or 6) Lessee' s Failure to commence to construct and to complete construction of the Improvements authorized by this Lease within the time limits specified in this Lease.
7) Lessee is found to sublet or otherwise surrender daily management and control of the Lease Premises to a third party without the knowledge, expressed written consent or authorization of the Lessor. b) Lessee' s failure to observe or perform any other term, covenant, or condition of this Lease when such failure shall continue for a period of thirty ( 30) days after Lessor's giving written notice shall constitute a Default of this lease. However, if the nature of Lessee' s Default under this paragraph is such that more than thirty ( 30) days are reasonably required for its cure, then Lessee shall not be deemed to be in Default if Lessee commences such cure within such thirty ( 30) day period and diligently proceeds with such cure to completion.
c) Should Lessee Breach any term, covenant, or condition ofthis Lease under Paragraph 12( b) above three ( 3) times in any three hundred and sixty -five (365) day period, the third Breach will be a Default under this Lease and Lessor will be entitled to immediately terminate this Lease, and take other appropriate action. Lessor will provide written notice of each Breach as provided above, and provide written notice that future Breaches will constitute immediate Default with no cure period. d) Remedies
In the event of a Default by Lessee and Lessee' s failure to cure such Default if such a cure period is applicable, Lessor may at any time and with or without notice do any one or more of the following in addition to any rights or remedies permitted by law:
1) Re -enter the Lease Premises, remove all persons and property, and repossess and enjoy such premises; or 2) Terminate this Lease and Lessee' s right of possession of the Lease Premises by any lawful means. The termination shall _ not relieve Lessee of any obligation, monetary or otherwise, which has accrued prior to the date of termination. Such termination shall be effective upon Lessor' s giving written notice and upon Lessee' s receipt of such notice. Lessee shall immediately surrender possession ofthe Lease Premises to Lessor. Lessor shall be entitled to recover from Lessee all amounts to which Lessor is entitled pursuant to Section 1951. 2 of the California Civil Code, or any other provision of law, including any necessary Repair, renovation, alteration, remediation, or removal of Improvements; or 3) Maintain this Lease in full force and effect and recover any rent, royalty, or other consideration as it becomes due without terminating Lessee's right of possession regardless of whether Lessee shall have abandoned the Lease Premises, subject to the conditions imposed by Cal. Civil Code § 1951. 2; or
4) Exercise any other right or remedy which Lessor may have at law or equity.
Form51. 16 ( Rev. 10/ 14)
e) Determination of Rental Value
If rent under this Lease is calculated as a percentage of Lessee' s income attributable to the Lease Premises and Lessee abandons the Lease Premises during some or all ofthe applicable period, then the reasonable rental value shall be the percentage of proceeds Lessor would have received had Lessee operated the Lease Premises in the usual and customary manner. t) Waiver of Rights
The failure or delay of either party to exercise any right or remedy shall not be construed as a waiver of such right or remedy or any Breach by the other party. Lessor' s acceptance of any rent shall not be considered a waiver of any preexisting Breach by Lessee other than the failure to pay the particular rent accepted regardless of Lessor' s knowledge ofthe preexisting Breach at the time rent is accepted.
13. RESTORATION OF LEASE PREMISES AND ENVIRONMENTAL MATTERS a) Restoration of Lease Premises
1) Upon expiration or sooner termination of this Lease, Lessee must immediately surrender possession ofthe Lease Premises to Lessor. Prior to the time of surrender, Lessee must remove all or any Improvements together with the debris and all parts of any such Improvements at its sole expense and risk, regardless of whether Lessee actually constructed or placed the Improvements on the Lease Premises; or Lessor, at its sole and absolute discretion, may itself remove or have removed all or any portion of such Improvements at Lessee' s sole expense. Lessor may waive all or any part of this obligation in its sole discretion if doing so is in the best interests of the State. 2) As a separate and related obligation, Lessee shall restore the Lease Premises as nearly as possible to the conditions existing prior to the installation or construction of any Improvements. For purposes ofthis Lease, restoration includes removal of any landscaping; removal of any Hazardous Materials; and to the extent possible, undoing any grading, fill, excavation, or similar alterations of the natural features of the Lease Premises. Lessor may waive all or any part of this obligation in its sole and absolute discretion.
3) Unless otherwise provided for in this Lease, Lessee shall submit to Lessor no later than one ( 1) year prior to the expiration of this Lease either: ( a) an application and minimum expense deposit for a new lease for the continued use ofthe Lease Premises, or ( b) a plan for the restoration of the Lease Premises to be completed prior to the expiration of the lease term together with a timeline for obtaining all necessary permits and conducting the work prior to the expiration ofthis Lease. 4) In removing any or all Improvements, or conducting any restoration work, Lessee shall be required to obtain any permits or other governmental approvals as may then be required by any Regulatory Agency, including, without limitation, any Environmental Law. -
5) Lessor may, upon written notice, in its sole and absolute discretion; accept title to any or all Improvements at the termination of this Lease. Lessor shall notify Lessee that Lessor intends to take title to any or all Improvements within six ( 6) months of Lessee submitting a plan for restoration under Paragraph 13( a)( 3)( b) above. If Lessor elects to take title to any such Improvements, Lessee shall deliver to Lessor such documentation as may be necessary to convey title to such Improvements to Lessor free and clear of any liens, mortgages, loans, or any other encumbrances. Lessor shall not pay, and Lessee shall not be entitled to compensation for Lessor' s taking title to such property. b) Environmental Matters
1) Lessee' s Obligations:
i) Lessee will not use, occupy, or permit any portion of the Lease Premises to be used or occupied in violation of any Environmental Law. Lessee shall not manufacture or generate or store Hazardous Material on the Lease Premises unless specifically authorized under other terms of this Lease. ii) Lessee shall practice conservation of water, energy, and other natural resources. iii) Lessee shall notify Lessor and the appropriate governmental emergency response agency, or agencies immediately in the event of any release or threatened release of any Hazardous Material. 2) Lessor may at any time during the Lease term require Lessee to conduct at its own expense and by a contractor approved by Lessor an independent environmental site assessment or inspection for the presence or suspected presence of Hazardous Material generated, used, placed, disposed, stored, or transported on the Lease Premises during the term of the Lease. Lessee Form51. 16 ( Rev. 10/ 14)
d.+• ...- _ _ era._ x,.. s _ ..,...... . . -. .. -.. ._. ... S.. n - i? ++ - u,.w ht,: !- -. x'35.,.« v.?..} a: ,} shall provide the results of the assessment or inspection to Lessor and the appropriate governmental response agency or agencies and shall further be responsible for removing or taking other appropriate remedial action regarding such Hazardous Material in accordance with applicable Environmental Law.
3) Environmental Indemnity.
Lessee shall indemnify, defend, and hold Lessor and Lessor's, officer, appointees, volunteers, employees, agents, successors and assigns free and harmless from and against all Damages that may at anytime be imposed upon, incurred by, or asserted or awarded against Lessor in connection with or arising from any Breach of Lessee' s obligations hereunder; or out of any violation by Lessee of any Environmental Law; or resulting in the imposition of any lien or claim for the recovery of any costs for environmental cleanup or other response costs relating to the release or threatened release of Hazardous Materials on the Lease Premises during the Lessee' s tenancy. This obligation shall include any prior leases between Lessor and Lessee and will continue through any periods Lessee is in holdover, unlawful detainer, or any subsequent month -to -month tenancies created by operation of law. Lessee' s obligations hereunder will survive the expiration or sooner termination of this Lease. . 4) Violation ofthis section shall constitute grounds for termination of the Lease. Lessor, shall notify Lessee when, in Lessor' s opinion, Lessee has violated the provisions of this section. Lessee shall immediately discontinue the conduct and respond within five ( 5) business days. Lessee shall take all measures necessary to remedy the condition.
14. QUITCLAIM
Lessee shall, upon the early termination of this Lease and at Lessor' s request, execute and deliver to Lessor in a form provided by Lessor a good and sufficient release of all rights under this Lease. Should Lessee fail or refuse to deliver such a release, Lessor may record a written notice reciting such failure or refusal. This written notice shall, from the date of its recordation, be conclusive evidence against Lessee of the termination of this Lease and all other claimants.
15. HOLDING -OVER -
a) This Lease shall terminate without further notice upon the expiration of the term of this Lease. Lessee shall have removed any Improvements and completed any restoration as required by Lessor prior to the expiration of this Lease, and shall surrender possession ofthe Lease Premises. Any failure by the Lessee to remove Improvements, restore the Lease Premises, and /or surrender possession of the Lease Premises at the expiration or sooner termination of this Lease shall not constitute a renewal or extension and shall not give Lessee any rights in or to the Lease Premises or any part thereof except as expressly provided in this Lease. Lessee shall be deemed in unlawful detainer of the Lease Premises and Lessor shall be entitled to all resulting legal remedies. b) Lessor may, in its sole discretion, choose to accept Rent for the Lease Premises instead of immediately taking legal action to recover possession ofthe Lease Premises. Any tenancy created by operation oflaw on Lessor' s acceptance ofrent shall be deemed a month -to -month tenancy regardless of what sum or sums Lessee delivers to Lessor. Except as set forth below, any subsequent tenancy created in this manner shall be on the same terms, covenants, and conditions set forth in this Lease insofar as such terms, covenants, and conditions can be applicable to a month -to -month tenancy c) In recognition ofthe increased accounting, land management, and supervisory stafftime required for month -to -month tenancies, the rent for each month or any portion thereof during such holdover period may be an amount equal to one hundred fifty percent 150%) of one - twelfth ( 1/ 12) of the total compensation for the most recent year paid. In the event this Lease does not require monetary compensation, Lessor shall have the right to establish rent based on the fair market value of the Lease Premises. The month -to -month tenancy may be terminated by Lessee or Lessor upon thirty (30) calendar days' prior written notice to the other.
16. ADDITIONAL PROVISIONS
a) Waiver
I) No term, covenant, or condition of this Lease and no omission, neglect, Default or Breach of any such term, covenant or condition shall be deemed to have been waived by Lessors acceptance of a late or nonconforming performance or otherwise, unless such a waiver is expressly acknowledged by Lessor in writing. No delay or omission of Lessor to exercise any right or power arising from any omission, neglect, Default or Breach of term, covenant, or condition of this Lease shall be construed as a waiver or any acquiescence therein.
2) Any such waiver shall not be deemed to be a waiver of any other term, covenant or condition; of any successive Breaches of the same term, covenant, or condition; or of any other Default or Breach of any term, covenant or condition of this Lease. b) Time
Time is of the essence for this Lease and each and all of its terms, covenants or conditions in which performance is a factor.
Form5L16 ( Rev. 10/ 14)
c) Notice
All notices required to be given under this Lease shall be given in writing, sent by U. S. Mail with postage prepaid, to Lessor at the offices of the State Lands Commission and the Lessee at the address specified in this Lease. Lessee shall give Lessor notice of any change in its name or address.
d) Consent
Where Lessor' s consent is required under this Lease its consent for one transaction or event shall not be deemed to be a consent to any subsequent occurrence of the same or any other transaction or event. - e) Changes
This Lease may be terminated and its term, covenants, and conditions amended, revised, or supplemented only by mutual written agreement of the parties.
f) Successors -
The terms, covenants, and conditions of this Lease shall extend to and be binding upon and inure to the benefit of the heirs, successors, and assigns ofthe respective parties.
g) Joint and Several Obligation
If more than one Lessee is a party to this Lease, the obligations of the Lessees shall be joint and several. h) Captions
The section and paragraph captions used in this Lease are for the convenience of the parties. The captions are not controlling and shall have no effect upon the construction or interpretation of this Lease. i) Severability
If any term, covenant or condition ofthis Lease is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Lease shall not be affected thereby, and each term and provision of this Lease shall remain valid and enforceable to the fullest extent permitted by law.
j) Representations
Lessee agrees that no representations have been made by Lessor or by any person or agent acting for Lessor. Lessor and Lessee agree and acknowledge that this document contains the entire agreement of the parties, that there are no verbal agreements, representations, warranties or other understandings affecting this Lease, and Lessor and Lessee, as a material part of the consideration ofthis Lease, waive all claims against the other for rescission, damages, or otherwise by reason of any alleged covenant, agreement or understanding not contained in this Lease.
k) Gender and Plurality
In this Lease, the masculine gender includes both the feminine and neuter, and the singular number includes the plural whenever the context so requires. -
1) Survival of Certain Covenants
All covenants pertaining to bond, insurance, indemnification, restoration obligations, Breach, Default, and remedies shall survive the expiration or earlier termination of this Lease until Lessee has fulfilled all obligations to restore the Lease Premises as required by this Lease. -
m) Counterparts
This agreement may be executed in any number of counterparts and by different parties in separate counterparts. Each counterpart when so executed shall be deemed to be an original and all of which together shall constitute one and the same agreement.
n) Delegation of Authority
Lessor and Lessee acknowledge Lessor as defined herein includes the Commission Members, their alternates or designees, and the staff of the Commission. The ability of staff of the Commission to give consent, or take other discretionary actions described herein will be as described in the then - current delegation of authority to Commission staff. All other powers are reserved to the Commission.
Form51. 16 ( Rev. 10/ 14)
STATE OF CALIFORNIA - STATE LANDS COMMISSION
LEASE NO. PRC 3792. 1
This Lease shall become effective only when approved by and executed on behalf of the State Lands Commission of the State of California and a duly executed copy has been delivered to Lessee. The submission of this Lease by Lessor, its agent, or representative for examination by Lessee does not constitute an option or offer to lease the Lease Premises upon the terms and conditions contained herein, or a reservation ofthe Lease Premises in favor of Lessee. Lessee' s submission of an executed copy ofthis Lease to Lessor shall constitute an offer to Lessor to lease the Lease Premises on the terms and conditions set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date hereafter affixed.
LESSEE:
CITY OF SEAL BEACH
Robin L. Roberts, C
Craig City Attorney
ATTACH NOTARY ACKNOWLEDGMENT
LESSOR:
STATE OF CALIFORNIA
STATE LANDS COMMISSION
By:
Robert Brian Bugsch
Chief, Land Management Division
JUN 2 2 2018
Date:
Execution ofthis document was authorized by
the California State Lands Commission on
666. 27, 2018
Month Day Year)
Form5l. 16 ( Rev. 10114)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Sacramento
On June 22, 2018 before me, Cindy A. Cano, Notary Public insert name and title of the officer)
personally appeared
Robert Brian Bugsch
who proved to me on the basis of satisfactory evidence to be the person/) whose name(o Is /are• subscribed to the within instrument and acknowledged tome that he /s ithey executed the same in his /herlt & authorized capacity( ies), and that by his /healheir- signature() on the instrument the person$), or the entity upon behalf of which the person) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal. +. INDYA. CANO
U COMM. # 2137210
ry . a NOTARY PUBLIC - CALIFORNIAL)
1 2 SACRAMENTO COUNTY 0
COMM. EXPIRES DEC. 17, 2019 -
Signature ( Seal)
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ACKNOWLEDGMENT
A notary public or other officer completing.this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of
On N I \ before me2,& C ` GYl A
I n i(
insert name drid title of the officer)
personally appeared T\ r a' nA- lyi
who proved to me on the basis -of satisfactory evidence toqab the person( s) whose name( s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity( ies), and that by his /her /their signature( s) on the instrument the person( s), or the entity upon behalf of which the person( s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
ROBIN LYNN ROBERTS
WITNESS my hand and official seal. COMM. 02078186 z
Notary Public • California o
Orange County
MY Comm, EM Tres se . 13, 2018
Signature ( Seal)
EXHIBIT A
PRC 3792.1
LAND DESCRIPTION
A parcel of tide and submerged land, land situate in the bed of San Pedro Bay, lying adjacent to protracted Section 14, TSS, R12W, SBM as shown on the Official Township Plat, approved April 7, 1914, Orange County, State of California, and more particularly described as follows:
COMMENCING at the southeast corner of Tract No. 1 in the City of Seal Beach, County of Orange, State of California, said corner being the intersection of the northeast line of Electric Avenue with the southern line of Seal Way as shown upon the map of said Tract No. 1, recorded in Book 9 of Miscellaneous Maps at
southern line of Seal Way as shown on said map to a point which' bears easterly along said line N 77 °28' 25" E 210.68 feet from the intersection of the southerly prolongation of the centerline of Neptune Avenue and the southern line of Seal Way, said point being the POINT OF BEGINNING; thence continuing westerly along the souther line of Seal Way as shown on said map to the westerly boundary of Tract No. 1; thence northwesterly from said point in a direct line 3, 584. 36 feet more or less to an intersection with the southwesterly prolongation of the centerline of Third Street in the City of Seal Beach as said street is shown upon the map of Tract No. 2, recorded in Book 9 of Miscellaneous Maps at Page 3, records of said county, at a point located 255. 5 feet southwesterly from the southwest line of Ocean Blvd.; thence continuing northwesterly along the prolongation of the foregoing course 590. 18 feet more or less to the intersection with the southwesterly prolongation of the southeasterly line of First Street (60 feet wide) as shown upon the map of Bay City, recorded in Book 3 of Miscellaneous Maps at Page 19; thence northeasterly along said line of First Street to a point distant 273.93 feet southwesterly from the southwest line of Ocean Blvd.; thence N 58' 54' W, 55. 32 feet; thence N 22 °51' W, 366. 64 feet; thence S 18 023' 53" W, 124.63 feet; thence S 28025' 47" W, 409.83 feet; thence S 31034' 48" W, 209. 45 feet; thence S 26 °05' 00" W, 274. 99 feet; thence S 19000' 57" W, 195. 60 feet; thence S 03 °07' 08" W, 1177. 32 feet; thence S 58 043' 00" E, 4428. 06 feet more or less to an intersection with southwesterly prolongation of the initial course in the description of Parcel 2, as described in the Second Amended Complaint in Condemnation, No, 3436 -RJ Civil; United State of America, Plaintiff, vs. 4, 783 acres of land, more or less, in Orange County, State of California, et al, filed in the District Court of the United States in and for the Southern District of California, Central Division; thence Page I 1 of 2
V1 n1AA,", " K A ' -) Fi,
northeasterly along said southwesterly prolongation to the POINT OF BEGINNING.
END OF DESCRIPTION
Revised 7/ 05/ 16 by the California State Lands Commission Boundary Unit Revised description based on the { Parcel 1} description found in lease file PRC 2777. 1 ( W.O. 6568) executed June 22, 1976.
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CITY, OF SEAL BEACH
VZ aEIJER.AL LEASE —
PUBLIC r1GENCY USE
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This Exhibit is Soiely, for purposes of generally defining the letlie premises. is hayc<l on unverified information provided by the Lcssce orollter Iwnics arld is not intended m be, nor shall it be construed as, a waiver or [irnkation of any Slate interest in thi` subjnct orany other pnt fserty. SITE
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PRC 3792. 1
SUBLEASE
STATE OF CALIFORNIA
STATE LANDS COMMISSION
Pursuant to Commission Minute Item No. dated, February 27, 2018, the herein sublease between, City of Seal Beach and DCOR, LLC, under a portion of State Lease PRC No. 3792. 1, is hereby approved. Such approval ( 1) does not bind the State Lands Commission to the terms and conditions of the sublease in any way; ( 2) is conditional upon the parties of the sublease fully complying with the terms and conditions of State Lease No. PRC 3792. 1; and ( 3) unless amended, this endorsement is only valid as long as there is a valid lease in place between the State Lands Commission and the City of Seal Beach for the subject property.
BY: /
BRIAN BUGSCH
Chief Land Management Division
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EXHIBIT C -2
PRC 3792. 1
SUBLEASE
ENDORSEMENT
STATE OF CALIFORNIA
STATE LANDS COMMISSION
Pursuant to Commission Minute Item No. dated, February 27, 2018, the herein sublease between, City of Seal Beach and SoCal Holdings, LLC, under a portion of State Lease PRC No. 3792. 1, is hereby approved. Such approval ( 1) does not bind the State Lands Commission to the terms and conditions of the sublease in any way; ( 2) is conditional upon the parties of the sublease fully complying with the terms and conditions of State Lease No. PRC 3792. 1; and ( 3) unless amended, this endorsement is only valid as long as there is a valid lease in place between the State Lands Commission and the City of Seal Beach for the subject property.
BY:
BRIAN BUGSCH
Chief Land Management Division
EXHIBIT =.0 -3
PRC 3792. 1
SUBLEASE
ENDORSEMENT
STATE OF CALIFORNIA
STATE LANDS COMMISSION
Pursuant to Commission Minute Item No. 6dated, February 27, 2018, the herein sublease between, City of Seal Beach and Bay City LLC, under a portion of State Lease PRC No. 3792. 1, is hereby approved. Such approval ( 1) does not bind the State Lands Commission to the terms and conditions of the sublease in any way; (2) is conditional upon the parties of the sublease fully complying with the terms and conditions of State Lease No. PRC 3792. 1; and ( 3) unless amended, this endorsement is only valid as Ion-, as there is a valid lease in place between the State Lands Commission and the City of Seal Beach for the subject property.
BY: 45
N BUGSCH
Chief Land Management Division
EXHIBIT C -4
PRC 3792. 1
SUBLEASE
STATE OF CALIFORNIA
STATE LANDS COMMISSION
Pursuant to Commission Minute Item No. dated, February 27, 2018, the herein sublease between, City of Seal Beach and ABM Parking Services, under a portion of State Lease PRC No. 3792. 1, is hereby approved. Such approval ( 1) does not bind the State Lands Commission to the terms and conditions of the sublease in any way; ( 2) is conditional upon the parties of the sublease fully complying with the terms and conditions of State Lease No. PRC 3792. 1; and ( 3) unless amended, this endorsement is only valid as long as there is a valid lease in place between the State Lands Commission and the City of Seal Beach for the subject property.
BY:_
RIAN BUGSCH
Chief Land Management Division
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STATE OF CALIFORNIA : AGREEMENT NUMBER
STANDARD AGREEMENT
STD. 213 ( new 06/ 03) REGISTRATION NUMBER
1. This Agreement is entered into between the State Agency and the Contractor named below:
STATE AGENCY' S NAME
California State Lands Commission ( State)
CONTRACTOR' S NAME
City of Seal Beach
2. The term of this
Agreement is: 30 years beginning June 22 2016 ending June 21 2046
3. The maximum amount of
this Agreement is: $ 25, 000
4. The parties agree to comply with the terms and conditions of the following exhibits which are by this reference made a part of the Agreement:
Exhibit 1 — Scope of Work 2 Page( s)
Exhibit 2 — Budget Detail and Payment Provision / Definitions and Terms 2 Page( s) Exhibit 3" — General Terms and Conditions GTC 0412017
Check mark one item below as Exhibit 4: 2 ra e s
Exhibit 4 — Special Terms and Conditions ( attached hereto as part of this Agreement) Items shown with an Asterisk (') are hereby incorporated by reference and made part of this Agreement as if attached hereto These documents can be viewed at htto:// www. dgs. ca. gov/ ols/ Resources IStandardCantractLanquage. aspx.
IN WITNESS WHEREOF. this Agreement has been executed by parties hereto.
CONTRACTOR
wherper a mrymrnuon, pannera' hip, em.J
The Citv of Seal Beach
ADDRESS
AGENCY NAME
BY
AND TITLE OF
Seal Beach. CA 90740
STATE OF CALIFORNIA
Lands Commission
TITLE OF PERSON SIGNING
tlE:bYY!1.7
Page I of 11 Pages
Department of General Services
Exempt per
Exhibit D — Reimbursement Agreement
EXHIBIT 1
SCOPE OF WORK
1. Work to be Performed — The City of Seal Beach, the " Lessee', enters into this Agreement with the California State Lands Commission, the " Commission" or "State" ( hereafter the Lessee and the Commission /State are referred to collectively as the " Parties ") for engineering review of inspection reports and review of annual summary reports of the facilities associated with Lessee' s General Lease — Public Agency Use, Lease No. PRC 3792. 1 ( Lease). The State hereby agrees to perform the following services:
A. Engineering Review: The State shall review all future structural modifications or material changes to any of the Authorized Improvements. Costs shall include, but not be limited to, actual costs for staff time for review of structural and utility safety assessment inspection reports, Geotechnical Engineering Reports, all applicable agency permits and requirements, post construction documents ( as -built plans), and limited field engineering and construction monitoring activity. Every five years a structural and utility safety assessment inspection shall be conducted. A copy of the structural and utility safety assessment inspection report shall be provided to Commission staff upon completion of the report for review by engineering staff for the term of the lease pursuant to Section 2, Special Provisions, Paragraph 2, 4, and 5 of Lease No. PRC 3792. 1.
B. Lease Management: The State shall review the Lessee' s annual summary reports. Reviewing costs shall include, but not be limited to, actual costs for staff time for review of sea -level rise and flooding vulnerability and risk assessments, berm construction and beach nourishment, updates or amendments to the Local Coastal Program, annual flooding frequency and extent, annual site photographs, schedule and nature of repair and maintenance operations, and coastal hazard remediation and removal. Every five years a summary report that details Resiliency Planning Efforts and Adaptation Strategies shall be provided to Commission staff. Work shall be performed pursuant to the requirements of the Lease detailed in Section 2, Special Provisions, Paragraph 3, 9 and 10, of Lease No. PRC 3792. 1.
C. Mutual Understanding: This Agreement is entered into by the parties hereto with the express understanding that the State cannot assure: 1) final approval of the permit or lease for the proposed Project; 2) that permits from other State or local permitting agencies are obtainable: 3) that either the State or the Lessee by entering into this Agreement is representing that the Project will go forward as proposed; and 4) that either the State or the Lessee is irrevocably committed to proceeding with this Project. Lessee understands and expressly acknowledges that the State' s review of inspection reports and plans for the Project is for the sole purpose of evaluating Lessee' s application for or compliance with a lease from the Commission, if any, and not for any other purpose.
2. Parties' Agents
A. For Engineering Review the State' s Project Officer shall be:
Chandrashekar Basavalinganadoddi, Supervising Mineral Resources Engineer California State Lands Commission
Mineral Resource Management
200 Oceangate, 121, floor
Long Beach, CA 90802
Tel. ( 562) 590 -5209
Email: Chandrashekar Basavalinganadoddiaslc. ca.00v
B. For Lease Management the State' s Project Officer shall be:
Randy Collins, Public Land Management Specialist
California State Lands Commission
100 Howe Avenue, Suite 100 South
Sacramento, CA 95825
Tel. ( 916) 574 -0900
E -mail: randy.collinsaslc.ca. gov
Exhibit D — Reimbursement Agreement
C. The Contractor' s Project Manager shall be:
Jill R. Ingram, City Manager
City of Seal Beach
211 Eighth Street
Seal Beach, CA 90740
Tel. ( 562) 431 - 2527
E -mail: jingram( e) sealbeachca. gov
3. Notices and Authorities
A. Any notice or other written communications required or permitted under this Agreement may be personally delivered in writing to the State' s Engineering or Lease Maintenance Project Officer or Applicant' s Project Manager, or may be sent by certified mail, return receipt requested, to the address stated above and shall, based on such delivery or sending, be deemed to have been effectively communicated. Either party may change such address by written notice to the other party.
Any notice given other than as provided above, shall not be deemed lobe effectively communicated until received in writing.
B. The Project Manager shall have full authority to act on behalf of the Lessee for administration of the Project. All communications given to the Project Manager shall be as binding, as if given to the Lessee.
C. The State may change its Engineering or Lease Management Project Officer at any time, by written notice to the Lessee. The Lessee may change its Project Manager at any time, by written notice to the State' s Engineering or Lease Management Project Officer.
Remainder ofPage Inlemionally Leff Blank]
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EXHIBIT 2
BUDGET AND PAYMENT PROVISIONS
1. Invoicing and Payment — Lessee agrees to reimburse the State for all reasonable costs associated with engineering review and lease maintenance according to this Standard Agreement whether prior or subsequent to the execution of this Agreement. Processing costs shall include, but not be limited to, staff time associated with those -tasks outlined in Exhibit 1, Scope of Work. Staff costs shall be computed in accordance with Section 8752 of the State Administrative Manual and shall include salaries and wages, related staff benefits and administrative overhead.
The invoice shall be mailed to the Lessee' s Project Manager. Payments shall reference the Agreement number assigned to this project and must be mailed to the following address:
California State Lands Commission
100 Howe Avenue, Suite 100 South
Sacramento, CA 95825 -8202
Attention Accounting
2. Estimated Reimbursable Costs — The initial estimated costs are based on the information and contracts existent as of the date of this Agreement. The itemized reimbursable costs estimate for work to be performed is:
A. Engineering Review Estimate: $ 15, 000
To include the following:
1. Processing and Engineering Review of structural and utility safety assessment inspection reports ( once every five years): $ 2,500 ($ 500 per year) B. Lease Management Estimate: $ 10, 000
To include the following:
1. Processing and Review of Annual Berm Summary Report: $ 9, 000 ($ 300 per year).
2. Processing and Review of Resiliency Planning Efforts and Adaptation Strategy Report Five years prior to lease expiration): $ 1, 000
3. Billings:
A. Engineering Review: Staff costs incurred by the State for Lease Management pursuant to this Agreement, as specified in Exhibit 2, paragraph 2(A), shall be billed in arrears monthly. All payments are due 30 days from the date of the invoice. The State reserves the right to demand an expense deposit equal to the remainder of the Agreement should the Lessee fail to pay invoices within the time specified. Total costs invoiced, including expense deposits, shall not exceed the dollar amount specified in this Agreement unless amended.
B. Lease Management: Staff costs incurred by the State for Lease Management pursuant to this Agreement, as specified in Exhibit 2, paragraph 2( B), shall be billed in arrears monthly. All payments are due 30 days from the date of the invoice. The State reserves the right to demand an expense deposit equal to the remainder of the Agreement should the Lessee fail to pay invoices within the time specified. Total costs invoiced, including expense deposits, shall not exceed the dollar amount specified in this Agreement unless amended.
4. Additional Costs or Services — Lessee will be advised of any estimated cost increase in writing in accordance with this Agreement should the need for additional services become known or as costs previously estimated exceed the above estimate.
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Upon notification of the need for additional funds, the Lessee shall have the option to dispute or accept the increase with all' theterms and. conditions of this Agreement being unchanged and in effect. The Lessee shall notify the State within five ( 5) days of notice of any intent to dispute the change, Non - response shall be acknowledged as acceptance of the additional charges and Lessee will be billed for the balance in accordance with the terms above.
5. Definitions and Terms - Wherever the following abbreviations and terms ( or pronouns in place of them) are used, the intent and meaning shall be interpreted as provided in this section. Working titles having a masculine gender, and pronouns referring to such said titles, are utilized in this Agreement for the sake of brevity and are not intended to refer to either sex or the neuter. All references to the singular shall refer also to the plural. All references to the plural shall refer also to the singular.
A. As used within this Agreement, the terms "Lessee" and "Contractor' are used interchangeably and are to be considered the same entity.
B. As used within this Agreement, the terms " State" and " Commission" are used interchangeably and are to be considered the same entity.
C. The term "Agreement" refers to this document as executed by the Lessee and the State. This document includes Standard Form and any attached Exhibits.
D. The term " Project Manager" refers to that person appointed or designated by the Applicant to administer the project for the Applicant.
E. The term " Project Officer" refers to that person appointed by the State to process the project application.
F. The term " Lessee' s Agent" refers to that person designated by the Lessee to provide technical assistance and support to the State in coordinating transmittal of project technical information and shall have no authority to act for the Lessee unless otherwise stated in writing by Lessee to the State' s Project Officer.
Remainder ofPage Intentionally, Left Blank]
JA
Exhibit D — Reimbursement Agreement
EXHIBIT 3
GTC 04/2017
GENERAL TERMS AND CONDITIONS
I. 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 ofthis 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 ofthis 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.
8. INDEPENDENT CONTRACTOR: Contractor, and the agents and employees of Contractor, in the performance ofthis 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
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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 ofthis 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 I. 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 ofits 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.
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.
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2) " Public purchasing body ",means the. State or the subdivision onagency making a' public purchase.
Government Code Section 4550.
b. In submitting a bid to a public purchasing body, the bidder offers and agrees that ifthe 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 ifthe 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.
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:
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Exhibit D Reimbursement Agreement
a. _Ifforthis 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. Iffor 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.)
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).)
Remainder ofPage Intentionally Left Blank]
e4x`
Exhibit D — ' Reimbursement Agreement
EXHIBIT 4
SPECIAL TERMS AND CONDITIONS
1. Type of Agreement —This Agreement between the State and the Lessee is for the reimbursement of costs, from the Lessee to the State, for Engineering Review, detailed in Exhibits 1 and 2 of this Agreement, performed by staff of the California State Lands Commission. This Agreement does not involve the procurement of goods or services from the Lessee.
2. Effective Reimbursement Period — Notwithstanding the date of Agreement approval in paragraph 1 of GTC 04/ 2017, the Lessee agrees to reimburse the State for costs detailed in Exhibits 1 and 2 of this Agreement, that accrue beginning on the date listed in form STD. 213, paragraph 2 of this Agreement until the termination of this Agreement. The term of this agreement shall extend to include any holdover period of Lease No. PRC 6674. 1.
3. This paragraph supersedes paragraph 5 of, Exhibit 3, " Indemnification ":
Indemnification — To the fullest extent permitted by law, Lessee shall defend, indemnify, and hold harmless the State of California and any and all agencies or departments thereof, including but not limited to, any and all boards, commissions, officers, agents, employees, and representatives ( Indemnitees), against any and all claims, liabilities, charges, losses, expenses, and costs, including the State' s attorneys' fees ( Liabilities), that may arise from or by reason of any action or inaction ;by the Indemnitees in connection with the work described in Exhibit 1, or any defect in design or construction of the Project. This obligation of the Lessee to indemnify, defend, and hold harmless the Indemnitees shall not apply to any Liabilities caused solely by the gross negligence or intentional acts of the State or its officers, agents, and employees; or to any claims, litigation, or to other actions brought by the Lessee against the Indemnitees in relation to the Lessee' s application or this Agreement. This provision shall survive termination of this Agreement.
4. This paragraph supersedes paragraph 6 of GTC 04/ 2014, Exhibit 3; " Disputes ":
Disputes — Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising under or relating to the performance of this Agreement which is not disposed of by Agreement shall be decided by the Project Officer, who shall reduce his decision to writing in regard to the dispute and shall transmit a copy thereof to the Lessee within thirty ( 30) days. The decision of the Project Officer shall be final and conclusive, unless within thirty ( 30) days from the date of receipt of such copy, the Lessee transmits to the State a written appeal. Said appeal shall be supported with specificity. a. In connection with any appeal proceeding under this clause, the Lessee shall be afforded an opportunity to be heard before the State Lands Commission within sixty ( 90) days of the receipt by the State of the Lessee's written appeal and to offer evidence in support of its appeal. Pending the final decision of any such dispute, the Lessee. shall proceed diligently with the performance of the Agreement - and in accordance with the written decision of the Project Officer which is the subject of the Lessee' s appeal including the payment of invoices to the State. b. The procedure described herein shall not prejudice or deny the Lessee's remedies at law. However, the Lessee agrees to exhaust the procedure described herein before pursuing remedies at law. All amounts paid to the State under protest shall be held by the State in trust until the dispute is resolved.
5. Modification — This paragraph supersedes paragraph 7 of GTC 04/ 2017, Exhibit 3, " Termination for Cause':
Either party may elect to modify the scope of work or costs associated with the Project described in Exhibit 1, Paragraphs 1( A) and 1( B) and Exhibit 2, Paragraphs 2(A) and 2( B) of this Agreement by written notice at any time prior to or during Project commencement or implementation upon ten ( 10) days written notice to the other party should the Project be revised or cancelled for any reason. The Lessee agrees that in the event of such modification of this Agreement by either party as provided above, it shall reimburse the State one hundred percent ( 100 %) of all costs incurred by the State in the performance of its obligations as described in this Agreement.
Ezhi6itD — Reimbursement Agreement -
6. Reimbursement of Costs — Lessee shall reimburse the State in full for all reasonable costs and attorney's fees, including, but not limited to, those charged it by the California Office of the Attorney General, that the State incurs in connection with the defense of any action brought against the State challenging this Agreement or any other matter related to this Agreement or the work performed by the State under this Agreement. In addition, Lessee shall reimburse the State for any court costs and reasonable attorney fees that the State may be required by a court to pay as. a result of such. action. Lessee may participate in the defense of the action, but its participation shall hot relieve it of its obligations under this Paragraph. The provision of this Paragraph shall not apply to any claims, litigation or other actions which may be brought by the Parties against each other and shall not apply to the extent that any such obligation is void or otherwise unenforceable under applicable law in effect on or validly retroactive to the date of this Agreement. Nothing in this Paragraph shall be construed to require the State to defend itself against all or any aspect of the challenge to this Agreement or work performed under this Agreement. However, Lessee may take whatever legal action is available to it to defend this Agreement or any work performed under this Agreement against' any challenge by a third party, whether or not the State chooses to raise a defense against such a challenge.
Records — Upon five ( 5) business days' notice, the State' s records relating to its costs shall be available for the Lessee' s audit in the State' s office in Sacramento. Said audit shall take place only during regular business hours of the State. Payment of costs by the Lessee shall not constitute a waiver of its rights to audit nor an acknowledgment by the Lessee of the validity of the costs that have been paid. Nothing herein shall be deemed to require the State, its consultants, other contractors and subcontractors to maintain books, records, or documents other than those usually maintained by them, provided that such books, records and documents reasonably segregate and identify the costs for which reimbursement is required hereunder. As used herein, State' s records" include any audit of the consultant by the State or its designated representative as authorized in this Agreement.
8. The following Paragraphs in Exhibit 3 do not apply to this Reimbursement Agreement, therefore, Paragraphs 4, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, and 20 of GTC 04/ 2017, Exhibit 3, are hereby waived and shall have no force or effect upon this Agreement.
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e.
Agenda Item H
AGENDA STAFF REPORT
DATE: June 13, 2022
TO: Honorable Mayor and City Council
THRU: Jill R. Ingram, City Manager
FROM: Iris Lee, Acting Director of Public Works
SUBJECT: Ratifying the Declaration of Emergency, Approval of Emergency I-405 Waterline Improvement Relocation and
Dispensing with Public Bidding Requirements and Notice
of Completion, and Authorization to Approve Payment for the Emergency I-405 Improvement Waterline Relocation,
CIP EM2201
________________________________________________________________ SUMMARY OF REQUEST:
That the City Council adopt Resolution 7297:
1. Declaring the I-405 Improvement Water Relocation, CIP EM2201, was necessary for the immediate preservation of life, health and property of the City, and therefore ratifies the declaration by the Public Works Director that the I-405 Improvement Waterline Relocation, CIP EM2201, adjacent to the Beverly Manor Reservoir, was of urgent necessity for the immediate preservation of life, health and property; and,
2. Authorizing the City Manager to execute a purchase order with Valverde Construction, Inc. for the emergency I-405 Improvement Waterline Relocation, CIP EM2201, in the amount of $128,006.42 under an existing on-call agreement with Valverde Construction, Inc. without advertising for bids, in the amount of $128,006.42; and,
3. Accepting the emergency work to the City’s public water system, CIP EM2201, by Valverde Construction, Inc. in the amount of $128,006.42; and,
4. Directing the City Clerk to file a “Notice of Completion” with the Orange County Clerk-Recorder within ten (10) days from the date of acceptance; and,
5. Approving Budget Amendment BA #22-12-01 in the amount of $128,006.42.
BACKGROUND AND ANALYSIS:
The I-405 Improvement Project is an ongoing Orange County Transportation Authority (OCTA) effort to provide one additional general-purpose lane and two toll lanes in each direction between the Orange County limits within the City of Seal Beach and the City of Costa Mesa.
As part of this widening effort, the existing sound walls would be demolished and new sound walls would be installed according to the freeway’s new alignment. One of the new sound walls is located adjacent to the City’s Beverly Manor Reservoir and North Gate Road. The reservoir is filled through a 12-inch water line that runs along the northerly reservoir edge within property owned by the Department of Navy. Due to the new freeway alignment and installation of the sound wall, OC405, the OCTA contractor, notified the City on February 25, 2022 that a portion of this 12-inch waterline needed to be relocated. Because the available records did not show the waterline to be within City right-of-way or property, the City was responsible for carrying out the waterline relocation, subject to the right to seek reimbursement from OCTA.
The I-405 Improvement project schedule reflected the sound wall to begin construction in April 2022. As the City was not notified by OC405 of the need to relocate the waterline until just one month before the freeway improvements were scheduled to take place within that area, it was not possible for the City to utilize the competitive bidding process for completion of the relocation. Failure to promptly relocate the waterline would compromise proper potable and fire flow water uses. As a result, the Director of Public Works declared an emergency on the basis of immediate preservation of life, health, and property of the City. Staff mobilized Valverde Construction, Inc. (Valverde), one of the City’s existing on-call contractors, for this emergency work. The work started on March 24, 2022 and was substantially completed within ten (10) days. The sound wall construction commenced approximately one (1) week later.
Valverde’s total cost to complete this emergency work was $128,006.42, which exceeds the Public Works Department Director’s signing authority limit of $36,514.
Therefore, staff is seeking authorization to issue a purchase order in the amount of $128,006.42 for the work completed based on the emergency declaration as an exception to the competitive bidding process.
ENVIRONMENTAL IMPACT:
This project complies with all requirements of the California Environmental Quality Act (CEQA) and is categorically exempt under Section 15301 Class 1 subsection (b) of the CEQA Guidelines.
LEGAL ANALYSIS:
The City Attorney has approved the agreement and resolution as to form.
FINANCIAL IMPACT:
Budget Amendment BA #22-12-01 will allocate $128,006.42 from the Water Fund.
Description Account
Revised/
Adopted Budget
Proposed
Budget
Budget
Amendment
Water Maintenance
& Operations 501-500-0900-51280 $678,410.75 $806,417.17 $128,006.42 STRATEGIC PLAN:
This item is not applicable to the Strategic Plan.
MEASURE BB:
This item is not applicable to Measure BB, the Seal Beach Neighborhood and Essential Services Protection Measure.
RECOMMENDATION:
That the City Council adopt Resolution 7297:
1. Declaring the I-405 Improvement Water Relocation, CIP EM2201, was necessary for the immediate preservation of life, health and property of the City, and therefore ratifies the declaration by the Public Works Director that the I-405 Improvement Waterline Relocation, CIP EM2201, adjacent to the Beverly Manor Reservoir, was of urgent necessity for the immediate preservation of life, health and property; and,
2. Authorizing the City Manager to execute a purchase order with Valverde Construction, Inc. for the emergency I-405 Improvement Waterline Relocation, CIP EM2201, in the amount of $128,006.42 under an existing on-call agreement with Valverde Construction, Inc. without advertising for bids, in the amount of $128,006.42; and,
3. Accepting the emergency work to the City’s public water system, CIP EM2201, by Valverde Construction, Inc. in the amount of $128,006.42; and,
4. Directing the City Clerk to file a “Notice of Completion” with the Orange County Clerk-Recorder within ten (10) days from the date of acceptance; and,
5. Approving Budget Amendment BA #22-12-01 in the amount of $128,006.42.
SUBMITTED BY: NOTED AND APPROVED:
Iris Lee Jill R. Ingram
Iris Lee,
Acting Director of Public Works
Jill R. Ingram, City Manager
ATTACHMENTS:
A. Resolution 7297
B. Notice of Completion
C. Valverde Construction, Inc. Invoice
RESOLUTION 7297
A RESOLUTION OF THE SEAL BEACH CITY COUNCIL
RATIFYING THE DECLARATION OF AN EMERGENCY AND
DISPENSING WITH PUBLIC BIDDING FOR EMERGENCY
WATERLINE RELOCATION FOR THE I-405 IMPROVEMENT
PROJECT ADJACENT TO THE BEVERLY MANOR RESERVOIR
(CIP EM2201) ON THE BASIS THAT THE WORK WAS OF
URGENT NECESSITY, RATIFYING THE PURCHASE ORDER
WITH VALVERDE CONSTRUCTION, INC., AUTHORIZING THE
CITY MANAGER TO EXECUTE A PURCHASE ORDER,
ACCEPTING COMPLETION OF WORK AND DIRECTING THE
FILING OF A NOTICE OF COMPLETION FOR THE PROJECT,
AND APPROVING BUDGET AMENDMENT BA #22-12-01 TO
ALLOCATE $128,006.42
WHEREAS, the I-405 Improvement Project is widening the 405 Freeway between the Orange County limits and City of Costa Mesa, including a portion of the 405 Freeway within the City of Seal Beach (“City”); and,
WHEREAS, on February 25, 2022 OCTA notified the City that the I-405 Improvement Project impacted an existing 12-inch City water line (“Waterline”) that runs along the northerly edge of the City’s Beverly Manor Reservoir and North Gate Road within the City, because the 405 Freeway widening included demolition of existing sound walls and installation of new sound walls within the area where the Waterline was partially located; and,
WHEREAS, the Director of Public Works determined that as a result of the proposed construction by OCTA, there was an imminent need for the City to relocate the Waterline to prevent impairment of the potable water supply and fire flow water for the City and its residents and businesses, and the Director of Public Works thereupon declared an emergency finding that the relocation of the Waterline was of urgent necessity for the preservation of life, health and property, and that there would not be sufficient time for public bidding in order to carry out the work, and authorized the emergency relocation to be performed by Valverde Construction, Inc. (Valverde); and,
WHEREAS, the City’s Charter Sections 107 and 1010 authorize the City to dispense with public bidding as necessary for the preservation of life, health or property..
THE SEAL BEACH CITY COUNCIL DOES HEREBY RESOLVE, FIND AND DETERMINE AS FOLLOWS:
SECTION 1. Based on the recitals set forth above, the City Council the City Council hereby declares that the I-405 Improvement Waterline Relocation, CIP EM2201, was necessary for the immediate preservation of life, health and property of the City, and the City Council therefore ratifies the declaration by the Director of Public Works that the I-405 Improvement Waterline Relocation, CIP EM 2201, adjacent to the Beverly Manor Reservoir, was of urgent necessity for the immediate preservation of life, health and property.
SECTION 2. The City Council hereby authorizes the City Manager to execute a purchase order contract with Valverde Construction, Inc. for the I405 Improvement Waterline Relocation, CIP EM2201, under an existing on-call agreement, without advertising for bids, in accordance with Valverde invoices dated April 13, 2022, for a total amount not-to-exceed $128,006.42.
SECTION 3. The City accepts the completion of I-405 Improvement Waterline Relocation, CIP EM2201, by Valverde Construction, Inc. in the amount of $128,006.42 for the work performed.
SECTION 4. The City Clerk is hereby directed to file a “Notice of Completion” for the I-405 Improvement Waterline Relocation, CIP EM2201, with the Orange County Clerk-Recorder within ten (10) days of the date of this resolution.
SECTION 5. The City Council hereby approves Budget Amendment #BA 22-12- 01 allocating $128,006.42 to account number 501-500-0900-51280, as follows:
SECTION 6. The City Clerk shall certify to the passage and adoption of this resolution.
Description Account Revised/
Adopted Budget
Proposed
Budget
Budget
Amendment
Water
Maintenance &
Operations
501-500-0900-
51280
$678,410.75 $806,417.17 $128,006.42
PASSED, APPROVED and ADOPTED by the Seal Beach City Council at a regular meeting held on the 13th day of June, 2022 by the following vote:
AYES: Council Members
NOES: Council Members
ABSENT: Council Members
ABSTAIN: Council Members
Joe Kalmick, Mayor
ATTEST:
Dana Engstrom, Acting City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Dana Engstrom, Acting City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution 7297 on file in the office of the City Clerk, passed, approved, and adopted by the Seal Beach City Council at a regular meeting held on the 13th day of June, 2022.
Dana Engstrom, Acting City Clerk
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
CITY OF SEAL BEACH
Attn: City Clerk
211 - 8th Street
Seal Beach, CA 90740
Space of above this line for Recorder’s use.
*** No Recording Fee Pursuant to Government Code Sections 6103 and 27383 ****
NOTICE OF COMPLETION
Notice pursuant to Civil Code Section 9204, must be filed within 15 days after completion.
Notice is hereby given that:
1. The undersigned is owner or corporate officer of the owner of the interest or estate stated below in the property hereinafter described:
2. The full name of the owner is: City of Seal Beach.
3. The address of the owner is: 211 – 8th Street, Seal Beach, CA 90740.
4. The nature of the interest or estate of the owner is: In Fee. The City of Seal Beach.
5. A work of improvement on the property hereinafter is described as substantially completed on April 3, 2022. The work was I-405 Improvement Waterline Relocation, CIP EM2201.
6. The name of the contractor(s), if any, for such improvement was: Valverde Construction, Inc.
The date of the Contract Award was March 24, 2022.
7. The property on which said work of improvement was completed in the City of Seal Beach, County of Orange, State of California, and is described as follows: 3101 North Gate Road, Seal Beach, CA.
Date: _______________
_________________________________________
Steve Myrter, Director of Public Works, P.E,
City of Seal Beach
Signature of owner or corporate officer of owner
named in paragraph 2 or agent.
VERIFICATION
I, the undersigned, say: the Director of Public Works declarant of the foregoing notice of completion; have read said notice of completion and know the contents thereof; the same is true of my own knowledge.
I declare under penalty of perjury the foregoing is true and correct.
Executed on _____________________, 2022, at Seal Beach, California. (Date of Signature)
_________________________________________
Steve Myrter
Director of Public Works, City of Seal Beach
Agenda Item I
AGENDA STAFF REPORT
DATE: June 13, 2022
TO: Honorable Mayor and City Council
THRU: Jill R. Ingram, City Manager
FROM: Joe Bailey, Marine Safety/Lifeguard Chief
SUBJECT: Seal Beach Swim Club Facility License Agreement – McGaugh Pool
________________________________________________________________ SUMMARY OF REQUEST:
The City Council adopt Resolution 7298:
1. Approving the Facility License Agreement with Seal Beach Swim Club for use of McGaugh Pool; and,
2. Authorizing the City Manager to execute the Agreement.
BACKGROUND AND ANALYSIS:
The City of Seal Beach (City) rents pool time at the McGaugh Pool to various community organizations in order to provide robust recreational aquatics activities.
On September 23, 2013, the City Council adopted Resolution 6406 allowing the Seal Beach Swim Club (Swim Club) to use the McGaugh Pool for a flat monthly rate of $550, with a 2% increase each year. The current monthly rate is $644.42.
Although the City’s fee schedule indicated the rate should be set at $55 per hour of use, in 2013 the Swim Club requested that the City Council approve a reduced rate, which the City Council at that time agreed to.
Over the last nine years there has been increased interest from other local swim and water polo clubs to use the McGaugh Pool for their activities. For example, for the past year and a half, Shore Aquatics has been using the pool at the Councilapproved fee rate of $55 per hour. Due to the increased interest from other groups to use the pool, the reduced rate that the Swim Club has been paying with nominal fee adjustments since 2013, and a new aquatics club using the pool as well, staff determined that it would be fiscally prudent to re-evaluate the current License Agreement with the Swim Club.
The new Swim Club rate based upon the current Council-approved Fee Schedule is $1,320 per month. Outside of the fee updates, other changes in the new Facility
License Agreement include; the schedule for use of the pool and the ability to store equipment on the pool deck.
ENVIRONMENTAL IMPACT:
There is no environmental impact related to this item.
LEGAL ANALYSIS:
The City Attorney has reviewed the agreement and approved as to form.
FINANCIAL IMPACT:
The monthly rental for the Seal Beach Swim Club would increase from the reduced rate since 2013 of $550 per month (currently at $644.42 per month including annual 2% increases) to $1,320 per month based upon the Council-approved fee schedule, which will help offset the costs to operate, staff, and maintain the McGaugh pool. The loss in revenue to the City since adoption of Resolution 6406 in 2013 is approximately $70,000.
STRATEGIC PLAN:
This item is not applicable to the Strategic Plan.
MEASURE BB:
This item is not applicable to Measure BB, the Seal Beach Neighborhood and Essential Services Protection Measure.
RECOMMENDATION:
The the City Council adopt Resolution 7298:
1. Approving the Facility License Agreement with Seal Beach Swim Club for use of McGaugh Pool; and,
2. Authorizing the City Manager to execute the Agreement.
SUBMITTED BY: NOTED AND APPROVED:
Joe Bailey Jill R. Ingram
Joe Bailey, Marina Safety Chief Jill R. Ingram, City Manager
ATTACHMENTS:
A. Resolution 7298
B. Facility License Agreement with Shore Aquatics
RESOLUTION 7298
A RESOLUTION OF THE SEAL BEACH CITY COUNCIL
APPROVING A FACILITY LICENSE AGREEMENT WITH THE
SEAL BEACH SWIM CLUB REGARDING USE OF THE
MCGAUGH POOL
THE SEAL BEACH CITY COUNCIL DOES HEREBY RESOLVE:
SECTION 1. The City Council hereby approves that Facility License Agreement dated July 1, 2022 between the City of Seal Beach and the Seal Beach Swim Club regarding the use of the McGaugh pool.
SECTION 2. The City Council hereby authorizes and directs the City Manager to execute the Facility Lease Agreement.
PASSED, APPROVED AND ADOPTED by the Seal Beach City Council at a regular meeting held on the 13th day of June, 2022 by the following vote:
AYES: Council Members
NOES: Council Members
ABSENT: Council Members
ABSTAIN: Council Members
Joe Kalmick, Mayor
ATTEST:
Dana Engstrom, Acting City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Dana Engstrom, Acting City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution 7298 on file in the office of the City Clerk, passed, approved, and adopted by the City Council at a regular meeting held on the 13th day of June, 2022.
Dana Engstrom, Acting City Clerk
1 of 8
FACILITY LICENSE AGREEMENT
between
City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
&
Seal Beach Swim Club
P.O. Box 605
Seal Beach, CA 90740
(562) 430-1092
This Facility License Agreement (“Agreement”) is made as of July 1, 2022 (the “Effective Date”) by and between the City of Seal Beach, a California charter city (“City”), and Seal Beach Swim Club (“Licensee”), a Not for Profit USA Swimming swim team. City and Licensee are referred to herein collectively as the “Parties” and each individually as a “Party.” 2 of 8
RECITALS
1. City operates the pool at McGaugh Elementary School, located at 1698 Bolsa Avenue, Seal Beach (“McGaugh Pool”), pursuant to a joint use agreement with the Los Alamitos Unified School District (“School District”).
2. Licensee wishes to use the McGaugh Pool for recreational purposes.
NOW, THEREFORE, CITY AND LICENSEE AGREE AS FOLLOWS:
AGREEMENT
Section 1. Grant of License
1.1 City grants to Licensee a license to use the McGaugh Pool (hereinafter the “Premises”) subject to the terms and conditions of this Agreement. Licensee shall not use the Premises in any manner contrary to or inconsistent with the terms of this Agreement without City’s prior written consent.
1.2 No Leasehold. No legal title or leasehold interest in the Premises is created or vested in Licensee by the grant of this License.
Section 2. Consideration
2.1 Facility License Fee. Licensee shall pay City a facility license fee of $1320 per month, for use of the Premises in accordance with the Schedule of Use set forth in Exhibit A to this Agreement, which is attached hereto and incorporated by this reference (hereinafter the “Schedule of Use”). Licensee shall pay the facility license fee in advance before the 1st day of the month.
2.2 Licensee shall pay the City’s standard and customary use fees to use the Premises at anytime outside the Schedule of Use.
Section 3. Term and Termination
3.1 The operating term of this Agreement shall begin as of the Effective Date and continue until terminated as provided in this Agreement.
3.2 Either Party may terminate this Agreement without cause by giving 30 days written notice to the other Party.
3.3 City may terminate this Agreement upon 10 days’ notice to Licensee if Licensee fails to provide satisfactory evidence of renewal or replacement of comprehensive general liability insurance as required by this Agreement at least 20 days before the expiration date of the previous policy.
3 of 8
Section 4. Relationship of the Parties
4.1 The only relationship created by this Agreement is of that of licensor and licensee.
Neither City nor any of its officers, employees, or agents shall have control over the means of service or means of production of Licensee or any of its officers or agents, or employees acting within the scope of employment by Licensee. Licensee is solely responsible for all aspects of its programs and operations including, without limitation, its use of the Premises. Licensee shall not, at any time or in any manner, represent that it or any of its officers, agents, or employees are in any manner agents or employees of City acting within the scope of employment by City.
Section 5. Use of Premises
5.1 Schedule of Use. Licensee’s license to use the Premises is limited to the days, times, and portions of the Premises set forth in the Schedule Use. City reserves the right to use, sublease, or license the Premises to third parties, so long as such third party use, sublease, or license does not conflict with Licensee’s use of the Premises according to the Schedule of Use.
Licensee is aware and acknowledges that the Schedule of Use is subject to change to meet the scheduling and maintenance needs of the School District and agrees to indemnify and hold City harmless for any such changes to the Schedule of Use. Licensee may request to use the Premises outside the Schedule of Use, subject to City’s approval.
5.2 Licensee Personnel. All Licensee employees shall be fingerprinted through Lifescan, at the sole expense of Licensee.
5.3 Lifeguards on Duty. Licensee must at all times while it uses the Premises provide one lifeguard on duty when it is using the Premises in accordance with the Schedule of Use.
Every lifeguard provided by Licensee must have a current lifeguard certification from the American Red Cross or have successfully completed USA Swimming’s Safety Training for Swim Coaches. Prior to any person acting as a lifeguard, Licensee must deliver a copy of that person’s certification to the City’s Marine Safety Chief.
5.4 Equipment Storage on the pool deck is allowed with an approved container.
Equipment must be properly stored when not using the premises pursuant to this Agreement.
The Marine Safety Chief will approve containers.
5.5. Cleaning the Premises. Licensee must leave the Premises in a neat and orderly condition after every use, which shall include but not be limited to cleaning the pool deck and picking up and removing all trash.
5.6 No Unlawful Uses. Licensee shall only be permitted to use the Premises for recreational, wellness, and educational opportunities for youth and Licensee shall not use the Premises for any immoral or unlawful purpose.
5.7 Preservation of Insurance. Licensee shall not commit any acts on the Premises, nor use the Premises in any manner that will cause the cancellation of any fire, liability, or other insurance policy insuring the Premises or the improvements on the Premises. 4 of 8
5.8 No Waste or Nuisance. Licensee shall not commit any waste or any public or private nuisance upon the Premises.
5.9 Legal Compliance. Licensee shall not violate any law, rule, or order of any federal, state, or municipal government or agency that may be applicable to use of the Premises.
5.10 Vacating Premises. On or before the effective date of termination of this License, Licensee shall vacate the Premises, remove all of Licensee’s personal property from the Premises, and leave the Premises in good order and repair, subject to the satisfaction of City.
Section 6. Indemnity, Hold Harmless, and Duty to Defend
6.1 Licensee shall defend, indemnify, and hold the City, the School District, and their respective officials, officers, employees, volunteers and agents serving as independent contractors in the role of City or School District officials (collectively “Indemnitees”) free and harmless from any and all claims, demands, causes of action, judgments, penalties, costs, expenses, liabilities, losses, damages, or injuries, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any acts or omissions of Licensee, its officers, agents, contractors, employees, guests, or invitees in connection with the performance of this Agreement or use of the Premises, including without limitation the payment of all consequential damages and attorneys’ fees and other related costs and expenses, except for such loss or damage arising from the sole negligence or willful misconduct of the City or School District. With respect to any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted against Indemnitees, Licensee shall defend Indemnitees with counsel reasonably satisfactory to Indemnitees, at Licensee’s own cost, expense, and risk, and shall pay and satisfy any judgment, award, or decree that may be rendered against Indemnitees. Licensee shall reimburse Indemnitees for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Licensee’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Licensee or Indemnitees. All duties of Licensee under this Section shall survive termination of this Agreement.
Section 7. Insurance
7.1 Licensee shall not commence any use of the Premises until it has provided evidence satisfactory to the City that Licensee has secured all insurance required under this Section. Licensee shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested.
All certificates and endorsements shall be received and approved by the City before use of the Premises commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
7.2. Licensee shall, at its expense, procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the use of the Premises. Insurance is to be placed with insurers 5 of 8
with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the City. Coverage shall be at least as broad as the latest version of the following:
(1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and, if required by the City, (3) Professional Liability. Licensee shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage and if Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Professional Liability: $1,000,000 per claim/aggregate.
7.3. The insurance policies shall contain the following provisions, or Licensee shall provide endorsements on forms supplied or approved by the City to state: (1) coverage shall not be suspended, voided, reduced, or canceled without 30-days prior written notice to City by certified mail, return receipt requested; (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, or officers; (3) coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Licensee’s scheduled underlying coverage and that any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Licensee’s insurance and shall not be called upon to contribute with it; (4) for general liability insurance, that the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the services or operations performed by or on behalf of the Licensee, including materials, parts or equipment furnished in connection with such work; and (5) for automobile liability, that the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Licensee or for which the Licensee is responsible.
7.4. All insurance required by this Section shall contain standard separation of insureds provisions and shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers.
7.5. Any deductibles or self-insured retentions shall be declared to and approved by the City. Licensee guarantees that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Licensee shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.
Section 8. Notices
8.1 All notices and demands that may be required or permitted by this Agreement must be made in writing. All notices and demands must be sent by national overnight delivery 6 of 8
service (e.g., Federal Express) or certified U.S. mail, return receipt requested, to the addresses specified below, or to any other place that the respective party may from time to time designate in a notice to the other.
If to City: City of Seal Beach
211 8th Street
Seal Beach, CA 90740
Attn: City Manager
If to Licensee: Seal Beach Swim Club
P.O Box 605
Seal Beach, CA 90740
Attn: Maria Fattal
8.2 Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
Section 9. Miscellany
9.1 Entire Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the subject matter hereof, and any other purported agreement made shall be ineffective to change, modify, discharge, or effect an abandonment of this Agreement in whole or in part unless such purported agreement is in writing and signed by the party against whom enforcement is sought.
9.2 Applicable Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of California.
9.3 Counterparts. This Agreement may be executed in multiple counterparts each of which shall be deemed an original for all purposes.
9.4 Severability. The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement.
9.5 No Third Party Rights. No third party shall be deemed to have any rights hereunder against either Party as a result of this Agreement.
9.6 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
9.7 Assignment Prohibited. This Agreement is personal to Licensee and shall not be transferred or assigned. Any attempt by Licensee to transfer or assign this Agreement shall result in its automatic termination.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
CITY OF SEAL BEACH
By: _____________________________
Jill R. Ingram, City Manager
ATTEST:
By: ______________________________
Gloria D. Harper, City Clerk
APPROVED AS TO FORM:
BY: ______________________________
Craig A. Steele, City Attorney
SEAL BEACH SWIM CLUB
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
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Exhibit A
Schedule of Use
• Six lap swimming lanes will be reserved for the exclusive use of the Seal Beach Swim Club, Monday through Thursday of every week, from 4:00 pm to 5:30 pm. • Use of the pool by the Seal Beach Swim Club at any other time is not included in this Schedule of Use and will require separate advance approval by City and payment of additional fees.
Agenda Item J
AGENDA STAFF REPORT
DATE: June 13, 2022
TO: Honorable Mayor and City Council
THRU: Jill R. Ingram, City Manager
FROM: Joe Bailey, Marine Safety/Lifeguard Chief
SUBJECT: Shore Aquatics Club Facility License Agreement - McGaugh Pool
________________________________________________________________ SUMMARY OF REQUEST:
That the City Council approve Resolution 7299:
1. Authorizing the Facility License Agreement with Shore Aquatics Club for use of the McGaugh Pool; and,
2. Authorizing the City Manager to execute the Agreement.
BACKGROUND AND ANALYSIS:
The City of Seal Beach (City) rents pool time at the McGaugh Pool to various community organizations in order to provide robust recreational aquatics activities.
Over the last year and a half, Shore Aquatics Club has been renting pool time at McGaugh pool for their club activities, for approximately 10 months out of the year, which includes competitive water polo and swimming. Shore Aquatics has been paying $55 per hour as per the City’s adopted fee schedule.
Staff has negotiated a Facility License Agreement with Shore Aquatics Club to establish the terms and conditions under which Shore Aquatics Club can continue to use the pool at the rate established by the City Council. This flat, monthly rate takes into account the six (6) weeks that the City’s Junior Lifeguard program utilizes the pool during Shore Aquatics Club’s normally scheduled hours in March and April each year.
ENVIRONMENTAL IMPACT:
There is no environmental impact related to this item.
LEGAL ANALYSIS:
The City Attorney has reviewed the agreement and approved as to form.
FINANCIAL IMPACT:
The City will receive $1,620 in revenue from Shore Aquatics per month for renting the McGaugh pool, which will help offset the costs to operate, staff, and maintain the McGaugh pool.
STRATEGIC PLAN:
This item is not applicable to the Strategic Plan.
MEASURE BB:
This item is not applicable to Measure BB, the Seal Beach Neighborhood and Essential Services Protection Measure.
RECOMMENDATION:
That the City Council approve Resolution 7299:
1. Authorizing the Facility License Agreement with Shore Aquatics Club for use of the McGaugh Pool; and,
2. Authorizing the City Manager to execute the Agreement.
SUBMITTED BY: NOTED AND APPROVED:
Joe Bailey Jill R. Ingram
Joe Bailey, Marine Safety Chief Jill R. Ingram, City Manager ATTACHMENTS:
A. Resolution 7299
B. Facility License Agreement with Shore Aquatics Club
RESOLUTION 7299
A RESOLUTION OF THE SEAL BEACH CITY COUNCIL
APPROVING A FACILITY LICENSE AGREEMENT WITH THE
SHORE AQUATICS CLUB REGARDING USE OF THE MCGAUGH
POOL
THE SEAL BEACH CITY COUNCIL DOES HEREBY RESOLVE:
SECTION 1. The City Council hereby approves that Facility License Agreement dated July 1, 2022 between the City of Seal Beach and the Shore Aquatics Club regarding the use of the McGaugh pool.
SECTION 2. The City Council hereby authorizes and directs the City Manager to execute the Facility Lease Agreement.
PASSED, APPROVED AND ADOPTED by the Seal Beach City Council at a regular meeting held on the 13th day of June, 2022 by the following vote:
AYES: Council Members
NOES: Council Members
ABSENT: Council Members
ABSTAIN: Council Members
Joe Kalmick, Mayor
ATTEST:
Dana Engstrom, Acting City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Dana Engstrom, Acting City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution 7298 on file in the office of the City Clerk, passed, approved, and adopted by the City Council at a regular meeting held on the 13th day of June, 2022.
Dana Engstrom, Acting City Clerk
Agenda Item K
AGENDA STAFF REPORT
DATE: June 13, 2022
TO: Honorable Mayor and City Council
THRU: Jill R. Ingram, City Manager
FROM: Joe Bailey, Marine Safety/Lifeguard Chief
SUBJECT: Service Agreement with Brevvie to Install Remote Accessible Beach Lockers Next to Lifeguard Headquarters ________________________________________________________________ SUMMARY OF REQUEST:
That the City Council adopt Resolution 7300:
1. Approving the Services Agreement with Brevvie LLC to place a "smart locker" next to Lifeguard Headquarters; and,
2. Authorizing the City Manager to execute the Agreement.
BACKGROUND AND ANALYSIS:
Brevvie LLC (“Brevvie”) provided a proposal to staff to place a "smart rental locker" next to Lifeguard Headquarters. These smart lockers allow users to rent beach equipment such as body boards, surf boards, umbrellas, chairs, beach games, and coolers. The system is set up to be fully automated and will be serviced by Brevvie.
If approved, staff will establish a pilot program that will permit staff to evaluate the smart lockers and any revenue associated with this business. Under the proposal, the City will receive 24% of rental fees, which will be deposited in the Tidelands Fund.
Brevvie provided a presentation to staff, detailing how smart lockers work in a variety of locations including a venture in the City of Huntington Beach. The lockers were originally created for use in large apartment complexes and Brevvie is now looking for other suitable locations. The City does not currently offer beach equipment rentals. It is the opinion of staff that the Brevvie system would be appropriate for the proposed Seal Beach location since it does not require City staff to manage the equipment, does not create liability issues for the City, and would provide a service option to residents and visitors. Staff has performed extensive research but has not found any comparable products that can provide this type of service. In addition, Brevvie has intellectual patents pending on their equipment, making them appropriate for "sole source" status.
If the pilot program is successful, and prior to making any long-term agreement, staff will provide further review of the marketplace to determine whether there are other companies that provide a similar service, and if so, how they compare to Brevvie.
It is staff’s recommendation that this pilot program would be an added benefit to those visiting our beach, provide a new revenue source, and have the potential to reduce waste as all items will be reusable and rented multiple times.
ENVIRONMENTAL IMPACT:
There is no environmental impact related to this item.
LEGAL ANALYSIS:
The City Attorney has reviewed the agreement and approved as to form.
FINANCIAL IMPACT:
This agreement is expected to have a positive financial impact with 24% of the rental fees coming to the City and with no start-up or operational costs. The City would only allow for the use of unused City property near the Lifeguard Headquarters.
STRATEGIC PLAN:
This item is not applicable to the Strategic Plan.
MEASURE BB:
This item is not applicable to Measure BB, the Seal Beach Neighborhood and Essential Services Protection Measure.
RECOMMENDATION:
That the City Council adopt Resolution 7300:
1. Approving the Services Agreement with Brevvie LLC to place a "smart locker" next to Lifeguard Headquarters; and,
2. Authorizing the City Manager to execute the Agreement.
SUBMITTED BY: NOTED AND APPROVED:
Joe Bailey Jill R. Ingram
Joe Bailey, Marine
Safety/Lifeguard Chief
Jill R. Ingram, City Manager
ATTACHMENTS:
A. Resolution 7300
B. Brevvie Proposal
RESOLUTION 7300
A RESOLUTION OF THE SEAL BEACH CITY COUNCIL
APPROVING A SERVICE AGREEMENT WITH BREVVIE LLC. TO
INSTALL REMOTE ACCESSABLE BEACH LOCKERS NEXT TO
LIFEGUARD HEADQUARTRS
THE SEAL BEACH CITY COUNCIL DOES HEREBY RESOLVE:
SECTION 1. The City Council hereby approves that Facility Service Agreement dated June 14, 2022 between the City of Seal Beach and Brevvie LLC to install remote accessible beach lockers next to Lifeguard Headquarters.
SECTION 2. The City Council hereby authorizes and directs the City Manager to execute the Service Agreement.
PASSED, APPROVED AND ADOPTED by the Seal Beach City Council at a regular meeting held on the 13th day of June, 2022 by the following vote:
AYES: Council Members
NOES: Council Members
ABSENT: Council Members
ABSTAIN: Council Members
Joe Kalmick, Mayor
ATTEST:
Dana Engstrom, Acting City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Dana Engstrom, Acting City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution 7300 on file in the office of the City Clerk, passed, approved, and adopted by the City Council at a regular meeting held on the 13th day of June, 2022.
Dana Engstrom, Acting City Clerk
1. SERVICE AGREEMENT
THIS SERVICE AGREEMENT (the “Agreement”) is made and entered into as of May 15, 2022 (“Effective Date”) by and between Brevvie LLC, a Delaware limited liability company with offices located at 19552 Summer Breeze Lane, Huntington Beach, CA 92648 (“Brevvie”) and The City of Seal Beach, with offices located at 211 8th Street, Seal Beach, CA 90740 (“Customer”).
1. DEFINITIONS.
“Application” means the Brevvie web and mobile application(s), which enable Authorized Users to reserve, lock and unlock Lockers located at the Authorized Facility(ies), including all Documentation and Updates thereto.
“Authorized Users” means individuals who are customers of the Authorized Facility or who are otherwise authorized to access the Authorized Facility in order to use the Brevvie System and who have agreed to Brevvie’s terms of use agreement.
“Brevvie System” means the Brevvie smart locker system, comprising the Lockers, Application, and Documentation, and any Updates to any of the foregoing, which are designed to allow Authorized Users to access the Lockers to rent household consumer goods and electronics (“Rental Products”) in hourly and daily increments or on a subscription basis.
“Documentation” means all available documentation (electronic or otherwise) related to the Application and/or Lockers as provided by Brevvie to Customer, including, but not limited to user manuals, instruction booklets, on-line documentation and on-line help menus. “Lockers” means the lockers installed with smart locks that are designed to interoperate with the Application, together with any replacement parts, additions, substitutions, repairs or accessories now or hereafter incorporated into such system(s).
“Revenues” means the Rental Fees received by Brevvie from Authorized Users of the Brevvie System in connection with the rental of Products from Lockers at the Authorized Facility. “Rental Fees” shall mean the fees charged to an Authorized User by Brevvie in connection with the rental of one (1) or more Rental Products from Lockers installed at the Authorized Facility, subject to the pricing ranges set forth on Exhibit A.
“Updates” shall mean any upgrades, enhancements, modifications, or later releases of the Brevvie System, or any part thereof, made available to Customer by Brevvie.
2. LOCKERS. Subject to the terms and conditions of this Agreement, Brevvie agrees to install Lockers at the premise(s) identified on Exhibit A, as may be amended by the parties, owned, operated, and/or managed by Customer (each, an Authorized Facility, and together, the Authorized Facilities”), in those locations agreed to by the parties. Brevvie may replace any Locker with another Locker of similar type, quality, and appearance, at any time during the Term.
Customer agrees to use the Lockers solely to operate the Brevvie System. Customer will not remove or relocate the Lockers (or any component thereof) from the Authorized Facility (or specific location) in which it was initially installed. Customer will not allow any Authorized User to use a Locker without reserving the Locker through the Application. (a) BREVVIE SYSTEM RESTRICTIONS. Customer hereby agrees to take all reasonable steps to protect Brevvie’s and its suppliers’ proprietary rights in the Brevvie System. Customer shall not attempt to, or allow any Authorized User or other third party to, reverse engineer, decompile, disassemble or similarly manipulate all or any portion of the Brevvie System, including
2. the Lockers for any purpose. Further, Customer shall not access or use the Brevvie System, or any part thereof, to develop a similar or competitive product or service. (b) INTENTIONALLY OMITTED
(c) EXCLUSIVITY. Customer agrees that during the Term, Customer shall not allow any third-party smart locker provider or vending provider, including any party that sells, rents, or offers to sell or rent, any products included in the Rental Products or any other party that competes with Brevvie or its Rental Products, to operate at the Authorized Facility.
3. INTELLECTUAL PROPERTY RIGHTS. The Brevvie System, including the Lockers and Application, will remain the property of Brevvie and Customer will have no right, title or interest therein except as delineated in this Agreement.
4. DELIVERY AND ACCEPTANCE. The Lockers will be delivered (with transportation, delivery, installation and insurance at Brevvie’s expense) to the Authorized Facility(ies) specified by Customer within approximately sixty (60) days of the Effective Date of this Agreement. So long as Customer has not notified Brevvie that the Lockers are defective as of the date the Lockers are installed (“Installation Date”), Customer will be deemed to have accepted the Lockers. All terms and conditions of this Agreement will be in full force and effect with respect to Lockers delivered to Customer from the Installation Date. Brevvie will have no liability whatsoever for any failure of or delay in delivery or installation of any Lockers.
5. MAINTENANCE OF THE BREVVIE SYSTEM.
(a) Protection and Maintenance of Lockers. Customer will keep all Lockers free and clear from all liens, including any direct or indirect charge, encumbrance, lien, security interest, legal process or claim against the Lockers, and will not interfere with or otherwise interrupt the operation by Brevvie of the Brevvie System. Brevvie shall regularly inspect, service, clean and maintain the Lockers and shall maintain the Brevvie System in good working order substantially in accordance with the Documentation and in accordance with federal, state, and local laws applicable to Brevvie’s provision of the Brevvie System to Customer. All replacement parts and repairs at any time made to or placed upon the Lockers will become the property of Brevvie. No other parts which are not readily removable will be affixed to the Lockers. Customer will provide, at its expense, a proper environment and proper utilities and internet for the Brevvie system to operate and shall operate the Authorized Facility in accordance with applicable federal, state, and local laws. (b) Risk of Loss And Damage. Customer assumes and will bear the risk of casualty or damage to the Lockers from any cause relating to the condition of the Authorized Facility from the Installation Date until its return to Brevvie. No casualty or damage will relieve Customer from the obligation to comply with any other obligation under this Agreement. In the event of a casualty or damage, Customer will immediately notify Brevvie thereof, and Customer will be responsible for all costs incurred by Brevvie in connection with the repair, replacement and/or removal of the affected Locker(s). Customer will pay to Brevvie all such costs within thirty (30) days of invoice date, which invoice will only be issued following the repair, replacement and/or removal of the affected Locker(s).
(c) Insurance. Customer, at its sole cost and expense, will maintain all-risk insurance against loss or damage to the Lockers, caused by the gross negligence or willful misconduct of Customer or it’s agents, or damaged caused from physical building or structure failure of the authorized facility, for the full replacement value of the Lockers, and such insurance will specify Brevvie as loss payee. In addition, Brevvie, at its sole cost and expense, will maintain general liability insurance on the Lockers insuring Brevvie and Customer against any and all loss or liability for all damages, either to persons or property or otherwise, which might result from or happen in connection with the condition, use or operation of the Lockers, with such limits as Brevvie may
3. reasonably require but in no event less than $500,000 per occurrence or $1 million in the aggregate.
(d) Customer’s Covenants And Representations. Customer represents, warrants and covenants to Brevvie, that the Lockers, and the Rental Products therein, are and will at all times remain the tangible personal property of Brevvie and, when subjected to use by Customer, will not be or become fixtures or real property under applicable laws.
6. PAYMENTS.
(a) Intentionally Omitted
(b) RENTABLE ITEMS - Brevvie agrees to pay Customer twenty-four percent (24%) of Revenues during the Term (“Customer Share”), net sales tax and transaction fees. The Customer Share will be paid on a monthly basis, within fifteen (15) days of the end of the immediately preceding month, and will be accompanied by a usage report reflecting details relating to the number of Authorized Users using the Brevvie System at the Authorized Facility. Customer will be liable for all taxes, charges, state charges, and withholdings of any nature related to the Customer Share, together with penalties, fines and interest thereon, but not for any tax based solely on the net income of Brevvie.
7. TREATMENT OF CONFIDENTIAL INFORMATION.
(a) Definition. “Confidential Information” includes, without limitation, (i) all information communicated by Disclosing Party that should reasonably be considered confidential under the circumstances, whether it was or was not identified as confidential at the time of disclosure; (ii) all information identified as confidential to which Receiving Party has access in connection with the subject matter of this Agreement, whether before or after the Effective Date; (iii) this Agreement; (iv) any trade secret; (v) any existing or contemplated product, service, design, technology, software, process, technical data, engineering, technique, research, development, invention, methodology and concept and any related information; (vi) information relating to any business plan, sale or marketing method, marketing, merchandising, pricing, analysis and report, customer information, PII, or customer or supplier list or requirement; and (vii) financial and accounting information.
(b) Confidentiality Obligations. Both Parties acknowledge that either Party may receive (“Receiving Party”) Confidential Information from the other Party (“Disclosing Party”) during the Term of this Agreement, and all Confidential Information is deemed to have been received in confidence. Receiving Party may use Disclosing Party’s Confidential Information only to perform its obligations or exercise its rights under this Agreement and may disclose Disclosing Party’s Confidential Information only to Receiving Party’s employees, agents or contractors that need to know the information pursuant to this Agreement and who are required (by written agreement, written and enforceable internal policy, or legally enforceable code of professional responsibility) to maintain the confidentiality of the Confidential Information as required by this Agreement. Receiving Party must protect the Confidential Information at least as well as it does its own valuable and sensitive information of a similar nature and, in any event, with no less than a reasonable degree of care. Following termination or expiration of this Agreement, and/or if requested by Disclosing Party, Receiving Party must return or destroy all Confidential Information and, upon request, certify in writing as to having returned or destroyed all Confidential Information.
The obligation of confidentiality continues for three (3) years from the expiration or termination of this Agreement; provided, however, Receiving Party must keep (i) any Personally Identifiable Information (“PII”) confidential indefinitely; and (ii) any trade secrets of Disclosing Party confidential as long as the information remains a trade secret.
(c) Exceptions. The obligations of either Party under this Section 7 do not apply to information that Receiving Party can demonstrate (i) was in its possession at the time of disclosure
4. without confidentiality restrictions; (ii) at the time of disclosure by Disclosing Party is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by Receiving Party; provided, however, PII remains subject to confidentiality obligations regardless of its availability to the public or availability through unauthorized disclosure; (iii) was received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by Receiving Party; or (iv) is independently developed by Receiving Party without reference to the Confidential Information of the other Party. (d) Disclosure by Law. In the event Receiving Party is required by law, regulation, stock exchange requirement or legal process to disclose any of Disclosing Party’s Confidential Information, Receiving Party must (i) give Disclosing Party, to the extent possible, reasonable advance notice prior to disclosure so Disclosing Party may contest the disclosure or seek a protective order, and (ii) reasonably limit the disclosure to the minimum amount legally required to be disclosed.
8. TERM AND TERMINATION.
(a) Term. The term of the Agreement will commence upon the Effective Date, and if not sooner terminated in accordance with this Agreement, will continue for three hundred sixty-five (365) days from the Installation Date (“Initial Term”). Thereafter, the term will automatically extend for additional thirty (30) day periods unless and until either party provides notice to the other party within thirty (30) days of the end of the then-current term of its intent not to renew this Agreement.
The Initial Period and any extension periods are collectively referred to herein as the “Term”. (b) Termination. Either party may terminate this Agreement for material breach by the other party, which remains uncured for a period of thirty (30) days following receipt of notice of such material breach. Further, this Agreement may be terminated by either party, immediately upon written notice to the other party (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of such other party’s debts, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business. This Agreement shall automatically terminate upon the full execution by the Parties of a License Agreement. (c) Effects of Termination. Upon any termination of this Agreement, Customer shall immediately cease using the Brevvie System and authorizing Authorized Users to use the Brevvie System. Brevvie at its sole cost and expense, will cause the lockers to be removed from the Authorized Facility(ies). Customer will not be relieved of any of its duties, obligations, covenants or agreements under this Agreement prior to the return of the Lockers. (d) Survival. Following termination of the Agreement, the following Sections will survive: 3 (Intellectual Property Rights), 7 (Treatment of Confidential Information), 8(c) (Effects of Termination), 10 (Indemnification), 10 (Indemnification), 11 (Limitation of Liability), and 12 (General).
9. WARRANTY AND DISCLAIMER.
(a) Warranties. Brevvie agrees that, during the Term, the Brevvie System will operate substantially in accordance with the Documentation, subject to Customer’s compliance with its obligations under Section 5(a).
(b) Disclaimer Of Warranties. EXCEPT AS SET FORTH ABOVE IN SECTION 9(a),
BREVVIE HAS NOT MADE AND DOES NOT NOW MAKE TO CUSTOMER ANY
REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY,
WITH RESPECT TO THE DESIGN, OPERATION, PERFORMANCE OR CONDITION OF THE
BREVVIE SYSTEM OR ANY COMPONENT THEREOF, INCLUDING THE LOCKERS,
5. APPLICATION, OR THE SUPPORT SERVICES, INCLUDING WITHOUT LIMITATION ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE OR THE LIKE.
10. INDEMNIFICATION. Customer hereby assumes liability for, and agrees to indemnify, defend, and hold Brevvie, and its agents, representatives, assigns, and successors, harmless against, any and all liabilities, losses, damages, claims and expenses (including reasonable attorneys’ fees) in any way relating to or arising out of the use of the Lockers at the Authorized Facility that was not caused by Brevvie’s gross negligence or willful misconduct or failure to comply with its warranty obligation under Section 9(a). The indemnification obligations contained herein will survive the expiration of the term of this Agreement.
11. LIMITATION OF LIABILITY. BREVVIE WILL HAVE NO LIABILITY TO CUSTOMER OR ANY
THIRD PARTIES FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL
DAMAGES OF ANY KIND OR NATURE (INCLUDING WITHOUT LIMITATION LOST PROFITS)
ARISING OUT OF THIS AGREEMENT, THE HARDWARE OR ANY COMPONENT THEREOF,
ANY SOFTWARE RUN ON THE HARDWARE, OR THE SUPPORT SERVICES, EVEN IF
BREVVIE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES BASED ON STRICT LIABILITY, TORT OR WARRANTY.
THE MAXIMUM, AGGREGATE LIABILITY OF BREVVIE TO CUSTOMER UNDER THIS
AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNTS PAID TO CUSTOMER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.
12. GENERAL.
(a) Intentionally Omitted
(b) Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of California without regard to choice of law rules. Customer irrevocably consents to the jurisdiction of any state or federal court located in Los Angeles, California.
(c) Notices. Except as otherwise expressly specified herein, all notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, e-mail, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. Notices shall be sent to the signatory of this Agreement at the address set forth at the beginning of this Agreement or such other address as either party may specify in writing.
(d) No Agency. Nothing contained herein shall be construed as creating any agency, partnership or other form of joint enterprise between the parties. (e) Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, government action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.
(f) Severability. In the event that any provision of this Agreement is found by a court or other body of competent jurisdiction to be unenforceable or invalid under any applicable law such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the
6. objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
(g) Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section, or in any way affect this Agreement.
(h) Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
(i) Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
(j) Entire Agreement. This Agreement and the Exhibits hereto constitute the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, any prior or collateral agreements with respect to the subject matter hereof. This Agreement may only be changed by mutual, written agreement of authorized representatives of the parties.
IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed and delivered this Agreement effective as of the Effective Date.
BREVVIE LLC CUSTOMER
By: By:
Name: Name:
Title: Title:
Address: Address:
APPROVED AS TO FORM
By:
Name: Craig A. Steele
Title: City Attorney for the City of Seal Beach
Address: 350 S. Grand Avenue, 37th Floor
Los Angeles, CA 90071
Kristine Everly
Co-Founder
19552 Sea Breeze Lane
Huntington Beach, CA 92647
7. EXHIBIT A
Authorized Facility Number of
Lockers
Pricing Restrictions
Base of Seal Beach pier located off
Main St.
1 bank of
outdoor lockers
NA
Agenda Item L
AGENDA STAFF REPORT
DATE: June 13, 2022
TO: Honorable Mayor and City Council
THRU: Jill R. Ingram, City Manager
FROM: Alexa Smittle, Director of Community Development
SUBJECT: Southern California Edison License Agreement: Seal Beach Bicycle Path and Edison Park
________________________________________________________________ SUMMARY OF REQUEST:
That the City Council adopt Resolution 7301:
1. Authorizing the City Manager to execute a license agreement with Southern California Edison (SCE) for the use of the Seal Beach Bicycle Path between North Gate Road and the San Gabriel River Trail; and,
2. Authorizing the City Manager to execute a license agreement with Southern California Edison (SCE) for the use of Edison Park located on College Park Drive.
BACKGROUND AND ANALYSIS:
During the 1970s the City of Seal Beach obtained a license agreement from SCE for:
The construction of a bike trail, which connects North Gate Road at Leisure World to the regional bike trail along the San Gabriel River. This bike trail provides a recreational link to the San Gabriel River Trail, which in turn provides access to the beach and inland communities; and, The use of Edison Park, located in College Park West on College Park Drive, as a recreation area for residents. The park consists of a softball field, community garden, playground, basketball/pickleball court and picnic tables.
The agreements have been updated periodically by SCE and were most recently approved by the City in July 2017. The new agreements have annual cost escalators of 3% annually and would commence on July 1, 2022 and expire on June 30, 2027. Staff has determined these escalators to be acceptable based on the use of the services each facility offers the community.
ENVIRONMENTAL IMPACT:
There is no environmental impact related to this item.
LEGAL ANALYSIS:
The City Attorney has reviewed and approved as to form.
FINANCIAL IMPACT:
All costs associated with both licenses are included in the current budget. Future costs will be budgeted to include the 3% escalator identified in each license.
STRATEGIC PLAN:
This item is not applicable to the Strategic Plan.
MEASURE BB:
This item is not applicable to Measure BB, the Seal Beach Neighborhood and Essential Services Protection Measure.
RECOMMENDATION:
That the City Council adopt Resolution 7301:
1. Authorizing the City Manager to execute a license agreement with Southern California Edison (SCE) for the use of the Seal Beach Bicycle Path between North Gate Road and the San Gabriel River Trail; and,
2. Authorizing the City Manager to execute a license agreement with Southern California Edison (SCE) for use of Edison Park located on College Park Drive.
SUBMITTED BY: NOTED AND APPROVED:
Alexa Smittle Jill R. Ingram
Alexa Smittle, Director of
Community Development
Jill R. Ingram, City Manager
Prepared by: Tim Kelsey, Recreation Manager
ATTACHMENTS:
A. Resolution 7301
B. License Agreement – Edison Park
C. License Agreement – Bike Path
RESOLUTION 7301
A RESOLUTION OF THE SEAL BEACH CITY COUNCIL
AUTHORIZING THE CITY MANAGER TO EXECUTE TWO
LICENSE AGREEMENT WITH SOUTHERN CALIFORNIA EDISON
FOR THE USE THE BIKE PATH OFF NORTH GATE ROAD AND
EDISON PARK
WHEREAS, Edison park is public park that offers recreation to the entire community consisting of community gardens, a playground, a basketball court, a sand volleyball court, softball field and picnic area; and, WHEREAS, the bike path between North Gate Road and the San Gabriel River Trail is a vital connection used to offer recreational opportunities to the public.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SEAL BEACH DOES HEREBY RESOLVE:
SECTION 1. The City Council hereby authorizes and directs the City Manager to execute the License Agreement for the on behalf of the City for the use of Edison Park.
SECTION 2. The City Council hereby authorizes and directs the City Manager to execute the License Agreement for the on behalf of the City for the use of the bike path between North Gate Road and the San Gabriel River Trail.
PASSED, APPROVED AND ADOPTED by the Seal Beach City Council at a regular meeting held on the 13th day of June, 2022 by the following vote:
AYES: Council Members
NOES: Council Members
ABSENT: Council Members
ABSTAIN: Council Members
Joe Kalmick, Mayor
ATTEST:
_
Dana Engstrom, Acting City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Dana Engstrom, Acting City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution 7301 on file in the office of the City Clerk, passed, approved, and adopted by the City Council at a regular meeting held on the 13th day of June, 2022.
__
Dana Engstrom, Acting City Clerk
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CITY OF SEAL BEACH
L I C E N S E A G R E E M E N T
I N D E X O F A R T I C L E S
1. USE
2. TERM
3. CONSIDERATION
4. INSURANCE
5. LICENSOR’S USE OF THE PROPERTY
6. LICENSEE’S IMPROVEMENTS
7. LICENSEE'S PERSONAL PROPERTY
8. HEIGHT LIMITATIONS AND VERTICAL CLEARANCES
9. ACCESS AND CLEARANCES
10. PARKING
11. WEEDS, BRUSH, RUBBISH AND DEBRIS (WEED ABATEMENT)
12. FLAMMABLES, WASTE AND NUISANCES
13. PESTICIDES AND HERBICIDES
14. HAZARDOUS WASTE
15. SIGNS
16. FENCING AND EXISTING FIXTURES
17. PARKWAYS AND LANDSCAPING
18. IRRIGATION EQUIPMENT
19. UNDERGROUND TANKS
20. UNDERGROUND FACILITIES
21. UTILITIES
22. TAXES, ASSESSMENTS AND LIENS
23. EXPENSE
24. ASSIGNMENTS
25. COMPLIANCE WITH LAW
26. GOVERNING LAW
27. INDEMNIFICATION
28. TERMINATION
29. EVENTS OF DEFAULT
30. REMEDIES
31. LICENSEE’S PERSONAL PROPERTY UPON TERMINATION OR EXPIRATION
32. LIMITATION OF LIABILITY
33. NON-POSSESSORY INTEREST
34. WAIVER
35. AUTHORITY
36. ELECTRIC AND MAGNETIC FIELDS
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37. INDUCED VOLTAGES
38. NOTICES
39. RECORDING
40. COMPLETE AGREEMENT
41. SIGNATURE AUTHORITY
42. SURVIVAL
APPENDIX: GUIDELINES FOR STANDARD LICENSEE IMPROVEMENTS
ADDENDUM(S)
PARKING
PARK USE
TREES/LANDSCAPING
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LICENSE AGREEMENT
THIS AGREEMENT between SOUTHERN CALIFORNIA EDISON COMPANY, a corporation organized under the laws of the State of California, called "Licensor", and CITY OF SEAL BEACH, called "Licensee";
WITNESSETH: That Licensor, for and in consideration of the faithful performance by Licensee of the terms, covenants and agreements hereinafter set forth to be kept and performed by Licensee, does hereby give to Licensee the license to use that certain real property solely for the purpose hereinafter specified, upon and subject to the terms, reservations, covenants and conditions hereinafter set forth, hereinafter designated as "Property” on the Exhibit "A" attached hereto and made a part hereof, being a portion of Assessor’s Parcel Number 086-011-51, situated in the City of Seal Beach, County of Orange, State of California, subject to any and all covenants, restrictions, reservations, exceptions, rights and easements, whether or not of record.
Acknowledgment of License and Disclaimer of Tenancy
Licensee acknowledges and agrees that the License constitutes a limited, revocable, non-possessory, personal and non-assignable privilege to use the Property solely for those permitted uses and activities expressly identified in the Agreement (the “License Privilege”). Licensee further acknowledges and agrees that:
● The consideration paid by Licensee pursuant to Article 3 of the Agreement is consistent with the value of the rights comprising the License Privilege; the consideration is not consistent with the higher market value for a greater right, privilege or interest (such as a lease) in the Property or similarly situated parcels. ● Licensee is not a tenant or lessee of Licensor and holds no rights of tenancy or leasehold in relation to the Property.
● The Agreement and/or any prior and/or future acts or omissions of Licensor shall not create (or be construed as creating) a leasehold, tenancy or any other interest in the Property.
● Licensor may terminate the License and revoke the License Privilege at any time, subject, if applicable, to a notice period agreed upon by the parties, as more particularly set forth in the Agreement.
● In consideration of Licensor’s grant of the License, Licensee specifically and expressly waives, releases and relinquishes any and all right(s) to assert any claim of right, privilege or interest in the Property other than the License. ● Licensee further acknowledges and agrees that without the representations and agreements set forth herein, Licensor would not enter into the Agreement.
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1. Use: Licensee will use the Property for park and public recreation purposes only.
Licensor makes no representation, covenant, warranty or promise that the Property, and any fixtures thereon, are fit or suitable for any particular use, including the use for which this Agreement is made and Licensee is not relying on any such representation, covenant, warranty or promise. Licensee’s use of the property for any other purpose and/or failure to utilize the Property in accordance with this License as determined by the Licensor in its sole discretion will be deemed a material default and grounds for immediate termination of this Agreement in accordance with Articles 28 and/or 30.
2. Term: Unless otherwise terminated as provided herein, this Agreement will be in effect for a term of five (5) years commencing on the first day of September, 2022 and ending on the last day of August, 2027. Licensee acknowledges that this Agreement does not entitle Licensee to any subsequent agreement, for any reason whatsoever, regardless of the use Licensee makes of the Property, the improvements Licensee places on or makes to the Property, or for any other reason.
3. Consideration: Licensee will pay to Licensor the sum of Two Thousand Three Hundred Eighty Eight and 11/100 Dollars ($2,388.11) upon the execution and delivery of this Agreement with subsequent annual payments. Payment to Licensor must be in the form of a check or money order payable to Southern California Edison Company. No cash payments will be accepted by Licensor.
Payment schedule:
Year Term Yearly
Amount
Payment Due
First Day Of
First Year 2022 $2,388.11 September
Second Year 2023 $2,459.75 September
Third Year 2024 $2,533.54 September
Fourth Year 2025 $2,609.55 September
Fifth Year 2026 $2,687.83 September
All accounts not paid within 30 days of the agreed upon due date will be charged a late fee equal to ten percent (10%) of the full amount that was due on said date. To the extent a payment is not made within sixty (60) days, Licensor may increase the late fee to twenty percent (20%) of the full amount due.
Licensor shall further be entitled to any other costs associated with collection of the unpaid amounts.
All payments subsequent to the initial payment will be paid to the Southern California Edison Company, Post Office Box 800 Rosemead, California, 91770, and Attention: Corporate Accounting Department – Accounts Receivable.
4. Insurance: During the term of this Agreement, Licensee shall maintain the following insurance:
(a) Workers’ Compensation with statutory limits, under the laws of the State of California and Employer’s Liability with limits of not less than $1,000,000.00 each accident, disease/each employee, and disease/policy limit. Licensee shall require its insurer to waive all rights of subrogation against Licensor, its officers, agents and employees, except for any liability resulting from the willful or grossly negligent acts of the Licensor.
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(b) Commercial General Liability Insurance, including contractual liability and products liability, with limits not less than $2,000,000.00 per occurrence and $2,000,000.00 in the aggregate. Such insurance shall: (i) name Licensor, its officers, agents and employees as additional insureds, but only for Licensee’s negligent acts or omissions; (ii) be primary for all purposes and (iii) contain separation of insureds or cross-liability clause, and (iv) require its insurer to waive all rights of subrogation against Licensor, its officers, agents and employees, except for any liability resulting from the willful or grossly negligent acts of the Licensor.
(c) Commercial Automobile Liability insurance with a combined single limit of $1,000,000.00. Such insurance shall cover the use of owned, non-owned and hired vehicles on the Property.
(d) Self - Insurance: Licensee may self-insure all of the insurance requirements above if they belong to an approved Secondary Use Category and the self-insurance is maintained under a self-insurance program reasonably satisfactory to Licensor. Park and public recreation use is an approved Secondary Use Category; Licensee may submit written verification of self-insurance to meet the above insurance requirements.
The failure to maintain such insurance may be deemed by Licensor a material default of this Agreement and grounds for immediate termination pursuant to Articles 28 and/or 30. Licensee shall provide Licensor with proof of such insurance by submission of certificates of insurance, pursuant to Article 38 “Notices”, at least ten days prior to the effective date of this Agreement, and thereafter at least ten days prior to each insurance renewal date. Licensee must provide Licensor at least thirty (30) days notice before any such insurance will be canceled, allowed to expire, or materially reduced. However, in the event insurance is canceled for the non-payment of a premium, Licensee must provide to Licensor at least ten (10) days’ prior written notice before the effective date of cancellation. The required insurance policies shall be maintained with insurers reasonably satisfactory to Licensor, and shall be primary and non-contributory with any insurance or self-insurance maintained by Licensor.
5. Licensor's Use of the Property: Licensee agrees that Licensor, its successors and assigns, have the right to enter the Property, at all times, for any purpose, and the right to conduct any activity on the Property. Exercise of these rights by Licensor, its successors and assigns, will not result in compensation to Licensee for any damages whatsoever to personal property, structures, and/or crops located on the Property, nor shall Licensee be entitled to any compensation for any loss of use of the Property or a portion thereof, and/or any related damages, as a result of Licensor’s activities under this Article.
6. Licensee's Improvements: Licensee must submit, for Licensor's prior written approval, complete improvement plans, including, but not limited to, grading, lighting, landscaping, grounding, and irrigation plans, - identifying all existing and proposed improvements, a minimum of sixty (60) days prior to making any use of the Property. Licensee’s conceptual plans for proposed improvements shall be developed in accordance with the guidelines contained in the Appendix to this License. It is understood and agreed that the general guidelines contained in the Appendix are intended to provide a framework for the development of conceptual plans only; and that Licensor may modify or add to the conditions contained in the Appendix hereto, based on individual site characteristics, Licensor’s existing or potential operating needs or Licensee’s proposed use(s). Licensee must submit, for Licensor's prior written approval plans for any modifications to such improvements. Written approval may be modified and/or rescinded by Licensor for any reason whatsoever.
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To the extent Licensor reviews and/or approves any improvement plans, Licensor is doing so only for purposes of determining whether said improvements are compatible with Licensor’s use of the Property.
Under no circumstances shall such review and/or approval be construed as a warranty, representation, or promise that the Property is fit for the proposed improvements, or that said improvements comply with any applicable city, state, or county building requirements, other legal requirements, or the generally accepted standard of care.
At any time, Licensor may require Licensee to modify and/or remove any or all such previously approved improvements at Licensee’s risk and expense and without compensation from Licensor. Licensor is not required, at any time, to make any repairs, improvements, alterations, changes or additions of any nature whatsoever to the Propertyand/or any fixtures thereon. Licensee expressly acknowledges that any expenditures or improvements will in no way alter Licensor’s right to terminate in accordance with Articles 28, and/or 30.
7. Licensee's Personal Property: (i) Licensor grants Licensee permission to place Licensee’s personal property on the Property consistent with the use identified in Article 1 and other terms of this Agreement. Such permission granted by Licensor shall be revoked upon the earlier of the termination or expiration of this Agreement. All equipment and other property brought, placed or erected on the Property by Licensee shall be and remain the property of Licensee, except as otherwise set forth herein.
Licensee shall be responsible for any damage to the Property and/or Licensor’s personal property arising out of Licensee’s activities on the Property, including its use and/or removal of Licensee’s personal property. Licensee further acknowledges and agrees that Licensor is not responsible for Licensee’s personal property during the effectiveness of this Agreement, or upon termination or expiration. Licensor further assumes no duty or obligation to maintain or secure Licensee’s personal property at any time. (ii) Unless as specifically provided for in an Addendum to this Agreement, Licensee shall not store on the Property, for a period longer than twenty-four (24) consecutive hours, any personal property owned by a non-party to this Agreement.
Licensee will defend and indemnify Licensor, its directors, officers, agents, subcontractors, and employees, and its successors and assigns, from any and all claims, loss, damage, actions, causes of action, expenses and/or liability arising from the storage of, damage to, and/or loss of use of such nonparty’s personal property.
8. Height Limitations and Vertical Clearances: Any equipment used by Licensee or its agents, employees or contractors, on and/or adjacent to the Property, will be used and operated so as to maintain minimum clearances from all overhead electrical conductors as designated in the table below:
Vehicle/ Equipment Vertical Clearance
500 kV 35 feet
220 kV – 66kV 30 feet
<66kV (Distribution facilities) 25 feet
Telecom 18 feet
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All trees and plants on the Property will be maintained by Licensee at a maximum height of fifteen (15) feet. If requested by Licensor, Licensee will remove, at Licensee’s expense, any tree and/or other planting.
9. Access and Horizontal Clearances: Licensee will provide Licensor with adequate access to all of Licensor's facilities on the Property and at no time will there be any interference with the free movement of Licensor's equipment, personnel, and materials over the Property. Licensor may require Licensee to provide and maintain access roads within the Property, at a minimum usable width of sixteen (16) feet, with commercial driveway aprons and curb depressions capable of supporting a gross load of forty (40) tons on a three-axle vehicle. The minimum width of all roads shall be increased on curves by a distance equal to 400/inside radius of curvature. All curves shall have a radius of not less than 50 feet measured at the inside edge of the usable road surface. Unless otherwise specified in writing by Licensor, Licensee will make no use of the area directly underneath Licensor's towers and will maintain the following minimum clearances:
a. A 50-foot-radius around suspension tower legs, H-Frames and poles and 100-foot radius around dead-end tower legs, H-Frames and poles.
b. A 25-foot-radius around all other poles.
NOTE: Additional clearance may be required by Licensor for structures.
10. Parking: Licensee will not park, store, repair or refuel any motor vehicles or allow parking, storage, repairing or refueling of any motor vehicles on the Property unless specifically approved in a writing executed by Licensor.
11. Weeds, Brush, Rubbish and Debris (Weed Abatement): Licensee will keep the Property clean, free from weeds, brush, rubbish and debris and in a condition satisfactory to Licensor.
12. Flammables, Waste and Nuisances: Unless permitted by Licensor in writing, Licensee will not, or allow others, to place, use, or store any flammable or combustible materials or waste materials on the Property or commit any waste or damage to the Property or allow any to be done.
Licensee will be responsible for the control of and will be liable for any damage or disturbance, caused by any trespasser, dust, odor, flammable or waste materials, noise or other nuisance disturbances.
Licensee will not permit dogs on the Property.
13. Pesticides and Herbicides: Any pesticide or herbicide applications and disposals will be made in accordance with all Federal, State, County and local laws. Licensee will dispose of all pesticides, herbicides and any other toxic substances declared to be either a health or environmental hazard, and all materials contaminated by such substances, including but not limited to, containers, clothing and equipment, in the manner prescribed by law.
14. Hazardous Waste: Licensee will not engage in, or permit any other party to engage in, any activity on the Property that violates federal, state or local laws, rules or regulations pertaining to hazardous, toxic or infectious materials and/or waste. Licensee will indemnify and hold Licensor, its directors, officers, agents and employees, and its successors and assigns, harmless from all claims, loss, damage, actions, causes of action, expenses and/or liability arising from leaks of, spills of, and/or contamination by or from hazardous materials as defined by applicable laws or regulations, which may occur during and after the Agreement term, and are attributable to the actions of, or failure to act by, Licensee or any person claiming under Licensee.
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15. Signs: Licensee must obtain written approval from Licensor prior to the construction or placement of any sign, signboard or other form of outdoor advertising. Licensee shall within three (3) days from the date on which the Licensee learns of the graffiti remove any signs containing graffiti or shall otherwise remove such graffiti from the signs in a manner reasonably acceptable to Licensor.
Notwithstanding any other language in this Article, Licensee shall not advertise on any sign any product, service, or good which is (i) not directly related to Licensee’s use of the Property, (ii) offensive to the public, or (iii) which Licensor, in its reasonable discretion, deems objectionable.
16. Fencing and Existing Fixtures: Licensor disclaims any and all express or implied warranties for any fencing and/or other fixtures affixed to the Property, and further disclaims any liability arising from any disrepair of the same. Licensee may install fencing on the Property with prior written approval from Licensor. Such fencing will include double drive gates, in locations specified by Licensor, a minimum of twenty (20) feet in width, and designed to accommodate separate Licensor and Licensee locks. Licensee will maintain and repair all fencing and other fixtures affixed to the Property, including any grounding of the same as deemed necessary by Licensor, in a manner acceptable to Licensor. Grounding plans must be prepared and stamped by a licensed electrical engineer and submitted to Licensor.
17. Parkways and Landscaping: Licensee will keep parkway and sidewalk areas adjacent to the Property free of weeds, brush, rubbish and debris. Licensee will maintain parkways on the Property and provide landscaping that is compatible with adjoining properties and that is satisfactory to Licensor.
18. Irrigation Equipment: Any irrigation equipment located on the Property prior to the commencement of this Agreement, including but not limited to pipelines, well pumping equipment and other structures, is the property of Licensor and will remain on and be surrendered with the Property upon termination of this Agreement. Should Licensee desire to use the irrigation equipment, Licensee will maintain, operate, repair and replace, if necessary, all irrigation equipment at its own expense.
19. Underground and Above-Ground Tanks: Licensee will not install underground or aboveground storage tanks, as defined by any and all applicable laws or regulations, without Licensor's prior written approval.
20. Underground Facilities: Any underground facilities must be approved by Licensor pursuant to Article 6. Licensee must contact Dig Alert and comply with the applicable processes, policies and/or procedures of Dig Alert, prior to any underground installation. Any underground facilities installed or maintained by Licensee on the Property must have a minimum cover of three feet from the top of the facility and be capable of withstanding a gross load of forty (40) tons on a three-axle vehicle.
Licensee will compact any earth excavated to a compaction of ninety percent (90%). Licensee will relocate its facilities at its own expense so as not to interfere with Licensor's proposed facilities.
21. Utilities: Licensee will pay all charges and assessments for, or in connection with, water, electric current or other utilities which may be furnished to or used on the Property.
22. Taxes, Assessments and Liens: Licensee will pay all taxes and assessments which may be levied upon any crops, personal property, and improvements, including but not limited to, buildings, structures, and fixtures on the Property. Licensee will keep the Property free from all liens, including but not limited to, mechanics liens and encumbrances by use or occupancy by Licensee, or any person claiming under Licensee. If Licensee fails to pay the above-mentioned taxes, assessments or liens when SCE Doc. 145758 Att. Contract No. 9.5337
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due, Licensor may pay the same and charge the amount to the Licensee. All accounts not paid within thirty (30) days of the agreed upon due date will be charged a "late fee" on all amounts outstanding up to the maximum rate allowed by law.
23. Expense: Licensee will perform and pay all obligations of Licensee under this Agreement.
All matters or things required by Licensee will be performed and paid for at the sole cost and expense of Licensee, without obligation by Licensor to make payment or incur cost or expense for any such matters or things.
24. Assignments: This Agreement is personal to Licensee, and Licensee will not assign, transfer or sell this Agreement or any privilege hereunder in whole or in part, and any attempt to do so will be void and confer no right on any third party.
25. Compliance with Law: Licensee will comply with all applicable federal, state, county and local laws, all covenants, conditions and restrictions of record and all applicable ordinances, zoning restrictions, rules, regulations, orders and any requirements of any duly constituted public authorities now or hereafter in any manner affecting the Property or the streets and ways adjacent thereto. Licensee will obtain all permits and other governmental approvals required in connection with Licensee's activities hereunder. Licensee shall hold harmless, defend and indemnify Licensor, its officers, agents and employees, and its successors and assigns, from and against all claims, loss, damage, actions, causes of actions, expense and/or liability arising from or resulting from any violation of this provision.
26. Governing Law: The existence, validity, construction, operation and effect of this Agreement and all of its terms and provisions will be determined in accordance with the laws of the State of California.
27. Indemnification: Licensee shall hold harmless, defend and indemnify Licensor, its officers, agents and employees, and its successors and assigns, from and against all claims, loss, damage, actions, causes of actions, expense and/or liability arising from or growing out of loss or damage to property, including that of Licensor, or injury to or death of persons, including employees of Licensor resulting in any manner whatsoever, directly or indirectly, by reason of this Agreement or the use or occupancy of the Property by Licensee or any person claiming under Licensee.
28. Termination: Licensor or Licensee may terminate this Agreement, at any time, for any reason, upon thirty (30) days notice in writing. Additionally, Licensor may immediately terminate this Agreement pursuant to Article 30. Termination does not release Licensee from any liability or obligation (indemnity or otherwise) which Licensee may have incurred. Upon termination, Licensor may immediately recover from Licensee all amounts due and owing hereunder, plus interest at the maximum rate permitted by law on such amounts until paid, as well as any other amount necessary to compensate Licensor for all the detriment proximately caused by Licensee’s failure to perform its obligations under this Agreement. Licensee's continued presence after termination shall be deemed a trespass. In the event of a termination for any reason other than non-payment of the License fee, Licensor shall refund any previously collected/pre-paid License fees covering the unused portion of the remaining term, to the extent such fees exceed any offset claimed by Licensor under the Agreement
29. Events of Default: In addition to material defaults otherwise described herein, the occurrence of any of the following shall constitute a material default and breach of this Agreement by Licensee:
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(a) Any failure by Licensee to pay the consideration due under Article 3, or to make any other payment required to be made by Licensee when due. (b) The abandonment or vacating of the Property by Licensee. (c) Any attempted assignment or subletting of this Agreement by Licensee in violation of Article 24.
(d) The violation by Licensee of any resolution, ordinance, statute, code, regulation or other rule of any governmental agency for Licensee’s activities under this Agreement. (e) Any attempt to exclude Licensor from the licensed premises. (f) The making by Licensee of any general assignment for the benefit of creditors; the appointment of a receiver to take possession of substantially all of Licensee's assets located on the Property or of Licensee's privileges hereunder where possession is not restored to Licensee within five (5) days; the attachment, execution or other judicial seizure of substantially all of Licensee's assets located on the Property or of Licensee's privileges hereunder, where such seizure is not discharged within five (5) days. (g) Any case, proceeding or other action brought against Licensee seeking any of the relief mentioned in "clause f" of this Article which has not been stayed or dismissed within thirty (30) days after the commencement thereof.
(h) Any claim by Licensee that it has a possessory interest and/or irrevocable license in the Property.
(i) With respect to items not otherwise listed in Article 29.a-h, the failure by Licensee to observe and perform any other provision of this Agreement to be observed or performed by Licensee. Licensor shall provide written notice of such failure and Licensee shall be considered in material default where such failure continues for a total of ten (10) or more consecutive days from the date of the notice. Further, with respect to items not otherwise listed in Article 29.a-h, Licensee shall be considered in material default should Licensee fail to observe or perform any other provision of this Agreement for more than fifteen (15) days during the entire Term of the Agreement in the aggregate, after Licensor provides an initial written notice of such failure. After providing initial notice under this provision, Licensor will not be required to provide any subsequent notice of breach of this Agreement.
30. Remedies: Notwithstanding the notice requirement in Article 28, in the event of any material default by Licensee, then in addition to any other remedies available to Licensor at law or in equity, Licensor shall have the option to immediately terminate this Agreement and all rights of Licensee hereunder by giving written notice of such immediate termination to Licensee.
31. Licensee’s Personal Property Upon Termination or Expiration: In the event that this Agreement is terminated, whether termination is effected pursuant to Article 28 and/or 30, or in the event this Agreement expires pursuant to Article 2, Licensee shall, at Licensee’s sole cost and expense and prior to the earlier of the effective termination date or expiration date, remove all weeds, debris, and SCE Doc. 145758 Att. Contract No. 9.5337
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waste from the Property and peaceably quit, surrender and restore the licensed Property to the condition it was in prior to the Licensee’s use of the Property, in a manner satisfactory to Licensor.
If Licensee fails or refuses to remove any of Licensee’s personal property, building(s), fixture(s) or structure(s) from the Property prior to the earlier of the termination date or expiration date, said personal property, building(s), fixture(s) or structure(s) shall be deemed abandoned by the Licensee, and the Licensor shall have the right, but not the obligation, to remove, destroy, sell or otherwise dispose of them with no further notice to Licensee. Licensor shall not be required to seek and/or obtain judicial relief (including, but not limited to, the filing of an unlawful detainer action), nor shall Licensor be responsible for the value of Licensee’s personal property.
Licensor shall have the right to charge and recover from Licensee all costs and expenses incurred by Licensor related to (i) the removal, disposal or sale of Licensee’s personal property, building(s), fixture(s) or structure(s), (ii), the removal of any waste, weeds, or debris on the Property, (iii) environmental studies and environmental remediation and/or cleanup attributable to Licensee’s use of the Property, and (iv) the restoration of the Property to the condition it was in prior to Licensor’s initial use of the Property.
Licensee agrees to pay such expenses to Licensor upon demand.
32. Limitation of Liability:
IN ORDER FOR LICENSEE TO OBTAIN THE BENEFIT OF THE FEE IDENTIFIED IN ARTICLE 3,
WHICH INCLUDES A LESSER ALLOWANCE FOR RISK FUNDING FOR LICENSOR, LICENSEE AGREES TO LIMIT LICENSOR’S LIABILITY PURSUANT TO THIS AGREEMENT. AS SUCH, IF LICENSEE IS ENTITLED TO ANY RELIEF FOR LICENSOR’S NEGLIGENCE, INCLUDING GROSS NEGLIGENCE, FOR DAMAGE OR DESTRUCTION OF LICENSEE’S PERSONAL PROPERTY,
BUILDING(S), STRUCTURE(S) OR FIXTURE(S) AFTER THE TERMINATION OR EXPIRATION OF
THIS AGREEMENT, THE TOTAL LIABILITY OF LICENSOR SHALL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY LICENSEE TO LICENSOR DURING THE TERM OF THIS AGREEMENT.
FURTHER, IN NO EVENT SHALL LICENSOR BE LIABLE UNDER ANY CIRCUMSTANCES FOR INJURY OR DAMAGE TO LICENSEE’S BUSINESS, IF ANY, INCLUDING, BUT NOT LIMITED TO,
LOSS OF PROFITS, LOSS OF RENTS OR OTHER EVENTS, LOSS OF BUSINESS OPPORTUNITY,
LOSS OF GOODWILL OR LOSS OF USE, IN EACH CASE, HOWEVER OCCURRING, RELATED TO THIS AGREEMENT.
33. Non-Possessory Interest: Licensor retains full possession of the Property and Licensee will not acquire any possessory interest, whether temporary, permanent, or otherwise by reason of this Agreement, or by the exercise of the permission given herein. Licensee will make no claim to any such interest and Licensee will not claim that it has or ever had an irrevocable license in the Property.
34. Waiver: Licensor shall not be deemed to waive any provision of this Agreement orally or by conduct. Any waiver by Licensor of any provision of this Agreement must be in a writing signed by Licensor. No waiver by Licensor of any provision shall be deemed a waiver of any other provision or of any subsequent breach by Licensee of the same or any other provision. Licensor's consent to or approval of any act shall not be deemed to render unnecessary the obtaining of Licensor's consent to or approval of any subsequent act by Licensee. Licensor’s acceptance of payment after providing notice of termination to Licensee shall not constitute a waiver of Licensor’s termination of the Agreement.
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35. Authority: This Agreement is executed subject to General Order No. 69-C of the Public Utilities Commission of the State of California dated and effective July 10, 1985, incorporated by this reference. As set forth in General Order 69-C, this License is made conditional upon the right of the Licensor either on order of the Public Utilities Commission or on Grantor’s own motion to resume the use of that property (including, but not limited to the removal of any obstructions) whenever, in the interest of Licensor’s service to its patrons or consumers, it shall appear necessary or desirable to do so.
Licensee agrees to comply with all federal, state and local laws and regulations. This Agreement should not be construed as a subordination of Licensor’s rights, title and interest in and to its fee ownership, nor should this Agreement be construed as a waiver of any of the provisions contained in said License or a waiver of any costs of relocation of affected Licensor facilities.
36. Electric and Magnetic Fields (“EMF”): There are numerous sources of power frequency electric and magnetic field (“EMF”), including household or building wiring, electrical appliances and electric power transmission and distribution facilities. There have been numerous scientific studies about the potential health effects of EMF. Interest in a potential link between long-term exposures to EMF and certain diseases is based on this scientific research and public concerns.
While some 40 years of research have not established EMF as a health hazard, some health authorities have identified magnetic field exposures as a possible human carcinogen. Many of the questions about diseases have been successfully resolved due to an aggressive international research program. However, potentially important public health questions remain about whether there is a link between EMF exposures in homes or work and some diseases including childhood leukemia and a variety of other adult diseases (e.g. adult cancers and miscarriages). While scientific research is continuing on a wide range of questions relating to exposures at both work and in our communities, a quick resolution of the remaining scientific uncertainties is not expected.
Since Licensee plans to license or otherwise enter Licensor property that is in close proximity to Licensor electric facilities, Licensor wants to share with Licensee and those who may enter the property under this agreement, the information available about EMF. Accordingly, Licensor has attached to this document a brochure that explains some basic facts about EMF and that describes Licensor policy on EMF. Licensor also encourages Licensee to obtain other information as needed to assist in understanding the EMF regarding the planned use of this property.
37. Induced Voltages: Licensee hereby acknowledges that any structures (including, but not limited to, buildings, fences, light poles) that exist or may be constructed on the Property licensed herein, (hereinafter, the “Structures”) in close proximity to one or more high voltage (66 kilovolt or above) electric transmission lines and/or substation facilities may be susceptible to induced voltages, static voltages and/or related electric fault conditions (hereinafter collectively referred to as “Induced Voltages”) unless appropriate grounding or other mitigation measures are incorporated into the Structures. If not properly mitigated, Induced Voltages can cause a variety of safety and/or nuisance conditions including, but not limited to, electric shocks or other injuries to individuals contacting the Structures or other utilities connected to the Structures (including, but not limited to, natural gas lines, water lines or cable television lines), or interference with or damage to sensitive electronic equipment in or around the Structures. Measures to mitigate Induced Voltages, if required, will vary from case to case because of factors such as electric facility configuration and voltage, other utilities involved, or sensitivity of electronic equipment. Licensee will be responsible to determine what Induced Voltages mitigation measures should be undertaken regarding the Structures and to implement such mitigation measures at its sole cost and expense.
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Licensee agrees for itself and for its contractors, agents, licensees, invitees, and employees, to save harmless and indemnify Licensor, its parent, subsidiaries and affiliated entities and their respective officers and employees against all claims, loss, damage, actions, causes of action, expenses and/or liability arising from or growing out of loss or damage to property, including Licensor’s own personal property, or injury to or death of persons, including employees of Licensor caused by or resulting from or connected to Induced Voltages on or related to the Structures.
38. Notices: All notices required to be given by either party will be made in writing and deposited in the United States mail, first class, postage prepaid, addressed as follows:
To Licensor: Southern California Edison Company
Vegetation & Land Management
Land Management – Southern Region
2 Innovation Way
Pomona, CA 91768
To Licensee: City of Seal Beach
211 Eighth Street
Seal Beach, CA 90740
Business Telephone No. (562) 431-2527
Notice will be deemed effective on the third calendar day after mailing. A party will immediately notify the other party in writing of any address change.
39. Recording: Licensee will not record this Agreement.
40. Complete Agreement: Licensor and Licensee acknowledge that the foregoing provisions and any appendix, addenda and exhibits attached hereto constitute the entire Agreement between the parties. This Agreement may not be modified, amended, contradicted, supplemented or altered in any way by any previous written or oral agreements or any subsequent oral agreements or unsigned written agreements. This Agreement may be modified or amended only by way of a writing executed by both parties.
41. Signature Authority: Each of the persons executing this Agreement warrants and represents that he or she has the full and complete authority to enter into this Agreement on behalf of the Party for which he or she is signing, and to bind said party to the agreements, covenants and terms contained herein.
42. Survival: Any provision of this Agreement that imposes an obligation after termination or expiration of this Agreement shall survive the termination or expiration of this Agreement. (THIS SPACE LEFT INTENTIONALLY BLANK)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate.
LICENSOR:
SOUTHERN CALIFORNIA EDISON COMPANY
By___________________________________________
LILY DIEP
Real Estate Specialist
Land Management – Southern Region
Vegetation & Land Managment
_____________________
Date
LICENSEE:
CITY OF SEAL BEACH
By___________________________________________
JILL R. INGRAM, City Manager
_____________________
Date
By___________________________________________
City Attorney
_____________________
Date
June 7, 2022
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APPENDIX
Guidelines for Standard Licensee Improvements
The following criteria are provided to aid in developing a conceptual plot plan to be submitted to Southern California Edison Company herein after referred to as “Licensor” for consideration and approval prior to the start of any construction on “Licensor” property.
Plans should be developed indicating the size and location of all planned improvements. The plan should specify the dimensions of all planned improvements and the distance of all planned improvements from property lines and all adjacent “Licensor” towers, poles, guy wires or other “Licensor” facilities.
The plan must show the locations of all “Licensor” towers and poles, 16-foot wide access roads, main water lines and water shut-off valves, electrical service lines and parking areas. All plans must indicate adjacent streets and include a “north arrow” and the Licensee’s name.
SHADE STRUCTURES
(Definition: A non-flammable frame covered on the top with a material designed to provide shade to aid in growing plants)
1. Shade structures must maintain minimum spacing of 50 feet between shade structure locations, should be placed perpendicular to Licensor’s overhead electrical conductors (wires) unless otherwise approved in writing by Licensor, and should not exceed maximum dimensions of:
a. 100 feet in length
b. 50 feet in width
c. 15 feet in height
2. Shade structures will not be permitted within the following areas reserved for Licensor’s access:
a. Within 2 feet from edge of 16-foot wide access roads b. 50-foot radius around suspension tower legs, H-Frames and poles c. 100-foot radius around dead-end tower legs, H-Frames and poles d. 25-foot radius around anchors/guy wires, poles and wood poles
3. Shade structures must utilize the following design:
a. Temporary/slip joint construction only
b. Non-flammable frame only
c. Adequately grounded by a licensed electrical engineer d. Shade covering must be non-flammable and manufactured with non-hydrocarbon materials.
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SHADEHOUSES/HOTHOUSES
(Definition: A simple, non-flammable, enclosed structure designed to control temperature without the benefit of heating and/or air conditioning units to aid in propagating and/or growing plants)
1. Shadehouses/hothouses must maintain minimum spacing of 50 feet between shadehouse/hothouse locations, should be placed in perpendicular to Licensor’s overhead electrical conductors (wires) unless otherwise approved in writing by Licensor, and should not exceed maximum dimensions of:
a. 100 feet in length
b. 50 feet in width
c. 15 feet in height
2. Shadehouses/hothouses will not be permitted within the following areas reserved for Licensor’s access:
a. Within 2 feet from edge of 16-foot wide access roads b. 50-foot radius around suspension tower legs, H-Frames and poles c. 100-foot radius around dead-end tower legs, H-Frames and poles d. 25-foot radius around anchors/guy wires, poles and wood poles
3. Shadehouses/hothouses must utilize the following design:
a. Temporary/slip joint construction only
b. Non-flammable frame only
c. Adequately grounded by a licensed electrical engineer d. Covering must be non-flammable and manufactured with non-hydrocarbon materials
GREENHOUSES
(Definition: An enclosed structure designed to control temperature and/or humidity by the use of heating and/or air conditioning units to aid in propagating and/or growing plants) Greenhouses will be considered on a case-by-case basis.
IRRIGATION SYSTEMS / WELLS
1. Maximum diameter of pipe: 3 inches
2. All pipe must be plastic Schedule 40 or better
3. No irrigation system will be permitted within the following areas reserved for Licensor’s access:
a. Within 2 feet from edge of 16-foot wide access roads b. 50 -foot radius around suspension tower legs, H-Frames and poles SCE Doc. 145758 Att. Contract No. 9.5337
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c. 100-foot radius around dead-end tower legs, H-Frames and poles
4. Sprinkler and drip irrigation controllers must be located at the edge of the right of way
5. Suitable identification markers will be required on main controllers and valves
6. Locations of main shut off valve will be provided and shown on a plot plan
7. Underground facilities must have a minimum cover of three feet
8. Earth disturbed must be compacted to ninety percent (90%)
LANDSCAPING
1. No trees will be permitted under the overhead electrical conductors or within 20 feet of the “drip line” of the conductors
2. Trees must have slow to moderate growth, and must be of a variety that grows to a maximum height of only 40 feet and must be maintained by the Licensee at a height not to exceed 15 feet
3. Placement of large rocks (boulders) must be approved in writing by Licensor
4. Any mounds or change of grade must be approved in writing by Licensor
5. No cactus or thorny shrubs will be permitted
6. Retaining walls, planters, etc. may be considered on a case by case basis and must be approved in writing by Licensor
TRAILERS (Definition: Removable / portable office modules are not permitted without Licensor’s prior permission. Trailers must meet the following criteria to be considered: Trailers must meet the following criteria:
a. Must have axles and wheel and be able to be moved
b. Maximum length: 40 feet
c. Maximum height: 15 feet
d. Maximum width: 12 feet
2. No trailers will be permitted within the following areas reserved for Licensor’s access:
a. Within 2 feet from edge of 16-foot wide access roads b. 50-foot radius around suspension tower legs, H-Frames and poles c. 100-foot radius around dead-end tower legs, H-Frames and poles d. 25-foot radius around anchors/guy wires, poles and wood poles e. Under or within 10 feet of the conductor “drip lines” SCE Doc. 145758 Att. Contract No. 9.5337
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3. Sewer or gas lines to trailers must be approved in writing by Licensor
4. Location of all electrical and telephone lines must be approved in writing by Licensor
5. Electrical lines must be installed by a licensed -general contractor.
6. Trailers shall not be used for residential purposes
7. Toxic or flammable materials will not be permitted in trailers
8. Adequately grounded by a licensed -general contractor
PARKING AREAS
Parking areas should not be designed under the overhead electrical conductors or within 10 feet of the “drip lines” without Licensor’s prior written approval. Parking spaces to be identified under the approved site plan. “No Parking” striping may be required in areas where additional clearance is required.
MATERIAL STORAGE
1. If an emergency occurs, Licensee must immediately relocate all materials specified by Licensor to provide Licensor clear access to its facilities.
2. Licensee must provide Licensor with a list of material stored on the right of way
3. No toxic or flammable materials will be permitted
4. No materials shall be stored within the following areas reserved for Licensor’s access:
a. Within 2 feet from edge of 16-foot wide access roads b. 50 - foot radius around suspension tower legs, H-Frames and poles c. 100 - foot radius around dead-end tower legs, H-Frames and poles d. 25 feet from anchors/guy wires, poles and wood poles
5. Storage of materials not to exceed a maximum height of 15 feet
6. No storage of gasoline, diesel or any other type of fuel will be permitted
7. Any fencing around the storage areas must have Licensor’s prior written approval.
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A D D E N D U M
PARKING
A. Vehicles parked on the Property are limited to those owned by Licensee and its employees, invitees, customers and visitors. Licensee will not allow the storage, repairing or refueling of any vehicles on the property.
B. Licensor only allows overflow parking. No portion of the Property will be used to satisfy the minimum parking requirements of any government agency.
C. Licensee must obtain prior written approval from Licensor for any vehicle parking improvements and/or subsequent modification. Licensee will maintain parking improvements at all times in a safe condition satisfactory to Licensor.
D. At any time, Licensor may require removal, modification, or relocation of any portion of the parking improvements. At Licensee’s sole expense, Licensee will remove, modify, or relocate same to a location satisfactory to Licensor, within sixty (60) days after receiving notice to remove, modify, or relocate from Licensor.
E. Parking will be permitted in designated areas only. Unless prior written approval is received from Licensor, no parking will be permitted under or within ten (10) feet of the “drip line” of Licensor's overhead electrical conductors.
F. All parking spaces and parking improvements are to be identified on a site plan and submitted to Licensor to obtain prior written approval from Licensor.
G. Bollards, K-rails, or “No Parking” striping may be required to protect Licensor’s structures or in areas where additional clearance is required.
H. The Licensee’s parking area shall not interfere with the Licensor’s minimum access road requirements.
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A D D E N D U M
PARK USE
A. Licensee must obtain the prior written approval from Licensor for the installation of any improvements, including any subsequent modifications. Licensee will maintain all improvements in a safe condition satisfactory to Licensor.
B. At any time, Licensor may require the removal, modification, or relocation of any portion of the improvements. Licensee will remove, modify, or relocate same, at its expense, to a location satisfactory to Licensor within sixty (60) days after receiving notice to remove, modify, or relocate from Licensor.
C. Licensee must submit, for Licensor's prior written approval, complete improvement plans, including, but not limited to, grading, lighting, landscaping, grounding, and irrigation plans, that identify all existing and proposed improvements.
D. At Licensee’s expense, Licensee will post signs at all access points to the Property that read: “No Kite Flying, Model Airplanes, unmanned aerial vehicles (UAV’s or Drones), or Metallic Balloons Permitted, High Voltage Wires Overhead.”
E. At Licensee’s expense, Licensee will post signs at all access points of the Property that read: “No Motorcycles, Motorbikes, Horseback Riding or Hunting Permitted.” F. At Licensee’s expense, Licensee will post signs at all access points of the Property that read:
“Dogs are required to be on leash at all times.”
G. Licensee must close the park at any time Licensor deems it necessary for the safety of the general public or for maintenance of Licensor’s facilities. If it is necessary to close the park for a period of more than three days, Licensee will notify the general public of the closure by posting at all access points to the property.
H. At Licensee’s expense, Licensee will install removable post-type barriers designed to accommodate Licensor’s locks, to prevent unauthorized vehicular use or parking, including but not limited to, motorcycles, off-road vehicles, and “all-terrain” vehicles.
I. Trespass discouragers shall be installed on Licensor’s towers. The discourager installation will be performed by Licensor. Licensee shall pay Licensor in advance, for all Licensor’s direct and indirect costs associated with the engineering, purchase, and installation of the discouragers.
All towers shall be equipped with signs so worded as to warn the public of the danger of climbing the towers. Such signs shall be placed and arranged so that they may be read from the four corners of the structure. Such signs shall be neither less than 8 feet nor more than 20 feet above the ground except where the lowest horizontal member of the tower or structure is more than 20 feet above the ground in which case the sign shall be not more than 30 feet above the ground.
J. Licensee must design and construct all walkways, underground sprinkler systems, lighting facilities, and drains to be capable of withstanding a gross load of forty (40) tons on a three-axle vehicle.
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A D D E N D U M
TREES/LANDSCAPING
A. Existing landscaping improvements (trees, plants, and shrubs) have been inspected and approved by Licensor. This written approval may be modified and/or rescinded by Licensor for any reason whatsoever.
B. At any time, Licensor may require Licensee to modify and/or remove any or all such previously approved improvements at Licensee’s risk and expense and without any compensation from Licensor.
C. Licensee agrees and accepts full responsibility for the maintenance and/or removal of all trees, plants, and shrubs (vegetation) located on the property. All costs associated with the maintenance and/or removal of trees/vegetation will be the sole burden of Licensee.
D. Periodically, the Property will be inspected by Licensor, and upon determination that any tree/vegetation requires trimming or removal, Licensee will be notified by Licensor. Failure by Licensee to trim or remove said tree/vegetation in the time allotted, that results in Licensor’s contractor performing the work, Licensee will be billed by Licensor for the contractor’s expense; and Licensee may be subject to termination under the terms and conditions of the Permit or License.
E. Trees/vegetation must be slow growing and maintained by Licensee to not exceed fifteen (15) feet in height.
F. Failure by Licensee to maintain all permit or license clearance requirements will require removal at Licensee’s expense.
G. Unless authorized in writing by Licensor, Licensee agrees not to plant any additional trees, plants, or shrubs within the Property. If additional authorization is requested by Licensee and prior written authorization is received by Licensor, no tree or plant species that is protected by federal or state law shall be planted within Licensor’s land and no cactus or thorny shrubs/plants will be permitted.
H. Any improvements or alterations, including retaining walls, planters, placement of large rocks, etc. and any mounds or changes of grade, require prior written approval by Licensor.
I. Licensee will keep the Property clean, free from weeds, rubbish and debris, and in a condition satisfactory to Licensor.
J. Upon permit or license termination, Licensee agrees to remove all trees/vegetation and improvements and restore the Property to a condition satisfactory to Licensor, at the sole expense of Licensee.
22 April 5, 2022
[email protected]
Southern California Edison
2 Innovation Way
Pomona, CA 91768
Member Name: City of Seal Beach
Additional Protected Party: Southern California Edison
Activity: License Agreement No. 9.5337
Coverage Period: From 12:01 AM on 4/5/2022 to 11:59 PM on 7/1/2022
This Evidence of Coverage is issued on an annual basis and will be automatically reissued every June until expiration of the written contract.
The City of Seal Beach (Member) along with other California public agencies, is a member of the California Joint Powers Insurance Authority (California JPIA), and participates in the following self-insurance and commercial insurance program that is administered by the California JPIA for its members:
Liability Program, Including Automobile Liability
Coverage Limit: $2,000,000 per occurrence
Annual Aggregate Limit: $2,000,000
On behalf of the Member, the California JPIA agrees to include the above-named additional Protected Party as a Protected Party under the Memorandum of Coverage - Liability Program, subject to the above-stated limits, but only for "Occurrences" arising out of the described activity, during the described Coverage Period, and where required under the terms of a written agreement between the Member and the additional Protected Party. The California JPIA will endeavor to provide at least thirty (30) days notice of any change in the foregoing information. If the written agreement requires, coverage shall be primary.
Coverage is subject to all the terms, Definitions, Exclusions, Conditions and Responsibilities of the Memorandum of Coverage - Liability Program and the Limits of Coverage stated above. Any injury or damage caused by the sole negligence of the additional Protected Party named above is not covered.
Sincerely,
Jim Thyden
Insurance Programs Manager
cc: Tim Kelsey, Seal Beach, [email protected]
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CITY OF SEAL BEACH
L I C E N S E A G R E E M E N T
I N D E X O F A R T I C L E S
1. USE
2. TERM
3. CONSIDERATION
4. INSURANCE
5. LICENSOR’S USE OF THE PROPERTY
6. LICENSEE’S IMPROVEMENTS
7. LICENSEE'S PERSONAL PROPERTY
8. HEIGHT LIMITATIONS AND VERTICAL CLEARANCES
9. ACCESS AND CLEARANCES
10. PARKING
11. WEEDS, BRUSH, RUBBISH AND DEBRIS (WEED ABATEMENT)
12. FLAMMABLES, WASTE AND NUISANCES
13. PESTICIDES AND HERBICIDES
14. HAZARDOUS WASTE
15. SIGNS
16. FENCING AND EXISTING FIXTURES
17. PARKWAYS AND LANDSCAPING
18. IRRIGATION EQUIPMENT
19. UNDERGROUND TANKS
20. UNDERGROUND FACILITIES
21. UTILITIES
22. TAXES, ASSESSMENTS AND LIENS
23. EXPENSE
24. ASSIGNMENTS
25. COMPLIANCE WITH LAW
26. GOVERNING LAW
27. INDEMNIFICATION
28. TERMINATION
29. EVENTS OF DEFAULT
30. REMEDIES
31. LICENSEE’S PERSONAL PROPERTY UPON TERMINATION OR EXPIRATION
32. LIMITATION OF LIABILITY
33. NON-POSSESSORY INTEREST
34. WAIVER
35. AUTHORITY
36. ELECTRIC AND MAGNETIC FIELDS
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37. INDUCED VOLTAGES
38. NOTICES
39. RECORDING
40. COMPLETE AGREEMENT
41. SIGNATURE AUTHORITY
42. SURVIVAL
APPENDIX: GUIDELINES FOR STANDARD LICENSEE IMPROVEMENTS
ADDENDUM(S)
NON-MOTORIZES BIKING & HIKING TRAILS
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LICENSE AGREEMENT
THIS AGREEMENT between SOUTHERN CALIFORNIA EDISON COMPANY, a corporation organized under the laws of the State of California, called "Licensor", and CITY OF SEAL BEACH, called "Licensee";
WITNESSETH: That Licensor, for and in consideration of the faithful performance by Licensee of the terms, covenants and agreements hereinafter set forth to be kept and performed by Licensee, does hereby give to Licensee the license to use that certain real property solely for the purpose hereinafter specified, upon and subject to the terms, reservations, covenants and conditions hereinafter set forth, hereinafter designated as "Property” on the Exhibit "A" attached hereto and made a part hereof, being a portion of Assessor’s Parcel Numbers 095-681-35 and 7237-018-809, situated in the City of Seal Beach, County of Orange, State of California, subject to any and all covenants, restrictions, reservations, exceptions, rights and easements, whether or not of record.
Acknowledgment of License and Disclaimer of Tenancy
Licensee acknowledges and agrees that the License constitutes a limited, revocable, non-possessory, personal and non-assignable privilege to use the Property solely for those permitted uses and activities expressly identified in the Agreement (the “License Privilege”). Licensee further acknowledges and agrees that:
● The consideration paid by Licensee pursuant to Article 3 of the Agreement is consistent with the value of the rights comprising the License Privilege; the consideration is not consistent with the higher market value for a greater right, privilege or interest (such as a lease) in the Property or similarly situated parcels. ● Licensee is not a tenant or lessee of Licensor and holds no rights of tenancy or leasehold in relation to the Property.
● The Agreement and/or any prior and/or future acts or omissions of Licensor shall not create (or be construed as creating) a leasehold, tenancy or any other interest in the Property.
● Licensor may terminate the License and revoke the License Privilege at any time, subject, if applicable, to a notice period agreed upon by the parties, as more particularly set forth in the Agreement.
● In consideration of Licensor’s grant of the License, Licensee specifically and expressly waives, releases and relinquishes any and all right(s) to assert any claim of right, privilege or interest in the Property other than the License. ● Licensee further acknowledges and agrees that without the representations and agreements set forth herein, Licensor would not enter into the Agreement.
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1. Use: Licensee will use the Property for bicycle and walking path purposes only. Licensor makes no representation, covenant, warranty or promise that the Property, and any fixtures thereon, are fit or suitable for any particular use, including the use for which this Agreement is made and Licensee is not relying on any such representation, covenant, warranty or promise. Licensee’s use of the property for any other purpose and/or failure to utilize the Property in accordance with this License as determined by the Licensor in its sole discretion will be deemed a material default and grounds for immediate termination of this Agreement in accordance with Articles 28 and/or 30.
2. Term: Unless otherwise terminated as provided herein, this Agreement will be in effect for a term of five (5) years commencing on the first day of July, 2022 and ending on the last day of June, 2027. Licensee acknowledges that this Agreement does not entitle Licensee to any subsequent agreement, for any reason whatsoever, regardless of the use Licensee makes of the Property, the improvements Licensee places on or makes to the Property, or for any other reason.
3. Consideration: Licensee will pay to Licensor the sum of Six Hundred Fifty Six and 73/100 Dollars ($656.73) upon the execution and delivery of this Agreement with subsequent annual payments. Payment to Licensor must be in the form of a check or money order payable to Southern California Edison Company. No cash payments will be accepted by Licensor. Payment schedule:
Year Term Yearly
Amount
Payment Due
First Day Of
First Year 2022 $656.73 July
Second Year 2023 $676.43 July
Third Year 2024 $696.72 July
Fourth Year 2025 $717.62 July
Fifth Year 2026 $739.15 July
All accounts not paid within 30 days of the agreed upon due date will be charged a late fee equal to ten percent (10%) of the full amount that was due on said date. To the extent a payment is not made within sixty (60) days, Licensor may increase the late fee to twenty percent (20%) of the full amount due.
Licensor shall further be entitled to any other costs associated with collection of the unpaid amounts.
All payments subsequent to the initial payment will be paid to the Southern California Edison Company, Post Office Box 800 Rosemead, California, 91770, and Attention: Corporate Accounting Department – Accounts Receivable.
4. Insurance: During the term of this Agreement, Licensee shall maintain the following insurance:
(a) Workers’ Compensation with statutory limits, under the laws of the State of California and Employer’s Liability with limits of not less than $1,000,000.00 each accident, disease/each employee, and disease/policy limit. Licensee shall require its insurer to waive all rights of subrogation against Licensor, its officers, agents and employees, except for any liability resulting from the willful or grossly negligent acts of the Licensor.
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(b) Commercial General Liability Insurance, including contractual liability and products liability, with limits not less than $1,000,000.00 per occurrence and $1,000,000.00 in the aggregate. Such insurance shall: (i) name Licensor, its officers, agents and employees as additional insureds, but only for Licensee’s negligent acts or omissions; (ii) be primary for all purposes and (iii) contain separation of insureds or cross-liability clause, and (iv) require its insurer to waive all rights of subrogation against Licensor, its officers, agents and employees, except for any liability resulting from the willful or grossly negligent acts of the Licensor.
(c) Commercial Automobile Liability insurance with a combined single limit of $1,000,000.00. Such insurance shall cover the use of owned, non-owned and hired vehicles on the Property.
(d) Self - Insurance: Licensee may self-insure all of the insurance requirements above if they belong to an approved Secondary Use Category and the self-insurance is maintained under a self-insurance program reasonably satisfactory to Licensor. Bicycle and walking path use is an approved Secondary Use Category; Licensee may submit written verification of self-insurance to meet the above insurance requirements.
The failure to maintain such insurance may be deemed by Licensor a material default of this Agreement and grounds for immediate termination pursuant to Articles 28 and/or 30. Licensee shall provide Licensor with proof of such insurance by submission of certificates of insurance, pursuant to Article 38 “Notices”, at least ten days prior to the effective date of this Agreement, and thereafter at least ten days prior to each insurance renewal date. Licensee must provide Licensor at least thirty (30) days notice before any such insurance will be canceled, allowed to expire, or materially reduced. However, in the event insurance is canceled for the non-payment of a premium, Licensee must provide to Licensor at least ten (10) days’ prior written notice before the effective date of cancellation. The required insurance policies shall be maintained with insurers reasonably satisfactory to Licensor, and shall be primary and non-contributory with any insurance or self-insurance maintained by Licensor.
5. Licensor's Use of the Property: Licensee agrees that Licensor, its successors and assigns, have the right to enter the Property, at all times, for any purpose, and the right to conduct any activity on the Property. Exercise of these rights by Licensor, its successors and assigns, will not result in compensation to Licensee for any damages whatsoever to personal property, structures, and/or crops located on the Property, nor shall Licensee be entitled to any compensation for any loss of use of the Property or a portion thereof, and/or any related damages, as a result of Licensor’s activities under this Article.
6. Licensee's Improvements: Licensee must submit, for Licensor's prior written approval, complete improvement plans, including, but not limited to, grading, lighting, landscaping, grounding, and irrigation plans, - identifying all existing and proposed improvements, a minimum of sixty (60) days prior to making any use of the Property. Licensee’s conceptual plans for proposed improvements shall be developed in accordance with the guidelines contained in the Appendix to this License. It is understood and agreed that the general guidelines contained in the Appendix are intended to provide a framework for the development of conceptual plans only; and that Licensor may modify or add to the conditions contained in the Appendix hereto, based on individual site characteristics, Licensor’s existing or potential operating needs or Licensee’s proposed use(s). Licensee must submit, for Licensor's prior written approval plans for any modifications to such improvements. Written approval may be modified and/or rescinded by Licensor for any reason whatsoever.
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To the extent Licensor reviews and/or approves any improvement plans, Licensor is doing so only for purposes of determining whether said improvements are compatible with Licensor’s use of the Property.
Under no circumstances shall such review and/or approval be construed as a warranty, representation, or promise that the Property is fit for the proposed improvements, or that said improvements comply with any applicable city, state, or county building requirements, other legal requirements, or the generally accepted standard of care.
At any time, Licensor may require Licensee to modify and/or remove any or all such previously approved improvements at Licensee’s risk and expense and without compensation from Licensor. Licensor is not required, at any time, to make any repairs, improvements, alterations, changes or additions of any nature whatsoever to the Propertyand/or any fixtures thereon. Licensee expressly acknowledges that any expenditures or improvements will in no way alter Licensor’s right to terminate in accordance with Articles 28, and/or 30.
7. Licensee's Personal Property: (i) Licensor grants Licensee permission to place Licensee’s personal property on the Property consistent with the use identified in Article 1 and other terms of this Agreement. Such permission granted by Licensor shall be revoked upon the earlier of the termination or expiration of this Agreement. All equipment and other property brought, placed or erected on the Property by Licensee shall be and remain the property of Licensee, except as otherwise set forth herein.
Licensee shall be responsible for any damage to the Property and/or Licensor’s personal property arising out of Licensee’s activities on the Property, including its use and/or removal of Licensee’s personal property. Licensee further acknowledges and agrees that Licensor is not responsible for Licensee’s personal property during the effectiveness of this Agreement, or upon termination or expiration. Licensor further assumes no duty or obligation to maintain or secure Licensee’s personal property at any time. (ii) Unless as specifically provided for in an Addendum to this Agreement, Licensee shall not store on the Property, for a period longer than twenty-four (24) consecutive hours, any personal property owned by a non-party to this Agreement.
Licensee will defend and indemnify Licensor, its directors, officers, agents, subcontractors, and employees, and its successors and assigns, from any and all claims, loss, damage, actions, causes of action, expenses and/or liability arising from the storage of, damage to, and/or loss of use of such nonparty’s personal property.
8. Height Limitations and Vertical Clearances: Any equipment used by Licensee or its agents, employees or contractors, on and/or adjacent to the Property, will be used and operated so as to maintain minimum clearances from all overhead electrical conductors as designated in the table below:
Vehicle/ Equipment Vertical Clearance
500 kV 35 feet
220 kV – 66kV 30 feet
<66kV (Distribution facilities) 25 feet
Telecom 18 feet
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All trees and plants on the Property will be maintained by Licensee at a maximum height of fifteen (15) feet. If requested by Licensor, Licensee will remove, at Licensee’s expense, any tree and/or other planting.
9. Access and Horizontal Clearances: Licensee will provide Licensor with adequate access to all of Licensor's facilities on the Property and at no time will there be any interference with the free movement of Licensor's equipment, personnel, and materials over the Property. Licensor may require Licensee to provide and maintain access roads within the Property, at a minimum usable width of sixteen (16) feet, with commercial driveway aprons and curb depressions capable of supporting a gross load of forty (40) tons on a three-axle vehicle. The minimum width of all roads shall be increased on curves by a distance equal to 400/inside radius of curvature. All curves shall have a radius of not less than 50 feet measured at the inside edge of the usable road surface. Unless otherwise specified in writing by Licensor, Licensee will make no use of the area directly underneath Licensor's towers and will maintain the following minimum clearances:
a. A 50-foot-radius around suspension tower legs, H-Frames and poles and 100-foot radius around dead-end tower legs, H-Frames and poles.
b. A 25-foot-radius around all other poles.
NOTE: Additional clearance may be required by Licensor for structures.
10. Parking: Licensee will not park, store, repair or refuel any motor vehicles or allow parking, storage, repairing or refueling of any motor vehicles on the Property unless specifically approved in a writing executed by Licensor.
11. Weeds, Brush, Rubbish and Debris (Weed Abatement): Licensee will keep the Property clean, free from weeds, brush, rubbish and debris and in a condition satisfactory to Licensor.
12. Flammables, Waste and Nuisances: Unless permitted by Licensor in writing, Licensee will not, or allow others, to place, use, or store any flammable or combustible materials or waste materials on the Property or commit any waste or damage to the Property or allow any to be done.
Licensee will be responsible for the control of and will be liable for any damage or disturbance, caused by any trespasser, dust, odor, flammable or waste materials, noise or other nuisance disturbances.
Licensee will not permit dogs on the Property.
13. Pesticides and Herbicides: Any pesticide or herbicide applications and disposals will be made in accordance with all Federal, State, County and local laws. Licensee will dispose of all pesticides, herbicides and any other toxic substances declared to be either a health or environmental hazard, and all materials contaminated by such substances, including but not limited to, containers, clothing and equipment, in the manner prescribed by law.
14. Hazardous Waste: Licensee will not engage in, or permit any other party to engage in, any activity on the Property that violates federal, state or local laws, rules or regulations pertaining to hazardous, toxic or infectious materials and/or waste. Licensee will indemnify and hold Licensor, its directors, officers, agents and employees, and its successors and assigns, harmless from all claims, loss, damage, actions, causes of action, expenses and/or liability arising from leaks of, spills of, and/or contamination by or from hazardous materials as defined by applicable laws or regulations, which may occur during and after the Agreement term, and are attributable to the actions of, or failure to act by, Licensee or any person claiming under Licensee.
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15. Signs: Licensee must obtain written approval from Licensor prior to the construction or placement of any sign, signboard or other form of outdoor advertising. Licensee shall within three (3) days from the date on which the Licensee learns of the graffiti remove any signs containing graffiti or shall otherwise remove such graffiti from the signs in a manner reasonably acceptable to Licensor.
Notwithstanding any other language in this Article, Licensee shall not advertise on any sign any product, service, or good which is (i) not directly related to Licensee’s use of the Property, (ii) offensive to the public, or (iii) which Licensor, in its reasonable discretion, deems objectionable.
16. Fencing and Existing Fixtures: Licensor disclaims any and all express or implied warranties for any fencing and/or other fixtures affixed to the Property, and further disclaims any liability arising from any disrepair of the same. Licensee may install fencing on the Property with prior written approval from Licensor. Such fencing will include double drive gates, in locations specified by Licensor, a minimum of twenty (20) feet in width, and designed to accommodate separate Licensor and Licensee locks. Licensee will maintain and repair all fencing and other fixtures affixed to the Property, including any grounding of the same as deemed necessary by Licensor, in a manner acceptable to Licensor. Grounding plans must be prepared and stamped by a licensed electrical engineer and submitted to Licensor.
17. Parkways and Landscaping: Licensee will keep parkway and sidewalk areas adjacent to the Property free of weeds, brush, rubbish and debris. Licensee will maintain parkways on the Property and provide landscaping that is compatible with adjoining properties and that is satisfactory to Licensor.
18. Irrigation Equipment: Any irrigation equipment located on the Property prior to the commencement of this Agreement, including but not limited to pipelines, well pumping equipment and other structures, is the property of Licensor and will remain on and be surrendered with the Property upon termination of this Agreement. Should Licensee desire to use the irrigation equipment, Licensee will maintain, operate, repair and replace, if necessary, all irrigation equipment at its own expense.
19. Underground and Above-Ground Tanks: Licensee will not install underground or aboveground storage tanks, as defined by any and all applicable laws or regulations, without Licensor's prior written approval.
20. Underground Facilities: Any underground facilities must be approved by Licensor pursuant to Article 6. Licensee must contact Dig Alert and comply with the applicable processes, policies and/or procedures of Dig Alert, prior to any underground installation. Any underground facilities installed or maintained by Licensee on the Property must have a minimum cover of three feet from the top of the facility and be capable of withstanding a gross load of forty (40) tons on a three-axle vehicle.
Licensee will compact any earth excavated to a compaction of ninety percent (90%). Licensee will relocate its facilities at its own expense so as not to interfere with Licensor's proposed facilities.
21. Utilities: Licensee will pay all charges and assessments for, or in connection with, water, electric current or other utilities which may be furnished to or used on the Property.
22. Taxes, Assessments and Liens: Licensee will pay all taxes and assessments which may be levied upon any crops, personal property, and improvements, including but not limited to, buildings, structures, and fixtures on the Property. Licensee will keep the Property free from all liens, including but not limited to, mechanics liens and encumbrances by use or occupancy by Licensee, or any person claiming under Licensee. If Licensee fails to pay the above-mentioned taxes, assessments or liens when SCE Doc. 142999 Att. Contract No. 9.3565
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due, Licensor may pay the same and charge the amount to the Licensee. All accounts not paid within thirty (30) days of the agreed upon due date will be charged a "late fee" on all amounts outstanding up to the maximum rate allowed by law.
23. Expense: Licensee will perform and pay all obligations of Licensee under this Agreement.
All matters or things required by Licensee will be performed and paid for at the sole cost and expense of Licensee, without obligation by Licensor to make payment or incur cost or expense for any such matters or things.
24. Assignments: This Agreement is personal to Licensee, and Licensee will not assign, transfer or sell this Agreement or any privilege hereunder in whole or in part, and any attempt to do so will be void and confer no right on any third party.
25. Compliance with Law: Licensee will comply with all applicable federal, state, county and local laws, all covenants, conditions and restrictions of record and all applicable ordinances, zoning restrictions, rules, regulations, orders and any requirements of any duly constituted public authorities now or hereafter in any manner affecting the Property or the streets and ways adjacent thereto. Licensee will obtain all permits and other governmental approvals required in connection with Licensee's activities hereunder. Licensee shall hold harmless, defend and indemnify Licensor, its officers, agents and employees, and its successors and assigns, from and against all claims, loss, damage, actions, causes of actions, expense and/or liability arising from or resulting from any violation of this provision.
26. Governing Law: The existence, validity, construction, operation and effect of this Agreement and all of its terms and provisions will be determined in accordance with the laws of the State of California.
27. Indemnification: Licensee shall hold harmless, defend and indemnify Licensor, its officers, agents and employees, and its successors and assigns, from and against all claims, loss, damage, actions, causes of actions, expense and/or liability arising from or growing out of loss or damage to property, including that of Licensor, or injury to or death of persons, including employees of Licensor resulting in any manner whatsoever, directly or indirectly, by reason of this Agreement or the use or occupancy of the Property by Licensee or any person claiming under Licensee.
28. Termination: Licensor or Licensee may terminate this Agreement, at any time, for any reason, upon thirty (30) days notice in writing. Additionally, Licensor may immediately terminate this Agreement pursuant to Article 30. Termination does not release Licensee from any liability or obligation (indemnity or otherwise) which Licensee may have incurred. Upon termination, Licensor may immediately recover from Licensee all amounts due and owing hereunder, plus interest at the maximum rate permitted by law on such amounts until paid, as well as any other amount necessary to compensate Licensor for all the detriment proximately caused by Licensee’s failure to perform its obligations under this Agreement. Licensee's continued presence after termination shall be deemed a trespass. In the event of a termination for any reason other than non-payment of the License fee, Licensor shall refund any previously collected/pre-paid License fees covering the unused portion of the remaining term, to the extent such fees exceed any offset claimed by Licensor under the Agreement
29. Events of Default: In addition to material defaults otherwise described herein, the occurrence of any of the following shall constitute a material default and breach of this Agreement by Licensee:
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(a) Any failure by Licensee to pay the consideration due under Article 3, or to make any other payment required to be made by Licensee when due. (b) The abandonment or vacating of the Property by Licensee. (c) Any attempted assignment or subletting of this Agreement by Licensee in violation of Article 24.
(d) The violation by Licensee of any resolution, ordinance, statute, code, regulation or other rule of any governmental agency for Licensee’s activities under this Agreement. (e) Any attempt to exclude Licensor from the licensed premises. (f) The making by Licensee of any general assignment for the benefit of creditors; the appointment of a receiver to take possession of substantially all of Licensee's assets located on the Property or of Licensee's privileges hereunder where possession is not restored to Licensee within five (5) days; the attachment, execution or other judicial seizure of substantially all of Licensee's assets located on the Property or of Licensee's privileges hereunder, where such seizure is not discharged within five (5) days. (g) Any case, proceeding or other action brought against Licensee seeking any of the relief mentioned in "clause f" of this Article which has not been stayed or dismissed within thirty (30) days after the commencement thereof.
(h) Any claim by Licensee that it has a possessory interest and/or irrevocable license in the Property.
(i) With respect to items not otherwise listed in Article 29.a-h, the failure by Licensee to observe and perform any other provision of this Agreement to be observed or performed by Licensee. Licensor shall provide written notice of such failure and Licensee shall be considered in material default where such failure continues for a total of ten (10) or more consecutive days from the date of the notice. Further, with respect to items not otherwise listed in Article 29.a-h, Licensee shall be considered in material default should Licensee fail to observe or perform any other provision of this Agreement for more than fifteen (15) days during the entire Term of the Agreement in the aggregate, after Licensor provides an initial written notice of such failure. After providing initial notice under this provision, Licensor will not be required to provide any subsequent notice of breach of this Agreement.
30. Remedies: Notwithstanding the notice requirement in Article 28, in the event of any material default by Licensee, then in addition to any other remedies available to Licensor at law or in equity, Licensor shall have the option to immediately terminate this Agreement and all rights of Licensee hereunder by giving written notice of such immediate termination to Licensee.
31. Licensee’s Personal Property Upon Termination or Expiration: In the event that this Agreement is terminated, whether termination is effected pursuant to Article 28 and/or 30, or in the event this Agreement expires pursuant to Article 2, Licensee shall, at Licensee’s sole cost and expense and prior to the earlier of the effective termination date or expiration date, remove all weeds, debris, and SCE Doc. 142999 Att. Contract No. 9.3565
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waste from the Property and peaceably quit, surrender and restore the licensed Property to the condition it was in prior to the Licensee’s use of the Property, in a manner satisfactory to Licensor.
If Licensee fails or refuses to remove any of Licensee’s personal property, building(s), fixture(s) or structure(s) from the Property prior to the earlier of the termination date or expiration date, said personal property, building(s), fixture(s) or structure(s) shall be deemed abandoned by the Licensee, and the Licensor shall have the right, but not the obligation, to remove, destroy, sell or otherwise dispose of them with no further notice to Licensee. Licensor shall not be required to seek and/or obtain judicial relief (including, but not limited to, the filing of an unlawful detainer action), nor shall Licensor be responsible for the value of Licensee’s personal property.
Licensor shall have the right to charge and recover from Licensee all costs and expenses incurred by Licensor related to (i) the removal, disposal or sale of Licensee’s personal property, building(s), fixture(s) or structure(s), (ii), the removal of any waste, weeds, or debris on the Property, (iii) environmental studies and environmental remediation and/or cleanup attributable to Licensee’s use of the Property, and (iv) the restoration of the Property to the condition it was in prior to Licensor’s initial use of the Property.
Licensee agrees to pay such expenses to Licensor upon demand.
32. Limitation of Liability:
IN ORDER FOR LICENSEE TO OBTAIN THE BENEFIT OF THE FEE IDENTIFIED IN ARTICLE 3,
WHICH INCLUDES A LESSER ALLOWANCE FOR RISK FUNDING FOR LICENSOR, LICENSEE AGREES TO LIMIT LICENSOR’S LIABILITY PURSUANT TO THIS AGREEMENT. AS SUCH, IF LICENSEE IS ENTITLED TO ANY RELIEF FOR LICENSOR’S NEGLIGENCE, INCLUDING GROSS NEGLIGENCE, FOR DAMAGE OR DESTRUCTION OF LICENSEE’S PERSONAL PROPERTY,
BUILDING(S), STRUCTURE(S) OR FIXTURE(S) AFTER THE TERMINATION OR EXPIRATION OF
THIS AGREEMENT, THE TOTAL LIABILITY OF LICENSOR SHALL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY LICENSEE TO LICENSOR DURING THE TERM OF THIS AGREEMENT.
FURTHER, IN NO EVENT SHALL LICENSOR BE LIABLE UNDER ANY CIRCUMSTANCES FOR INJURY OR DAMAGE TO LICENSEE’S BUSINESS, IF ANY, INCLUDING, BUT NOT LIMITED TO,
LOSS OF PROFITS, LOSS OF RENTS OR OTHER EVENTS, LOSS OF BUSINESS OPPORTUNITY,
LOSS OF GOODWILL OR LOSS OF USE, IN EACH CASE, HOWEVER OCCURRING, RELATED TO THIS AGREEMENT.
33. Non-Possessory Interest: Licensor retains full possession of the Property and Licensee will not acquire any possessory interest, whether temporary, permanent, or otherwise by reason of this Agreement, or by the exercise of the permission given herein. Licensee will make no claim to any such interest and Licensee will not claim that it has or ever had an irrevocable license in the Property.
34. Waiver: Licensor shall not be deemed to waive any provision of this Agreement orally or by conduct. Any waiver by Licensor of any provision of this Agreement must be in a writing signed by Licensor. No waiver by Licensor of any provision shall be deemed a waiver of any other provision or of any subsequent breach by Licensee of the same or any other provision. Licensor's consent to or approval of any act shall not be deemed to render unnecessary the obtaining of Licensor's consent to or approval of any subsequent act by Licensee. Licensor’s acceptance of payment after providing notice of termination to Licensee shall not constitute a waiver of Licensor’s termination of the Agreement.
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35. Authority: This Agreement is executed subject to General Order No. 69-C of the Public Utilities Commission of the State of California dated and effective July 10, 1985, incorporated by this reference. As set forth in General Order 69-C, this License is made conditional upon the right of the Licensor either on order of the Public Utilities Commission or on Grantor’s own motion to resume the use of that property (including, but not limited to the removal of any obstructions) whenever, in the interest of Licensor’s service to its patrons or consumers, it shall appear necessary or desirable to do so.
Licensee agrees to comply with all federal, state and local laws and regulations. This Agreement should not be construed as a subordination of Licensor’s rights, title and interest in and to its fee ownership, nor should this Agreement be construed as a waiver of any of the provisions contained in said License or a waiver of any costs of relocation of affected Licensor facilities.
36. Electric and Magnetic Fields (“EMF”): There are numerous sources of power frequency electric and magnetic field (“EMF”), including household or building wiring, electrical appliances and electric power transmission and distribution facilities. There have been numerous scientific studies about the potential health effects of EMF. Interest in a potential link between long-term exposures to EMF and certain diseases is based on this scientific research and public concerns.
While some 40 years of research have not established EMF as a health hazard, some health authorities have identified magnetic field exposures as a possible human carcinogen. Many of the questions about diseases have been successfully resolved due to an aggressive international research program. However, potentially important public health questions remain about whether there is a link between EMF exposures in homes or work and some diseases including childhood leukemia and a variety of other adult diseases (e.g. adult cancers and miscarriages). While scientific research is continuing on a wide range of questions relating to exposures at both work and in our communities, a quick resolution of the remaining scientific uncertainties is not expected.
Since Licensee plans to license or otherwise enter Licensor property that is in close proximity to Licensor electric facilities, Licensor wants to share with Licensee and those who may enter the property under this agreement, the information available about EMF. Accordingly, Licensor has attached to this document a brochure that explains some basic facts about EMF and that describes Licensor policy on EMF. Licensor also encourages Licensee to obtain other information as needed to assist in understanding the EMF regarding the planned use of this property.
37. Induced Voltages: Licensee hereby acknowledges that any structures (including, but not limited to, buildings, fences, light poles) that exist or may be constructed on the Property licensed herein, (hereinafter, the “Structures”) in close proximity to one or more high voltage (66 kilovolt or above) electric transmission lines and/or substation facilities may be susceptible to induced voltages, static voltages and/or related electric fault conditions (hereinafter collectively referred to as “Induced Voltages”) unless appropriate grounding or other mitigation measures are incorporated into the Structures. If not properly mitigated, Induced Voltages can cause a variety of safety and/or nuisance conditions including, but not limited to, electric shocks or other injuries to individuals contacting the Structures or other utilities connected to the Structures (including, but not limited to, natural gas lines, water lines or cable television lines), or interference with or damage to sensitive electronic equipment in or around the Structures. Measures to mitigate Induced Voltages, if required, will vary from case to case because of factors such as electric facility configuration and voltage, other utilities involved, or sensitivity of electronic equipment. Licensee will be responsible to determine what Induced Voltages mitigation measures should be undertaken regarding the Structures and to implement such mitigation measures at its sole cost and expense.
SCE Doc. 142999 Att. Contract No. 9.3565
(Formerly Contract No. L2009)
Initial (_______)/(_____/______)
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Licensee agrees for itself and for its contractors, agents, licensees, invitees, and employees, to save harmless and indemnify Licensor, its parent, subsidiaries and affiliated entities and their respective officers and employees against all claims, loss, damage, actions, causes of action, expenses and/or liability arising from or growing out of loss or damage to property, including Licensor’s own personal property, or injury to or death of persons, including employees of Licensor caused by or resulting from or connected to Induced Voltages on or related to the Structures.
38. Notices: All notices required to be given by either party will be made in writing and deposited in the United States mail, first class, postage prepaid, addressed as follows:
To Licensor: Southern California Edison Company
Vegetation & Land Management
Land Management – Southern Region
2 Innovation Way
Pomona, CA 91768
To Licensee: City of Seal Beach
211 Eighth Street
Seal Beach, CA 90740
Business Telephone No. (562) 431-2527
Notice will be deemed effective on the third calendar day after mailing. A party will immediately notify the other party in writing of any address change.
39. Recording: Licensee will not record this Agreement.
40. Complete Agreement: Licensor and Licensee acknowledge that the foregoing provisions and any appendix, addenda and exhibits attached hereto constitute the entire Agreement between the parties. This Agreement may not be modified, amended, contradicted, supplemented or altered in any way by any previous written or oral agreements or any subsequent oral agreements or unsigned written agreements. This Agreement may be modified or amended only by way of a writing executed by both parties.
41. Signature Authority: Each of the persons executing this Agreement warrants and represents that he or she has the full and complete authority to enter into this Agreement on behalf of the Party for which he or she is signing, and to bind said party to the agreements, covenants and terms contained herein.
42. Survival: Any provision of this Agreement that imposes an obligation after termination or expiration of this Agreement shall survive the termination or expiration of this Agreement. (THIS SPACE LEFT INTENTIONALLY BLANK)
SCE Doc. 142999 Att. Contract No. 9.3565
(Formerly Contract No. L2009)
Initial (_______)/(_____/______)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate.
LICENSOR:
SOUTHERN CALIFORNIA EDISON COMPANY
By___________________________________________
LILY DIEP
Real Estate Senior Specialist
Land Management – Southern Region
Vegetation & Land Managment
_____________________
Date
LICENSEE:
CITY OF SEAL BEACH
By___________________________________________
JILL R. INGRAM, City Manager
_____________________
Date
By___________________________________________
City Attorney
_____________________
Date
June 7, 2022
SCE Doc. 142999 Att. Contract No. 9.3565
(Formerly Contract No. L2009)
Initial (_______)/(_____/______)
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APPENDIX
Guidelines for Standard Licensee Improvements
The following criteria are provided to aid in developing a conceptual plot plan to be submitted to Southern California Edison Company herein after referred to as “Licensor” for consideration and approval prior to the start of any construction on “Licensor” property.
Plans should be developed indicating the size and location of all planned improvements. The plan should specify the dimensions of all planned improvements and the distance of all planned improvements from property lines and all adjacent “Licensor” towers, poles, guy wires or other “Licensor” facilities.
The plan must show the locations of all “Licensor” towers and poles, 16-foot wide access roads, main water lines and water shut-off valves, electrical service lines and parking areas. All plans must indicate adjacent streets and include a “north arrow” and the Licensee’s name.
SHADE STRUCTURES
(Definition: A non-flammable frame covered on the top with a material designed to provide shade to aid in growing plants)
1. Shade structures must maintain minimum spacing of 50 feet between shade structure locations, should be placed perpendicular to Licensor’s overhead electrical conductors (wires) unless otherwise approved in writing by Licensor, and should not exceed maximum dimensions of:
a. 100 feet in length
b. 50 feet in width
c. 15 feet in height
2. Shade structures will not be permitted within the following areas reserved for Licensor’s access:
a. Within 2 feet from edge of 16-foot wide access roads b. 50-foot radius around suspension tower legs, H-Frames and poles c. 100-foot radius around dead-end tower legs, H-Frames and poles d. 25-foot radius around anchors/guy wires, poles and wood poles
3. Shade structures must utilize the following design:
a. Temporary/slip joint construction only
b. Non-flammable frame only
c. Adequately grounded by a licensed electrical engineer d. Shade covering must be non-flammable and manufactured with non-hydrocarbon materials.
SCE Doc. 142999 Att. Contract No. 9.3565
(Formerly Contract No. L2009)
Initial (_______)/(_____/______)
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SHADEHOUSES/HOTHOUSES
(Definition: A simple, non-flammable, enclosed structure designed to control temperature without the benefit of heating and/or air conditioning units to aid in propagating and/or growing plants)
1. Shadehouses/hothouses must maintain minimum spacing of 50 feet between shadehouse/hothouse locations, should be placed in perpendicular to Licensor’s overhead electrical conductors (wires) unless otherwise approved in writing by Licensor, and should not exceed maximum dimensions of:
a. 100 feet in length
b. 50 feet in width
c. 15 feet in height
2. Shadehouses/hothouses will not be permitted within the following areas reserved for Licensor’s access:
a. Within 2 feet from edge of 16-foot wide access roads b. 50-foot radius around suspension tower legs, H-Frames and poles c. 100-foot radius around dead-end tower legs, H-Frames and poles d. 25-foot radius around anchors/guy wires, poles and wood poles
3. Shadehouses/hothouses must utilize the following design:
a. Temporary/slip joint construction only
b. Non-flammable frame only
c. Adequately grounded by a licensed electrical engineer d. Covering must be non-flammable and manufactured with non-hydrocarbon materials
GREENHOUSES
(Definition: An enclosed structure designed to control temperature and/or humidity by the use of heating and/or air conditioning units to aid in propagating and/or growing plants) Greenhouses will be considered on a case-by-case basis.
IRRIGATION SYSTEMS / WELLS
1. Maximum diameter of pipe: 3 inches
2. All pipe must be plastic Schedule 40 or better
3. No irrigation system will be permitted within the following areas reserved for Licensor’s access:
a. Within 2 feet from edge of 16-foot wide access roads b. 50 -foot radius around suspension tower legs, H-Frames and poles SCE Doc. 142999 Att. Contract No. 9.3565
(Formerly Contract No. L2009)
Initial (_______)/(_____/______)
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c. 100-foot radius around dead-end tower legs, H-Frames and poles
4. Sprinkler and drip irrigation controllers must be located at the edge of the right of way
5. Suitable identification markers will be required on main controllers and valves
6. Locations of main shut off valve will be provided and shown on a plot plan
7. Underground facilities must have a minimum cover of three feet
8. Earth disturbed must be compacted to ninety percent (90%)
LANDSCAPING
1. No trees will be permitted under the overhead electrical conductors or within 20 feet of the “drip line” of the conductors
2. Trees must have slow to moderate growth, and must be of a variety that grows to a maximum height of only 40 feet and must be maintained by the Licensee at a height not to exceed 15 feet
3. Placement of large rocks (boulders) must be approved in writing by Licensor
4. Any mounds or change of grade must be approved in writing by Licensor
5. No cactus or thorny shrubs will be permitted
6. Retaining walls, planters, etc. may be considered on a case by case basis and must be approved in writing by Licensor
TRAILERS (Definition: Removable / portable office modules are not permitted without Licensor’s prior permission. Trailers must meet the following criteria to be considered: Trailers must meet the following criteria:
a. Must have axles and wheel and be able to be moved
b. Maximum length: 40 feet
c. Maximum height: 15 feet
d. Maximum width: 12 feet
2. No trailers will be permitted within the following areas reserved for Licensor’s access:
a. Within 2 feet from edge of 16-foot wide access roads b. 50-foot radius around suspension tower legs, H-Frames and poles c. 100-foot radius around dead-end tower legs, H-Frames and poles d. 25-foot radius around anchors/guy wires, poles and wood poles e. Under or within 10 feet of the conductor “drip lines” SCE Doc. 142999 Att. Contract No. 9.3565
(Formerly Contract No. L2009)
Initial (_______)/(_____/______)
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3. Sewer or gas lines to trailers must be approved in writing by Licensor
4. Location of all electrical and telephone lines must be approved in writing by Licensor
5. Electrical lines must be installed by a licensed -general contractor.
6. Trailers shall not be used for residential purposes
7. Toxic or flammable materials will not be permitted in trailers
8. Adequately grounded by a licensed -general contractor
PARKING AREAS
Parking areas should not be designed under the overhead electrical conductors or within 10 feet of the “drip lines” without Licensor’s prior written approval. Parking spaces to be identified under the approved site plan. “No Parking” striping may be required in areas where additional clearance is required.
MATERIAL STORAGE
1. If an emergency occurs, Licensee must immediately relocate all materials specified by Licensor to provide Licensor clear access to its facilities.
2. Licensee must provide Licensor with a list of material stored on the right of way
3. No toxic or flammable materials will be permitted
4. No materials shall be stored within the following areas reserved for Licensor’s access:
a. Within 2 feet from edge of 16-foot wide access roads b. 50 - foot radius around suspension tower legs, H-Frames and poles c. 100 - foot radius around dead-end tower legs, H-Frames and poles d. 25 feet from anchors/guy wires, poles and wood poles
5. Storage of materials not to exceed a maximum height of 15 feet
6. No storage of gasoline, diesel or any other type of fuel will be permitted
7. Any fencing around the storage areas must have Licensor’s prior written approval.
SCE Doc. 142999 Att. Contract No. 9.3565
(Formerly Contract No. L2009)
Initial (_______)/(_____/______)
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A D D E N D U M
NON-MOTORIZED BIKING & HIKING TRAILS
A. Licensee must obtain the prior written approval from Licensor for the installation of any nonmotorized biking and hiking trails, including any subsequent modifications. Licensee will maintain the non-motorized biking and hiking trails at all times in a safe condition satisfactory to Licensor.
B. At any time, Licensor may require the removal, modification, or relocation of any portion of the non-motorized biking and hiking trails. Licensee will remove, modify, or relocate same, at its expense, to a location satisfactory to Licensor within sixty (60) days after receiving notice to remove, modify, or relocate from Licensor.
C. At Licensee’s expense, Licensee will post signs at all access points to the Property that read: “Non motorized Biking and Hiking Only. No Other Use Permitted.” D. At Licensee’s expense, Licensee will post signs at all access points to the Property that read: “No Kite Flying, Model Airplanes, unmanned aerial vehicles (UAV’s or Drones), or Metallic Balloons Permitted, High Voltage Wires Overhead.”
E. At Licensee’s expense, Licensee will post signs at all access points of the Property that read:
“Dogs are required to be on leash at all times.”
F. Licensee must close the non-motorized biking and hiking trails at any time Licensor deems it necessary for the safety of the general public or for maintenance of Licensor’s facilities. If it is necessary to close the non-motorized biking and hiking trails for more than three days, Licensee will notify the general public of the closure by posting at all access points to the Property.
G. At Licensee’s expense, Licensee will install removable post-type barriers designed to accommodate Licensor’s locks to prevent unauthorized vehicular use or parking on the Property, including but not limited to, motorcycles, off-road vehicles, and “all-terrain” vehicles.
H. maintenance, and use of the non-motorized biking and hiking trails, including but not limited to, water flowing onto lands of others. Licensee will perform any work deemed necessary by Licensor to correct any damage to the Property of the land of others.
I. Use of the Property is a joint use with Licensor and other tenants of Licensor. Licensor may use the biking and hiking trails for access to its facilities. 22 EVIDENCE OF COVERAGE March 04, 2022 6:28 PM
COVERAGE PROVIDER MEMBER
Seal Beach
211 8th Street
Seal Beach, CA 90740-6305
562-431-2527 ext 134
California Joint Powers Insurance Authority
8081 Moody Street
La Palma CA 90623
www.cjpia.org
Contact Name: Jim Thyden, Insurance Programs Manager
Phone: (562) 467-8784 Tim Kelsey
[email protected]
562-431-2527 ext 134
THIS IS TO CERTIFY THAT THE MEMBER LISTED ABOVE PARTICIPATES IN THE CALIFORNIA JOINT POWERS INSURANCE AUTHORITY’S SELFINSURANCE AND COMMERCIAL INSURANCE PROGRAM WITH THE COVERAGES AND LIMITS LISTED BELOW, SUBJECT TO ALL THE TERMS, DEFINITIONS, EXCLUSIONS, CONDITIONS, AND RESPONSIBILITIES OF THE MEMORANDA OF COVERAGE FOR EACH LINE OF COVERAGE.
COVERAGES
THE COVERAGES LISTED BELOW HAVE BEEN ISSUED TO THE MEMBER NAMED ABOVE FOR THE COVERAGE PERIOD INDICATED,
NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
EVIDENCE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE MEMORANDA DESCRIBED HERIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH MEMORANDA. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
TYPE OF COVERAGE MEMORANDUM
COVERAGE
EFFECTIVE DATE
(MM/DD/YY)
LIMITS
LIABILITY AGGREGATE $1,000,000
X OCCURRENCE PRODUCTS-COMP/OP AGG $ N/A
X PERSONAL INJURY PERSONAL & ADV INJURY $1,000,000
X ERROR & OMISSIONS EACH OCCURRENCE $1,000,000
X EMPLOYMENT PRACTICES
M O C L P
7/1/21 – 7/1/22
FIRE DAMAGE (Any one fire) $ N/A
MED EXP (Any one person) $ N/A
AUTOMOBILE LIABILITY
X ANY AUTOS
COMBINED SINGLE LIMIT $1,000,000
ALL OWNED AUTOS BODILY INJURY
(Per person) $ N/A
SCHEDULED AUTOS
HIRED AUTOS
BODILY INJURY
(Per accident) $ N/A
NON-OWNED AUTOS
PROPERTY DAMAGE $ N/A
WORKER’S COMPENSATION AND
EMPLOYER’S LIABILITY X WC STATUTORY LIMITS $ N/A
M O C W C 7/1/21 – 7/1/22
X EMPLOYER’S LIABILITY $1,000,000
ADDITIONAL REMARKS
CANCELLATION
The California JPIA will endeavor to provide at least thirty (30) days notice of any cancellation of coverage or reduction in coverage limits to the Evidence Holder.
EVIDENCE HOLDER
2 Innovation Way
Pomona, CA 91768
Cheri McElroy
[email protected]
909-274-1867 AUTHORIZED REPRESENTATIVE, Jim Thyden
California Joint Powers Insurance Authority is a joint powers authority pursuant to Article 1 (commencing with Section 6500) Chapter 5 of Division 7 of Title 1 of the California Government Code.
EVIDENCE OF COVERAGE March 04, 2022 6:28 PM
ADDITIONAL COVERAGE NOTES
License Agreement No. 9.3565 License for use of Bike Path Use of the bike path through Edison Property
CC LIST
Agenda Item M
AGENDA STAFF REPORT
DATE: June 13, 2022
TO: Honorable Mayor and City Council
THRU: Jill R. Ingram, City Manager
FROM: Dana Engstrom, Acting City Clerk
SUBJECT: Calling and Consolidation of Election – November 8, 2022 ________________________________________________________________ SUMMARY OF REQUEST:
That the City Council adopt:
1. Ordinance 1696 calling and giving notice of the holding of a General Municipal Election to be held on Tuesday, November 8, 2022; and,
2. Resolution 7302 requesting the Board of Supervisors of the County of Orange to consolidate the City’s General Municipal Election with the Statewide General Election to be held on Tuesday, November 8, 2022 for the purpose of the election of three Members of the City Council (District 1, District 3, and District 5) for the full four year term of the office; and,
3. Resolution 7303 adopting regulations for Candidates’ Statements submitted to the voters; and,
4. Resolution 7304 providing for the conduct of a Municipal Run-off Election in the event no candidate receives 50% plus 1 votes to be held on Tuesday, January 31, 2023.
BACKGROUND AND ANALYSIS:
Under the provisions of the City Charter a General Municipal Election shall be held for the election of Municipal Officers every even-numbered year. The General Municipal Election in 2022 is scheduled to be held on November 8, 2022. The relevant City Charter provisions are as follows:
SECTION 501. General Municipal Elections. General Municipal Elections shall be held on the first (1st) Tuesday after the first (1st) Monday in November in evennumbered years commencing with the year 2008.
SECTION 506. Holding Elections. The City Council shall, by ordinance, order the holding of all elections. Such ordinance shall conform in all respects to the general law of the State of California governing the conduct of municipal elections, now or hereafter in force, except as in this Charter or by ordinance otherwise provided.
SECTION 507. Law Governing Elections. Except as otherwise provided or required by this Charter or Ordinance, the provisions of the general law relating to the qualifications of electors, the manner of voting, the duties of election officers, the canvassing of returns, and all particulars in respect to the management of elections, so far as they may be applicable, shall govern all municipal elections of the City of Seal Beach.
Under Elections Code Section 10403, one of the provisions of general law adopted by Charter Section 507, the General Municipal Election may be consolidated with the Statewide election being conducted by the County of Orange on the same date.
To consolidate, the City Council must adopt a resolution requesting that the Orange County Board of Supervisors approve the consolidation and designate the County to canvass the returns of the election.
The nomination period begins Monday, July 18, 2022 and ends Friday, August 12, 2022. If any incumbent fails to file, the nomination period for that office only will be extended for an additional five (5) days. No other nomination period would be extended.
ENVIRONMENTAL IMPACT:
There is no environmental impact related to this item.
LEGAL ANALYSIS:
The City Attorney reviewed and approved as to form the ordinance and the resolutions.
FINANCIAL IMPACT:
The estimated cost to consolidate the City’s General Municipal Election with the County of Orange Statewide General Election on the November 8, 2022 ballot is approximately $58,000 and will be included in the FY 2022-23 Budget. The cost of a run-off election is estimated at $30,000-$40,000 per Council district. If a runoff election is necessary, a budget adjustment will be brought to Council at that time.
STRATEGIC PLAN:
This item is not applicable to the Strategic Plan.
MEASURE BB:
This item is not applicable to Measure BB, the Seal Beach Neighborhood and Essential Services Protection Measure.
RECOMMENDATION:
That the City Council adopt:
1. Ordinance 1696 calling and giving notice of the holding of a General Municipal Election to be held on Tuesday, November 8, 2022; and,
2. Resolution 7302 requesting the Board of Supervisors of the County of Orange to consolidate the City’s General Municipal Election with the Statewide General Election to be held on Tuesday, November 8, 2022 for the purposed of the election of three Members of the City Council (District 1, District 3, and District 5) for the full four year term of the office; and,
3. Resolution 7303 adopting regulations for Candidate’s Statements submitted to the voters; and,
4. Resolution 7304 providing for the conduct of a Municipal Run-off Election in the event no candidate receives 50% plus 1 votes to be held on Tuesday, January 31, 2023.
SUBMITTED BY: NOTED AND APPROVED:
Dana Engstrom Jill R. Ingram
Dana Engstrom, Acting City Clerk Jill R. Ingram, City Manager ATTACHMENTS:
A. Ordinance 1696 – Calling Election
B. Resolution 7302 – Consolidate with County
C. Resolution 7303 – Candidate’s Statement
D. Resolution 7304 – Run-off Election
ORDINANCE 1696
AN ORDINANCE OF THE CITY OF SEAL BEACH, CALIFORNIA
CALLING FOR AND GIVING NOTICE OF THE HOLDING OF A
GENERAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY,
NOVEMBER 8, 2022, FOR THE ELECTION OF CERTAIN
OFFICERS AS REQUIRED BY THE PROVISIONS OF THE CITY
CHARTER
THE SEAL BEACH CITY COUNCIL DOES ORDAIN AS FOLLOWS:
SECTION 1. Pursuant to §506 of the City Charter, the City Council hereby calls and orders to be held in the City of Seal Beach, California, on Tuesday, November 8, 2022, a General Municipal Election for the purpose of electing City Councilmembers for the full term of four years in Councilmanic District One, Councilmanic District Three, and Councilmanic District Five.
SECTION 2. That the ballots to be used at the election shall be in form and content as required by law.
SECTION 3. The City Clerk is authorized, instructed, and directed to coordinate with the County of Orange Registrar of Voters Office to procure and furnish any and all official ballots, notices, printed matter and all supplies, equipment and paraphernalia that may be necessary in order to properly and lawfully conduct the election.
SECTION 4. That the polls for the election shall be open at 7:00 a.m. of the day of the election and shall remain open continuously from that time until 8:00 p.m. of the same day when the polls shall be closed, pursuant to Elections Code §10242, except as provided in Elections Code §14401 of the Elections Code of the State of California and during such other hours as are determined necessary by the Orange County Registrar of Voters.
SECTION 5. That in all particulars not recited in this Ordinance, the election shall be held and conducted as provided by the City Charter and other applicable law for holding municipal elections.
SECTION 6. That notice of the time and place of holding the election is given and the City Clerk is authorized, instructed and directed to give further or additional notice of the election, in time, form and manner as required by law.
SECTION 7. Pursuant to City Charter §509 and in accordance with Elections Code §15651(a) in the event no candidate for an office receives a majority (50% plus 1) of all the votes cast for such office, there shall be a Municipal Run-off Election and the two candidates receiving the highest number of votes for such office at the General Municipal Election held on November 8, 2022 shall be the only candidates for such office printed upon the ballots at the Municipal Run-off Election as certified by the County of Orange Registrar-Recorder/County Clerk.
Pursuant to City Charter §502 and in accordance with the timeframe outlined in Elections Code §15651(b) that such Municipal Run-off Election for the election of officers shall be held on the last Tuesday in January in each odd-numbered year (January 31, 2023).
SECTION 8. The City Council authorizes the City Clerk to administer such election, and to contract for necessary services, and all reasonable and actual election expenses shall be paid by the City upon presentation of a properly submitted bill.
SECTION 9. The City Clerk shall certify to the passage and adoption of this Ordinance, shall cause the same to be published at least three times in the official newspaper of the City of Seal Beach ten days prior to the date of the election, and entered into the book of ordinances.
SECTION 10. Pursuant to City Charter §416(a) this Ordinance shall take effect and be in force immediately upon its adoption.
PASSED, APPROVED and ADOPTED by the City Council of the City of Seal Beach, California, at a meeting held on the 13th day of June, 2022.
Joe Kalmick, Mayor
ATTEST:
Dana Engstrom, Acting City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Dana Engstrom, Acting City Clerk of the City of Seal Beach, California, do hereby certify that the foregoing ordinance was passed, approved and adopted by the City Council of the City of Seal Beach at a meeting thereof held on the 13th day of June, 2022 by the following vote:
AYES: Council Members: _____________________________________ NOES: Council Members: _____________________________________ ABSENT: Council Members: _____________________________________ ABSTAIN: Council Members: _____________________________________ Dana Engstrom, Acting City Clerk
RESOLUTION 7302
A RESOLUTION OF THE SEAL BEACH CITY COUNCIL
REQUESTING THE BOARD OF SUPERVISORS OF THE COUNTY
OF ORANGE TO CONSOLIDATE THE GENERAL MUNICIPAL
ELECTION TO BE HELD ON TUESDAY, NOVEMBER 8, 2022
WITH THE STATEWIDE GENERAL ELECTION TO BE HELD ON
THAT DATE PURSUANT TO §10403 OF THE ELECTIONS CODE
WHEREAS, the City Council of the City of Seal Beach has called a General Municipal Election to be held on Tuesday, November 8, 2022, for the purpose of the election of three Members of the City Council (District 1, District 3, and District 5) for the full four year term of office; and,
WHEREAS, it is desirable that the General Municipal Election be consolidated with the Statewide General Election to be held on the same date and that within the City precincts, vote centers, and election officers of the three elections be the same, and that the county election department of the County of Orange canvass the returns of the General Municipal Election and that the election be held in all respects as if there were only one election. The election will be held and conducted in accordance with the provisions of law regulating the statewide election.
NOW, THEREFORE, the Seal Beach City Council does resolve, declare, determine, and order as follows:
SECTION 1. That pursuant to the requirements of §10403 of the Elections Code, the Board of Supervisors of the County of Orange is hereby requested to consent and agree to the consolidation of a General Municipal Election with the Statewide General Election on Tuesday, November 8, 2022, for the purpose of the election of three Members of the City Council (District 1, District 3, and District 5) for the full four year term of office.
SECTION 2. The county election department of the County of Orange is authorized to canvass the returns of the General Municipal Election. The election shall be held in all respects as if there were only one election, and only one form of ballot shall be used. The election will be held and conducted in accordance with the provisions of law regulating the statewide election including, without limitation, Elections Code Section 10418.
SECTION 3. That the Board of Supervisors is requested to direct the County Election Department to take any and all steps necessary for the holding of the consolidated election.
SECTION 4. The City of Seal Beach recognizes that additional costs will be incurred by the County by reason of this consolidation and agrees to reimburse the County for actual costs upon presentation of an invoice.
SECTION 5. The City Clerk is hereby directed to file a certified copy of this resolution with the Board of Supervisors and the County Election Department of the County of Orange.
SECTION 6. The City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions.
PASSED, APPROVED and ADOPTED by the Seal Beach City Council at a regular meeting held on the 13th day of June, 2022 by the following vote:
AYES: Council Members: _____________________________________ NOES: Council Members: _____________________________________ ABSENT: Council Members: _____________________________________ ABSTAIN: Council Members: _____________________________________ Joe Kalmick, Mayor
ATTEST:
________
Dana Engstrom, Acting City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Dana Engstrom, Acting City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution 7302 on file in the office of the City Clerk, passed, approved, and adopted by the City Council at a regular meeting held on the 13th day of June, 2022.
________
Dana Engstrom, Acting City Clerk
RESOLUTION 7303
A RESOLUTION OF THE SEAL BEACH CITY COUNCIL
ADOPTING REGULATIONS FOR CANDIDATES FOR ELECTIVE
OFFICE PERTAINING TO CANDIDATE’S STATEMENTS
SUBMITTED TO THE VOTERS AT A GENERAL MUNICIPAL
ELECTION TO BE HELD ON TUESDAY, NOVEMBER 8, 2022
WHEREAS, §13307 of the Elections Code of the State of California provides that the governing body of any local agency adopt regulations pertaining to materials prepared by any candidate for a municipal election, including costs of the candidates statement.
THE SEAL BEACH CITY COUNCIL DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. GENERAL PROVISIONS. That pursuant to §13307 of the Elections Code of the State of California, each candidate for elective office to be voted for at the Election to be held in the City of Seal Beach on November 8, 2022 may prepare a candidate’s statement on an appropriate form provided by the City Clerk. The statement may include the name, age, and occupation of the candidate and a brief description of 200 words of the candidate’s education and qualifications expressed by the candidate himself or herself. The statement shall not include the party affiliation of the candidate, nor membership or activity in partisan political organizations. The statement shall type written and filed in the office of the City Clerk at the time the candidate’s nomination papers are filed. The candidate’s statement may be withdrawn, but not changed, during the period for filing nomination papers and until 5:00 p.m. of the next working day after the close of the nomination period. The Nomination Filing period: July 18 through August 12, 2022.
SECTION 2: FOREIGN LANGUAGE POLICY. Pursuant to the Federal Voting Rights Act, candidate’s statement will be translated into all languages required by the County of Orange. The County is required to translate candidate’s statements into Spanish, Chinese, Korean, Vietnamese and other languages. The County will mail separate voter information guides and candidate’s statements in Spanish, Chinese, Japanese, Korean, Tagalog, Vietnamese and other languages to those voters who are on the county voter file as having requested a voter information guide in a particular language. The County will make the voter information guides and candidate’s statements in the required languages available at all vote centers, on the County’s website, and in the Election Official’s office.
SECTION 3: PAYMENT.
A. The candidate shall be required to pay for the cost of printing the candidate’s statement in English in the main voter pamphlet.
B. The candidate shall be required to pay for the cost of translating the candidate’s statement into any foreign language that is not required as specified in Section 2 above, pursuant to Federal and\or State law, but is requested as an option by the candidate.
C. The City Clerk shall provide the candidate with the total cost of printing, handling, translating, and mailing the candidate’s statements filed pursuant to this section, including costs incurred as a result of complying with the Voting Rights Act of 1965 (as amended). The cost varies by election, district and by each city participating in the election. Each candidate that requests to file a candidate’s statement shall be required to pay the fixed non-refundable cost at the time of filing.
The General Municipal Election (November 8, 2022) is consolidated with the County of Orange and the Registrar of Voters office has determined the fixed nonrefundable cost for each city participating in the election.
D. Additionally, according to the City’s comprehensive fee schedule there is a candidate’s filing fee of $25.00 (non-refundable).
SECTION 4. MISCELLANEOUS.
A. Candidate’s statement will comply with the formatting and submission guidelines provided by the City Clerk from the Orange County Registrar of Voters.
B. The City Clerk shall comply with all recommendations and standards set forth by the California Secretary of State regarding occupational designations and other matters relating to elections.
C. No candidate will be permitted to include additional materials in the voters information guide.
SECTION 5. That the City Clerk shall provide each candidate or the candidate’s representative a copy of this Resolution at the time nominating petitions are issued.
SECTION 6. That all previous resolutions establishing City Council policy on payment for candidate’s statements are repealed.
SECTION 7. That this Resolution shall apply only to the General Municipal Election to be held on November 8, 2022 and the Municipal Run-off Election to be held on January 31, 2023, if necessary, and shall then expire.
SECTION 8. That the City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original resolutions.
PASSED, APPROVED and ADOPTED by the Seal Beach City Council at a regular meeting held on the 13th day of June, 2022 by the following vote:
AYES: Council Members: _____________________________________ NOES: Council Members: _____________________________________ ABSENT: Council Members: _____________________________________ ABSTAIN: Council Members: _____________________________________ Joe Kalmick, Mayor
ATTEST:
______
Dana Engstrom, Acting City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Dana Engstrom, Acting City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution 7303 on file in the office of the City Clerk, passed, approved, and adopted by the City Council at a regular meeting held on the 13th day of June, 2022.
______
Dana Engstrom, Acting City Clerk
RESOLUTION 7304
A RESOLUTION OF THE SEAL BEACH CITY COUNCIL
PROVIDING FOR THE CONDUCT OF AN ALL MAIL BALLOT
MUNICIPAL RUN-OFF ELECTION IN THE EVENT NO
CANDIDATE RECEIVES A MAJORITY (50% PLUS 1) OF ALL THE
VOTES CAST AT THE GENERAL MUNICIPAL ELECTION HELD
ON NOVEMBER 8, 2022
THE SEAL BEACH CITY COUNCIL HEREBY RESOLVES AND ORDERS AS FOLLOWS:
SECTION 1. Pursuant to City Charter §509, if no candidate for an office receives a majority (50% plus 1) of all the votes cast for such office, there shall be a Municipal Run-off Election and the two candidates receiving the highest number of votes for such office at the General Municipal Election held on November 8, 2022 shall be the only candidates for such office printed upon the ballots at the Municipal Run-off Election.
SECTION 2. Pursuant to City Charter §502, such Municipal Run-off Election shall be held on Tuesday, January 31, 2023.
SECTION 3. Pursuant to Seal Beach Municipal Code §2.05.020, the City Council hereby authorizes the Run-off Election be conducted through an all mailed ballot election.
SECTION 4. The City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original resolutions.
PASSED, APPROVED and ADOPTED by the Seal Beach City Council at a regular meeting held on the 13th day of June, 2022 by the following vote:
AYES: Council Members: ____________________________________ NOES: Council Members: ____________________________________ ABSENT: Council Members: ____________________________________ ABSTAIN: Council Members: ____________________________________ ____ _
Joe Kalmick, Mayor
ATTEST:
_____
Dana Engstrom, Acting City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Dana Engstrom, Acting City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution 7304 on file in the office of the City Clerk, passed, approved, and adopted by the City Council at a regular meeting held on the 13th day of June 2022.
______
Dana Engstrom, Acting City Clerk
Agenda Item N
AGENDA STAFF REPORT
DATE: June 13, 2022
TO: Honorable Mayor and City Council
THRU: Jill R. Ingram, City Manager
FROM: Alexa Smittle, Community Development Director
SUBJECT: Orange County Housing Finance Trust
___________________________________________________________ _____ SUMMARY OF REQUEST:
That the City Council adopt Resolution 7305:
1. Approving membership in the Orange County Housing Finance Trust; and,
2. Authorizing the Mayor to execute the Joint Powers Agreement.
BACKGROUND AND ANALYSIS:
Homelessness continues to be one of the greatest challenges facing our region.
A 2017 study performed by United Way Orange County and University of California, Irvine found that the annual financial impact of homelessness on municipalities, hospitals, and homeless service providers in Orange County was about $300 million dollars in 2014-15 (see Attachment B). Though the biennial 2022 homeless point-in-time count did show a notable decrease of almost 23 percent in the number of unsheltered persons county-wide, the total number remains at about 3,000 individuals, which is not insignificant. Thus, while progress has been made to increase the number of emergency shelter beds and improve the coordination of resources, the problem continues due in part to a lack of permanent affordable housing options.
In June 2018, the Orange County Board of Supervisors approved a Housing Funding Strategy in response to the ongoing homelessness crisis and shortage of affordable housing in Orange County. The Housing Funding Strategy set a target for the development of 5,400 affordable housing units over 7 years, with the goal of having half be designated as supportive housing units, offering wrap around services to house formerly homeless individuals and families. The County estimated the capital funding requirements for the 2,700 supportive housing units at $930 million. Given the potential funding sources known at the time, a capital gap of $353 million was identified, along with another $350 million funding gap in operating and rental subsidies (per the Orange County Community Resources:
Housing Funding Strategy report, Attachment C).
One of the identified solutions to address the funding gap was the creation of a trust that could accumulate and leverage financial resources for affordable housing projects. To this end, the Association of California Cities, Orange County (“ACC-OC”) worked with state legislators in 2018 to pass Assembly Bill 448; and as a result, the Orange County Housing Finance Trust (OCHFT) was formed in 2019 as a Joint Powers Authority (“JPA”) between the County of Orange and cities throughout the county. The JPA Agreement (Attachment D) sets forth the powers, generally to fund affordable housing and supportive housing projects that the member cities and County would share.
The OCHFT Board of Directors includes nine total members: four are representatives from the County of Orange, and five are representatives from member cities. Currently, the County Appointed Representatives include Supervisors Bartlett and Chaffee, Treasurer/Tax Collector Shari Friedenrich, and Sheriff Don Barnes. Per the JPA By-Laws, cities are represented on the Board by the largest city in each of the County’s three Service Planning Areas (“SPAs"), and two city representatives are selected by the City Selection Committee, one from a city with a population over 60,000 residents and one from a city with a population under 60,000 residents. Currently, the City Representatives include:
Anaheim Councilmember Stephen Faessel, as the largest member city in the Northern SPA; Dana Point Councilmember Jamey Federico, as the city with a population of less than 60,000 residents; Fullerton Mayor Fred Jung, as the as the city with a population of more than 60,000 residents; Mission Viejo Councilmember Ed Sachs, as the largest member city in the Southern SPA; and Santa Ana Councilmember David Penaloza, as the largest member city in the Central SPA.
The OCHFT is intended to provide a greater opportunity for Orange County cities to attract and secure funding for the preservation and production of affordable housing. The State and Federal governments have provided additional funding for affordable housing in the last two years, and are continuing to make additional resources available for eligible efforts and projects. The OCHFT applies for and receives funding from other agencies (e.g. the State) and then awards funding to individual projects in Orange County based on certain criteria. Recent examples of funding sources include the Local Housing Trust Fund Program and Regional Early Action Planning Grant Program. In addition, the OCHFT has received direct allocations of funding through the State budget process and may receive additional direct funding in the State and Federal budgets in the future.
The City’s membership in the OCHFT would support the regional effort to attract new funding into Orange County to provide affordable housing developers access to gap funding for projects. Broader membership throughout the county allows the OCHFT to be more competitive for Federal or State funds. This funding resource increases the likelihood that affordable housing projects proposed within Orange County will be financially viable. Adopting the proposed City Council Resolution and executing the Joint Powers Agreement would enable the City to join the OCHFT and support this regional, collaborative approach to developing affordable housing county-wide, and allow developers to access this funding if an eligible affordable housing project were to be built in the city.
Per the terms of the JPA, the OCHFT does not build, own, or manage projects.
OCHFT cannot require projects be in specific cities, require member cities to take an allocation of supportive housing units, or require that cities provide a local funding match. The OCHFT Board of Directors determines whether a funding application meets its criteria. The local jurisdiction maintains land use control and processes the entitlement consistent with its municipal code requirements.
The County of Orange became a member of the OCHFT on March 12, 2019. As of the writing of this staff report, there are twenty-three member cities of the OCHFT: Aliso Viejo, Anaheim, Buena Park, Costa Mesa, Dana Point, Fountain Valley, Fullerton, Garden Grove, Huntington Beach, La Habra, Laguna Beach, Laguna Hills, Laguna Niguel, Lake Forest, Mission Viejo, Newport Beach, Orange, Placentia, San Juan Capistrano, Santa Ana, Stanton, Tustin, and Westminster. If the attached Resolution (Attachment 1) is adopted by the City Council, Seal Beach would be become a member of the OCHFT.
Since its formation, the OCHFT has secured $36 million in funding and awarded over $20 million to 13 affordable housing projects totaling over 900 affordable and supportive housing units. The OCHFT is currently working with local legislators on a unified effort to secure additional State and Federal funding.
Members of the JPA do not need to contribute to capital costs or project funding, but do agree to support administrative costs of the OCHFT. Cost allocations are determined based upon the size of the member jurisdiction. Seal Beach would fall in the “small city” category, which in a previous year would have cost $4,700.
However, OCHFT has recently been able to support administrative costs with grants, and no administrative contribution will be required upon joining, or next fiscal year (Attachment E shows the administrative budget). Going forward, if administrative costs cannot be funded entirely through grants, they will be shared among the member jurisdictions. Administrative costs are based on a number of factors, including activities of OCHFT, grant funding awarded, funding carried over from a prior year, and the number of member jurisdictions that will share the cost. OCHFT staff generally believes administrative costs for Seal Beach are unlikely to exceed $7,000 in the near future.
ENVIRONMENTAL IMPACT:
The proposed action is exempt from the California Environmental Quality Act (“CEQA”) because it is not a project pursuant to CEQA Guidelines Section 15378(b)(4) because it is a fiscal activity which does not involve any commitment to a specific project which may result in a potentially significant impact on the environment.
FINANCIAL IMPACT:
There is no financial impact at this time, though there may be in the future if administrative costs cannot be funded entirely through grants.
STRATEGIC PLAN:
This item is not applicable to the Strategic Plan.
MEASURE BB:
This item is not applicable to Measure BB, the Seal Beach Neighborhood and Essential Services Protection Measure.
RECOMMENDATION:
That the City Council adopt Resolution 7305:
1. Approving membership in the Orange County Housing Finance Trust; and,
2. Authorizing the Mayor to execute the Joint Powers Agreement.
SUBMITTED BY: NOTED AND APPROVED:
Alexa Smittle Jill R. Ingram
Alexa Smittle Jill R. Ingram, City Manager
Director of Community Development
ATTACHMENTS:
A. Resolution 7305
B. Executive Summary Cost Study of Homelessness 2017
C. OCCR Housing Funding Strategy
D. Joint Powers Agreement
E. OCHFT Administrative Budget
F. OCHFT Joint Powers Agreement Signature Page Form
RESOLUTION 7305
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SEAL BEACH, CALIFORNIA, ENTERING INTO THE JOINT
EXERCISE OF POWERS AGREEMENT TO BECOME A
MEMBER OF THE ORANGE COUNTY HOUSING FINANCE
TRUST
WHEREAS, homelessness in the Orange County region has increased over time; and WHEREAS, homelessness locally is a result of various causes that can include a lack of affordable and supportive housing units, the high cost of workforce housing, a shortage of jobs that result in wages that pay for local rents, mental illness and substance use, the high cost of land and housing development, and more; and WHEREAS, as homelessness increases, it causes crises that can be humanitarian and financial and has community safety impacts, as Orange County residents and others without adequate shelter reside in and on communities' public facilities, including streets, parks, sidewalks, transit centers, riverbeds and storm channels, restrooms, libraries, and more; and
WHEREAS, the costs of homelessness on our community resources and facilities countywide were estimated in a 2017 study done by United Way of Orange County and the University of California, Irvine, to be in the range of $300 million per year (based on 2014-15 dollars), and likely growing; and
WHEREAS, families, children, the aged, our veterans, and persons with mental illness and other disabilities are all subject to homelessness depending on their individual circumstances, and all are worthy of our community's respect and care; and WHEREAS, the provision of adequate housing for persons formerly homeless can include a range of housing types, from emergency and bridge shelters to transitional housing to rapid rehousing to supportive housing to affordable housing; and WHEREAS, in Orange County, there appears to be a shortfall of beds and units in each housing category, making the goal of ending homelessness in our region extremely difficult to attain without adding more housing units; and WHEREAS, the concept of adding to the supply of supportive housing - supportive housing meaning where a person who may have formerly been homeless is able to secure and maintain his or her housing provided that services are provided to the individual to help them stay successfully in housing - is deemed to be beneficial to solving especially the needs of the chronically homeless; and , WHEREAS, in 2018, Orange County leaders worked to develop and secure legislation that created a joint powers mechanism that would share the power of securing funding for various types of housing that can address our homelessness crisis, with a focus on developing more supportive housing units; and
WHEREAS, this legislation (AB 448) allowed for the creation of the Orange County Housing Finance Trust (Trust), a Trust established to secure both public and private dollars and to ensure that Orange County as a region attains its share of State resources approved by California residents and the California Legislature to address housing and homelessness via the provision of more housing units, especially supportive housing; and WHEREAS, to join the Trust, cities in Orange County and the County of Orange may execute a Joint Powers Agreement that makes them a member of the Trust and describes the roles and responsibilities of the Trust, as well as its Governance structure; and WHEREAS, the City of Seal Beach desires to join the Orange County Housing Trust by authorizing the Mayor of Seal Beach to execute the Joint Powers Agreement that is attached hereto as an exhibit.
NOW, THEREFORE, the City Council of the City of Seal Beach, California, does resolve, declare, determine and order as follows:
Section 1: The City Council of the City of Seal Beach hereby authorizes the City's membership in the Orange County Housing Finance Trust, as described by the attached Joint Powers Agreement (Exhibit 1).
Section 2: The City Council of the City of Seal Beach hereby encourages the Trust Governing Board to use every effort to minimize and offset the Trust's administrative costs, including by using contracted staff, partnerships with other like-minded entities for an office site or other administration functions, and by actively seeking bond or other nonGeneral Fund sources to offset these administrative costs.
Section 3: The City Council of the City of Seal Beach authorizes Mayor Joseph Kalmick to execute the Joint Powers Agreement on the City's behalf.
PASSED, APPROVED AND ADOPTED by the Seal Beach City Council at a regular meeting held on the 13th day of June, 2022 by the following vote:
AYES: Council Members
NOES: Council Members
ABSENT: Council Members
ABSTAIN: Council Members
Joe Kalmick, Mayor
ATTEST:
Dana Engstrom, Acting City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Dana Engstrom, Acting City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution 7305 on file in the office of the City Clerk, passed, approved, and adopted by the City Council at a regular meeting held on the 13th day of June, 2022.
Dana Engstrom, Acting City Clerk
5 | Executive Summary
Homelessness in Orange County: The Costs to Our Community f RETURN TO CONTENTS
EXECUTIVE SUMMARY
Purpose
The current wave of homelessness is a pressing
problem sparing few communities across the
United States. Since the issue came to the
forefront in the early 1980s, estimates of the
number of homeless have waxed and waned,
but the crisis of American citizens experiencing
homelessness continues to persist. Orange
County and its 34 municipalities have not
been spared this crisis. According to the 2015
Orange County Point in Time Count report,
nearly 4,500 people experienced homelessness
(2,200 of whom were unsheltered) on any
given night, and 15,291 people were expected
to be homeless over the course of the year.
This equates to one in 200 Orange County
residents experiencing at least one night of
homelessness during 2015. In addition to the
devastating and traumatizing physical and
psychological costs of homelessness to those
individuals and families who experience it,
homelessness imposes considerable economic
costs on the communities in which it exists.
There have been a number of cost studies
across other major localities in the U.S., and in
California in particular, but no such cost study
has been completed for Orange County.
The purpose of this project has been to
conduct a countywide cost study, with two
primary objectives:
• First, to estimate the economic expenditures
on homelessness that have accrued to the
county, its 34 municipalities, and its nongovernmental service agencies, including hospitals and non-profits providing services
to this population;
• Second, to assess the extent to which the
costs of serving the homeless vary across the
spectrum of those living on the streets and
in shelters versus those living in alternative
forms of housing.
The Study
This is a collaborative study among Orange
County United Way, Jamboree, and the
University of California, Irvine, with the support
of the Association of California Cities – Orange
County (ACC-OC), 2-1-1 Orange County (211OC),
and the Hospital Association of Southern
California. In addition, an Advisory Committee
representing a cross section of Orange
County experts and practitioners from various
institutions and organizations served to guide
our design and process. The study was also
conducted to leverage the work of the United
Way’s FACE 2024 strategic plan, the county’s
10 Year Plan to End Homelessness, and the
county’s new Office of Care Coordination.
The study is based on data collected from
five main sources: the County of Orange,
the municipalities within the county, Orange
County hospitals (via the Hospital Association
of Southern California and Cal Optima),
a sample of non-governmental agencies
addressing homelessness and individuals
experiencing homelessness themselves. The
data was gathered through questionnaires
sent to municipalities, hospitals and service
agencies as well as structured, in-person
survey interviews conducted with a sample
of 252 homeless individuals throughout the
county. Given the breadth and volume of data
assembled, this is clearly one of the most
6 | Executive Summary
Homelessness in Orange County: The Costs to Our Community f RETURN TO CONTENTS
comprehensive studies of the public costs of
homelessness in the United States.
Key Findings
Demographic and Biographic Characteristics
of the Homeless Population
Results from our sample of homeless
individuals indicate that Orange County’s
homeless population is defined largely by the
following characteristics:
• They are mainly long-term OC residents, with
68% of the 252 homeless surveyed having
lived in the county for 10 years or longer
• They are predominately US-born
individuals (90%)
• A significant share are middle-aged (52% are
age 50 or older), non-Hispanic White (47%),
male (57%) and live alone (67%)
Key Finding: The vast majority of Orange County’s
homeless, whether male or female, are U.S.
citizens and long-term Orange County residents
of over 10 years, rather than individuals who have
recently chosen to come to Orange County.
The major factors precipitating homelessness in
our sample (in order of frequency of mention) are:
• Securing or retaining jobs with sustainable
wages (40%)
• Finding or retaining affordable housing,
including evictions and foreclosures (36%)
• Family issues, which include domestic violence,
family dysfunction, relationship dissolution and
death of a family member (28%)
• Alcohol and/or drugs (22%)
• Mental health (17%)
• Physical health (13%)
• Release from jail/prison (7%)
Key Finding: Homelessness is caused primarily
by lack of sufficient income or job loss combined
with high costs of housing in Orange County.
Other factors, like family dysfunction, health, and
substance abuse, increase one’s vulnerability to
homelessness in such a context.
This observation is further substantiated by
the following finding: The median monthly
income of the homeless in our sample, from
all possible sources, is $860. Income varies
greatly by housing status, ranging from a
median of $500 for those living on the street
to a median of $1,958 for homeless individuals
and families placed into a rapid re-housing
program (who are often supporting dependent
children). Nonetheless, across all housing
categories, these income levels put housing
rental out of reach given the average cost of
rent for a single bedroom apartment in OC of
$1,700 to $1,800+ in 2015.
The Cost of Homelessness
We estimate that approximately $299 million
was spent to address homelessness in Orange
County by governmental and non-governmental
entities in a 12-month period encompassing
2014/2015.
• Municipalities account for the largest share
of this total (~$120 million), followed by
• Hospitals (~$77 million),
• The County (~$62 million)
• Non-governmental housing agencies (~$35
million)
• Other non-governmental agencies servicing the
homeless (~$5 million with incomplete data).
Key Finding: Orange County’s city governments
and public services bear the brunt of the costs
associated with homelessness in Orange County.
7 | Executive Summary
Homelessness in Orange County: The Costs to Our Community f RETURN TO CONTENTS
Across the major service clusters (health care,
housing, and criminal justice), we estimate that
approximately $121 million was spent providing
health care to the homeless in a 12-month
period encompassing 2014/2015. Counties,
municipalities and non-governmental agencies
spent approximately $106 million on all types
of housing for the homeless, and an estimated
$23 million was spent on criminal justice
contacts (police/jail/prison).
Key Finding: Costs are highest in Orange County’s
health care service cluster, which is consistent
with other cost studies across the country.
Based on our interviews, we estimate that the
average annual cost per person for all services
is approximately $45,000. Heavy service
consumers, particularly of health and medical
services, drive the average cost up greatly;
so much so, that if the most costly 10% are
dropped from the analysis, the mean annual
cost per person drops to approximately $10,000.
Key Finding: The costs of homelessness are driven
upwards by the heaviest service users among
those who are chronically street homeless.1
Costs by Housing Categories (Street and
Emergency Sheltered Homeless versus those
housed in Bridge, Rapid Re-Housing,
or Permanent Supportive Housing—PSH)
• Our interviews with those experiencing
homelessness indicate that use of social and
health services and criminal justice contacts
are lower among those who are housed
compared to those living on the streets. Those
in permanent supportive housing reported
78% fewer ambulance transports in the last
month, and 100% fewer arrests, compared to
those who are chronically homeless living on
the street or in emergency shelters.
• As a result of decreases in service utilization
and criminal justice contacts, the estimated
average annual cost of services is 40% lower
for the chronically homeless in permanent
supportive housing ($51,587) in comparison
to the chronically homeless living on the
streets and in emergency shelters ($85,631),
even taking into consideration the program
costs of permanent supportive housing.
Similarly, the average annual cost for those
housed in rapid re-housing ($9,175) and
bridge housing ($22,686) is 75% and 38%
lower, respectively, than the annual cost for
the non-chronically homeless on the street
and in emergency shelters ($36,419) net of
the program costs of housing.
• When looking at health service utilization
alone, the estimated average annual cost
among those homeless who are housed
($26,158) is half the annual cost incurred by
those on the street or in emergency shelters
($51,855), with the disparity even greater
between those in permanent supportive
housing ($43,184) and the chronically street
homeless ($98,199).
Key Finding: Whatever the service or housing
category, the costs of homelessness declines
when the homeless are housed. This holds for both
the non-chronically and the chronically homeless.
8 | Executive Summary
Homelessness in Orange County: The Costs to Our Community f RETURN TO CONTENTS
Cost Savings of Housing Chronically
Street Homeless in Permanent Supportive
Housing (PSH)
• The estimated average annual cost of services
per capita for permanent supportive housing
clients is 50% lower than for the chronically
street homeless ($51,587 versus $100,759).
• Taking into consideration the average cost
of services per capita, we estimate a cost
savings of approximately $42 million per year
if all Orange County chronically homeless were
placed into permanent supportive housing.
• The potential cost savings of housing the
homeless are even more significant for the
chronically street homeless who are the
heaviest service users, and in particular for
those in the upper decile of costs. We find
that 10% of the chronically street homeless
incur annual costs higher than $439,787 per
person, whereas the most costly 10% of those
in permanent supportive housing incur annual
costs in excess of only $55,332.
Key Finding: The cost savings data on housing
the homeless in general, and particularly the
chronically street homeless, show a consistent
and compelling pattern: costs are markedly lower
among the homeless who are housed, and this is
especially true for the chronically homeless.
Housing Funding
Strategy
Orange County, California
June 12, 2018
Contents
Executive Summary ......................................................................................................................... 1 Regional Efforts in Orange County .................................................................................................. 2 Affordable Housing Overview ......................................................................................................... 2 Homelessness in Orange County .......................................................................................... 5 Supportive Housing .............................................................................................................. 5 Needs, Gaps and Special Populations .................................................................................. 6 Chronically Homeless Need .................................................................................................. 6 Veterans ............................................................................................................................... 7 Supportive Housing Unit Projections ................................................................................... 7 Affordable/Supportive Housing Resources .................................................................................. 10 Capital Funding Sources ..................................................................................................... 10 Operating Funding Sources: ............................................................................................... 14 Services Funding Sources and Partnerships ....................................................................... 16 Potential Future Funding Sources ...................................................................................... 18 Financial Modeling ........................................................................................................................ 21 Financial Model – Capital Resources ............................................................................................ 22 Mitigating the Financing Gap ............................................................................................. 24 Financing Modeling – Operating/Rental Subsidies ............................................................ 25 Total Gap: Capital and Rental/Operating Funding ............................................................. 26 Opportunities ................................................................................................................................ 27 Challenges ..................................................................................................................................... 27 Recommendations & Next Steps .................................................................................................. 28 Appendices
Definitions
References
| Page 1
Executive Summary
Homelessness is currently one of the most urgent issues facing Orange County. With a Point in Time (PIT) count total of 4,792 individuals experiencing homelessness across the County on a single night in January 2017, it is clear that the impacts of homelessness are profoundly felt in the region. This Housing Funding Strategy (HF Strategy) summarizes the need for supportive housing (including the broad 2,700 supportive housing unit goal established by homeless planning groups in Orange County), the need for affordable housing options for people experiencing homelessness (estimated at an additional 2,700 units or subsidies)1 the costs of creating, operating and providing services in supportive housing, as well as a range of opportunities, challenges and strategies to maximize the creation of supportive housing in Orange County. The HF Strategy outlines:
Regional Efforts in Orange County
Affordable Housing Overview
Needs Gaps and Special Populations
Affordable/Supportive Housing Resources
Financial Modeling
Opportunities
Challenges
Recommendations & Next Steps
The HF Strategy summarizes the resources currently available, as well as those that are anticipated, with recommendations for Orange County to maximize competitiveness in successfully funding projects. The urgent crisis of homelessness requires swift action to create pathways out of homelessness for the most vulnerable in our community and this HF Strategy outlines key next steps to maximize housing options for those who need it most.
1 The estimate of an additional need for 2,700 additional affordable housing options is based on the 2017 Point in Time count numbers and the 2017 Annual Homeless Assessment Report (AHAR) | Page 2
Regional Efforts in Orange County
The Orange County Board of Supervisors has dedicated significant effort to effectively addressing homelessness in the county. These efforts have been across the region. Through direction from the Board, Orange County Community Resources (OCCR) provides funding, resources and loans for the development of supportive housing throughout the county. OCCR also oversees the Housing Choice Vouchers throughout the 31 cities and the unincorporated areas. Three other cities in the region have their own Housing Authorities and administer their own Housing Choice Voucher resources: Anaheim, Santa Ana, and Garden Grove. Other County agencies also provide housing resources to address homelessness, such as the Health Care Agency through Mental Health Services Act (MHSA) Housing funds, Whole Person Care, and the Social Service Agency through Housing Support Services Funds, Bringing Families Home and Housing and Disability Advocacy Programs.
Affordable Housing Overview
What is Affordable Housing?
Affordable Housing refers to rental or owner‐occupied housing that costs no more than 30 percent of a household's monthly income.
Who needs Affordable Housing?
Households are considered “cost‐burdened” when their housing costs more than 30% of their income. Cost‐burdened households may not be able to afford other necessities such as food, clothing, transportation and medical care (United States Department of Housing and Urban Development, n.d.). Affordable Housing could benefit these households.
In communities throughout the United States, a family with one full‐time worker earning minimum wage cannot afford the local fair‐market rent for a two‐bedroom apartment.
Additionally, there are about 12 Million households in the US that pay more than 50% of their annual incomes for housing. Notably, the typical renter in Orange County pays the nation’s largest portion of their household income to the landlord.
What is Area Median Income (AMI) or Median Family Income (MFI)? Area Median Income (AMI) or Median Family Income (MFI) generally refers to the median family income of a geographic area estimated by the United States Department of Housing and Urban Development (HUD) for the HUD Housing Choice Voucher (HCV) Program in communities across the country. To calculate HCV Income Limits, HUD first creates MFI estimates. Five‐year survey data was used in the 2017 MFI estimates. The survey data is then adjusted by HUD to account for anticipated income growth using the Consumer Price Index (CPI) inflation forecast published by the US Congressional Budget Office. Very Low‐Income Limits are calculated using HUD’s determination of MFI. Then, the Very Low‐Income Limit category is used to calculate income limits for the other income categories that are described in detail below (Seeger, 2017).
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What are the MFI/AMI Income Limit Categories?
The income limits for Orange County are defined in the table below, which are defined as follows:
Extremely Low‐Income: Extremely Low‐Income limits are calculated as 60 percent of the very low‐income limits and compared to the most recent update to the federal Poverty Guidelines. If the poverty guidelines are higher, those values are chosen. The value is capped at the Very Low‐Income level (Seeger, 2017). Very Low‐Income: The maximum Very Low‐Income limit typically reflects 50 percent of median family income (MFI). HUD's MFI figure generally equals two times HUD's 4‐ person very low‐income limit, except when HUD applies adjustments (Seeger, 2017). Low‐Income: In general, maximum income for low‐income households reflects 80 percent of the MFI level. Most low‐income limits represent the higher level of: (1) 80 percent of MFI or, (2) 80 percent of State non‐metropolitan median family income (Seeger, 2017).
Moderate‐Income Levels: The State Housing and Community Development (HCD) Department is responsible for establishing California’s moderate‐income limit levels.
After calculating the 4‐person area median income (AMI) level as previously described, HCD sets the maximum moderate‐income limit to equal 120 percent of the county’s AMI (Seeger, 2017).
What are the MFI/AMI Income Limits for Orange County?
The 2017 Area Median Income (AMI) for Orange County is $88,000. The subsequent income categories and household sizes are in Table A below. It is important to note that a typical supportive housing tenant is an adult receiving a monthly Social Security Income payment of $910.72/month (or $10,928/year). This income is approximately 18% of Area Median Income for Orange County. In addition, many supportive housing tenants may have zero income, or close to zero income and supportive housing projects need to have plans in place to house people with such limited financial resources, including rent payment expectations as well as “move‐in” resources.
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Table A: Income Limits for Orange County
(United States Department of Housing and Urban Development, 2017) (Seeger, 2017) Affordable Housing Strategic Plan and Accomplishments to Date In 2015, Orange County launched its Affordable Housing Strategic Plan along with an Affordable Housing Implementation Plan. The purpose of the Affordable Housing Strategic Plan was to outline key priorities and strategies that would maximize and prioritize affordable and supportive housing production. Recommendations from this strategic plan included:
1. Aligning available housing resources within a single NOFA/RFP;
2. Leveraging housing resources over several funding cycles in order to maximize project competitiveness when seeking sources of funding;
3. Prioritizing rental subsidy commitments for projects receiving capital investments;
4. Prioritizing investment of County resources within the County jurisdiction and regional initiatives;
5. Targeting resources to create housing opportunities that have the greatest impact on specific priority populations
The Plan specified that the recommendations listed above were designed for the next five years in order to create the most housing opportunities. These strategies have opened doors and enabled people experiencing homelessness to leave the streets behind by providing critical supports to important and innovative projects across the County. In addition, the Board of Supervisors has committed $25 Million in Mental Health Services Act (MHSA) Housing funds towards these efforts. Commitments from Orange County (OCCR and the Health Care Agency) have included a range of capital, operating, and services funding commitments to numerous supportive and affordable housing projects, including 688 affordable and supportive housing units that are leased up or in various stages of development throughout the region. Within this total of 574 units, 341 are supportive housing units (which includes 131 MHSA supportive housing units). In addition, there are 1,600 to 1,800 potential units that developers have indicated could be developed given adequate resources, but not yet entitled. | Page 5
Housing Needs and Goals
Homelessness in Orange County
According to the 2017 Point in Time (PIT) Count, there are 4,792 people experiencing homelessness in Orange County. The unsheltered homeless population (2,584) accounts for 54% of the total homeless persons, whereas the remaining 46% (2,208) were sheltered in Emergency Shelter and Transitional Housing programs. This high number of unsheltered households consists mostly of individuals (households without children), which account for 99% of the unsheltered population (2017 PIT).
Supportive Housing
Supportive housing is more than just affordable housing. Many homeless households have higher needs than other cost‐burdened households that need affordable housing. People who need services in order to remain stably housed need supportive housing because it includes tenancy support services and is designed to be affordable for individuals who receive Social Security Income or who may have no income.
Supportive housing combines affordable housing with services that help people who face the most complex challenges to live with stability, autonomy and dignity. Supportive housing is affordable housing where supportive services providers actively engage tenants in flexible, voluntary and comprehensive services and work with property and housing management to support tenant stability and ensure that the housing remains a positive community asset for the long‐term. Supportive housing is an innovative and proven solution to some of communities' toughest problems. Supportive housing is the scaffolding for the delivery of more effective and responsive public services.
Supportive housing is for people who are highly vulnerable, like those experiencing chronic homelessness. Someone experiencing chronic homelessness has lived on the streets, in his or her car, in a shelter or somewhere not meant to be lived in for an extended period of time and has a disability. Supportive housing is also an effective intervention for those who cycle through institutions, such as emergency rooms, psychiatric facilities, jails, and hospitals, for example.
Supportive housing is for people who without housing, are not able to secure the treatment and supportive services available to them. Because supportive housing provides the stability that we hope everyone can have, somewhere where they can call home, it allows people to start to access non‐emergency services like primary health care, mental health care, public benefits and others.
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There are an estimated 2,700 supportive housing units currently available in Orange County according to the 2017 Housing Inventory Chart. These units are predominantly scattered site supportive housing using rent subsidies such as Housing and Urban Development‐Veterans Affairs Support Housing (HUD‐VASH) vouchers and HUD SHP rental subsidies in the private market, along with some newly constructed or rehabilitated supportive housing units.
Needs, Gaps and Special Populations
The County has identified the need for approximately 2,700 new supportive housing units based on information from the 2017 Point in Time Count and the Annual Homeless Assessment Report (AHAR). Using this previously identified unit goal as a guide, and analyzing the demographics of the 2017 Point in Time Count and the AHAR data, CSH estimates a need for 500 family supportive housing units and 2,200 supportive housing units for individuals.
Chronically Homeless Need:
CSH estimates that 1,000 of the 2,700 supportive housing units will be needed for individuals and families experiencing chronic homelessness,2 and 1,700 will be needed for other households experiencing homelessness who also have significant service needs (2017 PIT, 2017 AHAR). Within the 1,700 non‐chronically homeless supportive housing units, 1,200 units are projected for individuals and 500 are projected for families.
The following chart breaks down the estimated unit needs by population type:
Chart A Supportive Housing Unit Goal:
2 There is an estimated need for 10 supportive housing units for chronically homeless families. 1,000
1,200
500
2,700 Supportive Housing Unit Goal
Estimated Need by Population
Chronically homeless Homeless (individual) Homeless (family) | Page 7
Veterans
For the past eight years, the homeless veteran population has decreased dramatically from 1,282 in 2009, to 856 in 2011, to about 450 in 2013 and 2015, and to 405 in 2017 (Orange County PIT). Eighty eight percent of veterans experiencing homelessness were unsheltered in 2017. This is a significant regional success that can be attributed to effective strategies that have been implemented over the last decade, primarily providing access to both affordable and supportive housing.
Chart B Veteran Homelessness in Orange County – Point in Time Count Numbers:
It is important to note that veterans are approximately 4% of the overall population in Orange County, yet veterans make up 10% of the homeless population locally. More detailed information from the 2017 AHAR shows that about 29% of adults in supportive housing identified as being veterans. According to the 2017 Point in Time (PIT) count, about 2% of those in shelter and transitional housing were veterans, and about 14% of unsheltered people were veterans.
Supportive Housing Unit Projections
There is an estimated need to create 2,700 supportive housing units to provide housing and services for people experiencing homelessness in Orange County who have disabling health conditions and support services needs. In addition, local data (2017 PIT; 2017 AHAR) showed a need for access to affordable housing for an additional 2,700 people experiencing homelessness in the region.
This report focuses on estimated unit goals and recommends that local planning take into account the need to create 2,700 supportive housing units. It is important to note that there is also a need for access to affordable housing options, such as developed affordable housing, 1282
856
446 447 405
0 200
400
600
800
1000
1200
1400
2009 2011 2013 2015 2017
Veteran Homelessness ‐ Orange County (PIT)
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Section 8 housing vouchers, and rapid rehousing resources for the additional 2,700 people experiencing homelessness who are in need of access to affordable housing. It is recommended that careful planning continues throughout the region to also meet those additional housing needs.
The table below projects the unit breakdown to create 2,700 units of supportive housing over the next seven years to meet the housing needs of people with disabling health conditions who are experiencing homelessness in Orange County.
Table B: Supportive Housing Unit Goal (by Population and Unit Type):
Supportive Housing Goal by Population
Studio/1
Bedroom
2 or 3
Bedroom Total
Homeless Individual 1200 1,200
Chronically Homeless Individual (+ 10 family units) 990 10 1,000 Homeless Family 500 500
Total 2,190 510 2,700
Housing Models and Development Approaches
Supportive housing can be created using a variety of models and approaches. This HF Strategy anticipates that the supportive housing developed across Orange County will include the following models and approaches:
Single Site Supportive Housing
This is generally a multi‐family supportive housing development that exclusively provides housing along with support services to formerly homeless families or individuals.
Integrated Housing
This model generally refers to multi‐family housing developments that have a dedicated percentage of subsidized units that provide housing to formerly homeless families or individuals along with support services. The other units in the development are affordable housing for low‐income individuals and families.
Development Approaches:
Hotel/Motel Conversion, Acquisition/Rehabilitation and New Construction A variety of approaches to development are required in order to achieve the ambitious unit goal of creating 2,700 units of supportive housing. These development approaches include Hotel/Motel Conversion, Acquisition/Rehabilitation, as well as New Construction.
Village Model
An innovative approach to providing housing for people experiencing homelessness is to create a “village” of homes, offering housing and a community of support for people leaving the streets behind.
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The table below outlines the number of units that could be produced through a development approach, followed by an estimate of the total development costs to create the 2,700 units of developed supportive housing.
Table C: Supportive Housing Unit Goal (by Year Placed in Service) Total Supportive Housing Units - Projected Need across Orange County Region 2019 2020 2021 2022 2023 2024 2025 TOTAL
Supportive Housing - Single
Adults: Acquisition/Rehabilitation
190 200 200 200 200 200 200 1,390
Supportive Housing - Single
Adults: New Construction
150 150 100 100 100 100 100 800
Supportive Housing - Families:
Acquisition/Rehabilitation
50 50 45 35 35 35 250
Supportive Housing - Families:
New Construction
60 50 45 35 35 35 260
Total 450 450 390 370 370 370 300 2,700
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Affordable/Supportive Housing Resources
It is important to understand the full range of potential resources that could be accessed in achieving Orange County’s supportive housing unit goals. Supportive housing development requires three types of resources for successful projects:
Capital Funding – to build the housing development.
Operating Funding – to ensure the housing development can operate; pays the difference between what a supportive housing tenant can pay and what it costs to actually operate the unit.
Services Funding – to provide support services to tenants to ensure their stability in housing.
Capital Funding Sources
The following sources are critical resources to the development of affordable and supportive housing:
4% and 9% Low Income Housing Tax Credits (LIHTC)
Conventional Financing / Loans
Federal Home Loan Bank Affordable Housing Program (AHP) HOME Investment Partnerships Program (HOME)
Community Development Block Grant (CDBG)
Local Continuum of Care Supportive Housing Program (SHP) resources (Homeless Emergency Assistance and Rapid Transition to Housing ‐ HEARTH)
Locally controlled Housing Funds:
o Housing Successor Agency (Redevelopment)
o Housing Authorities
o Mental Health Services Act Housing Program/Special Needs Housing Program (CalHFA) – includes capital and operating funds
State Funds:
o Veteran’s Housing and Homeless Prevention Program (VHHP) o Multifamily Housing Program (MHP)
o Affordable Housing and Sustainable Communities Program (AHSC) Veterans Housing and Homeless Prevention (VHHP) Program (Proposition 41) Passed by the voters in June 2014, the VHHP program allows the state to sell $600 Million in bonds to fund housing for low‐income and homeless veterans. Three NOFAs have been issued under the VHHP Program and the fourth NOFA was released in May 2018.
Source of Funding: Initially Proposition 12 in 2008, the Veteran’s Bond Act of 2008, authorizing $900 Million in general obligation bonds, intended to help veterans purchase single family homes, farms, and mobile homes through the California Department of Veterans Affairs | Page 11
(CalVet) Home Loan Program. In 2013, AB 639 (Chapter 727, Statutes of 2013, Pérez) restructured the Veteran’s Bond Act of 2008 authorizing $600 Million in existing bond authority to fund multifamily housing for veterans. With the approval of Proposition 41 by California voters on June 3, 2014, the Department of Housing and Community Development (HCD), in collaboration with the California Housing Finance Agency (CalHFA) and CalVet, is administering the veteran multifamily housing program pursuant to AB 639 (Chapter 727, Statutes of 2013, Pérez).
Housing Successor Agency Funds
Redevelopment Successor Agencies across Orange County are seeking to maximize the number of new affordable housing units that can be produced with the Successor Housing Entity’s remaining housing assets by leveraging their funds with other funding sources.
Source of Funding: The 2011 Budget Act dissolved California Redevelopment Agencies, which were funded through property tax revenues. The Housing Successor Agencies administer the funds that remain after the dissolution of redevelopment to meet required payments on existing bonds and other obligations.
Cap and Trade ‐ Affordable Housing and Sustainable Communities Program Beginning in Fiscal Year 2014‐15, California has implemented a state‐wide Cap and Trade program that sets aside a long‐term revenue stream for affordable housing, focusing on the reduction of greenhouse gases in the state, including transit‐oriented development. Twenty percent of Cap and Trade revenues are dedicated to the Affordable Housing and Sustainable Communities Program, including planning, active transportation, transit and other supportive infrastructure, estimated at $200‐$300 Million/year in statewide funding.
Source of Funding: the Affordable Housing and Sustainable Communities Program is funded by the California Climate Investments Program (CCIP, formerly the Greenhouse Gas Reduction Fund or GGRF), an account established to receive Cap‐and‐Trade auction proceeds. The program was initial authorized by Assembly Bill 32 (Nunez), the Global Warming Solutions Act of 2006. The Cap‐and‐Trade program sets a cap or limit on total GHG emissions that declines over time. Large emitters of greenhouse gases can buy, sell, and trade carbon allowances during quarterly auctions. A variety of legislation governs the implementation of this program.
National Housing Trust Fund (NHTF)
Since its creation in 2008 under the Housing and Economic Recovery Act, the NHTF funds the building, preservation, and rehabilitation of rental homes that are affordable for extremely and very low income households. The NHTF is a permanent program with a dedicated source of funding that is not be subject to the annual appropriations process. It prioritizes rental housing, with a minimum of 80% of the funds being used for the production, preservation, rehabilitation, or operation of rental housing and up to 10% for home ownership activities. Finally, 75% of the funds for rental housing must benefit extremely low income households (and all funds must benefit very low income households). The NHTF program is administered by State HCD and | Page 12
priority is be given to special needs populations. NHTF can be paired with Community Development Block Grant (CDBG) and HOME funds as set forth in the State HCD Annual and Consolidated Plans.
Source of Funding: The National Housing Trust Fund was established under Title I of the Housing and Economic Recovery Act of 2008, Section 1131 and the federal department of Housing and Urban Development (HUD) allocates funds annually to states.
HOME Investment Partnerships Program (HOME)
Orange County and surrounding cities receive varying amounts of federal HOME Investment Partnerships Program (HOME) funds, which are restricted for use within their jurisdictions. In most cities, these funds have not been targeted toward special needs or supportive housing in particular. However, they must be allocated to affordable housing development at the low to moderate income levels.
Source of Funding: HOME funds are based on a federal formula grant to states and localities from the federal Housing and Urban Development (HUD) department and the use of the funds is governed through the HOME program regulations as well as locally developed Consolidated Plans and Annual Action Plan Projects. The HOME program was authorized under the 1990 Cranston‐Gonzalez National Affordable Housing Act.
Community Development Block Grant Program (CDBG)
The Community Development Block Grant (CDBG) program enables local governments to undertake a wide range of activities intended to create suitable living environments, provide decent affordable housing and create economic opportunities, primarily for persons of low and moderate income. Orange County receives CDBG funds, along with a variety of other jurisdictions, including:
Anaheim
Buena Park
Costa Mesa
Fountain Valley
Fullerton
Garden Grove
Huntington Beach
Irvine
La Habra
Laguna Niguel
Lake Forest
Mission Viejo
Newport Beach
Orange
Rancho Santa
Margarita
San Clemente
Santa Ana
Tustin
Westminster
Metro Cities receiving
CDBG funds:
Aliso Viejo
Placentia
Yorba Linda
Collaborative and coordinated planning with these jurisdictions is critical as the region plans to use Year 2 SB2 funding, which will be received by the CDBG entities (discussed in further detail below).
Source of Funding: The CDBG Entitlement Program provides annual grants on a formula basis to entitled cities and counties. The program is authorized under Title 1 of the Housing and Community Development Act of 1974, Public Law 93‐383, as amended; 42 U.S.C.‐5301 et seq. | Page 13
Special Needs Housing Program
The MHSA Housing Program concluded in May 2016. At the request of a number of counties, the California Housing Finance Agency (CalHFA) created the “Local Government Special Needs Housing Program” (SNHP) which builds upon the successes of the MHSA Housing Program for the development of new MHSA housing. Orange County has allocated a total of $25 Million in funds to the SNHP for additional permanent supportive housing units. These funds are available to supportive housing developers in Orange County and there is a high degree of interest from the development community.
Source of Funding: the Special Needs Housing Program (SNHP) is funded with Mental Health Services Act (MHSA) funding that local counties receive. Counties can choose to assign their MHSA funds to the SNHP administered by the California Housing Finance Agency (CalHFA). The Mental Health Services Act was created through Proposition 63 in 2004 and is funded through a 1% income tax on personal income in excess of $1 Million.
State Housing and Community Development Multi‐Family Housing Program There are some monies left in this state program and a NOFA is anticipated to be released in 2018 to fully commit these bond funds.
Summary of Funding Sources and Commitments to Orange County:
The table below outlines various funding sources that are administered by the State of California and the amount that is available/dedicated to affordable/supportive housing:
Table D: Summary of Funds Available and Committed in Orange County:
State Program Funds Available Notes
Affordable Housing &
Sustainable
Communities
(Cap and Trade)
Most recent $255 Million NOFA
closed January 2018 with awards
expected in June 2018.
Approx. $420 Million awarded to 53 projects
across the state in two NOFA rounds
Orange County projects awarded funding:
$3.9 Million for Depot at Santiago by
C&C Development in Santa Ana
$12 Million for Santa Ana Arts Collective
by Meta Housing in Santa Ana
National Housing
Trust Fund
$10 Million statewide NOFA expected in 2018.
Veterans Housing and
Homeless Prevention
(VHHP) Program
~$325 Million currently available
statewide. Most current NOFA
released May, 2018.
To date, 3 NOFAs issued with $238
Million awarded statewide, creating
1970 units.
One Orange County project funded: $1.79
Million for Potter’s Lane (15 units)
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Operating Funding Sources
Affordable housing capital funding sources create projects that are affordable to people earning 30 to 60% of Area Median Income (AMI). As discussed above, individuals experiencing homelessness often have an income that is 18% AMI or less. To cover the difference between what a tenant can pay and the cost of operating the unit, an operating subsidy or rental subsidy is needed to ensure that the project is affordable and financially feasible over the long term.
Housing Choice Vouchers
The federal Housing Choice Voucher Program provides rental subsidies that are administered by four local housing authorities:
Orange County Housing Authority
Santa Ana Housing Authority
Anaheim Housing Authority
Garden Grove Housing Authority
Tenant based housing assistance is provided to participants who find their own housing through a local landlord. The tenant pays the landlord 30% of their income toward rent and utilities directly to the landlord. The housing authority pays the remaining cost up to what is determined to be a “reasonable rent” for the market. Housing authorities have the discretion to “project‐base” a portion of their housing choice vouchers by committing them to a specific housing project through a competitive allocation. When capital funders know a project will receive a rental subsidy, this can be used as a powerful development finance tool in the creation of new supportive housing in Orange County, as seen in MHSA Housing developments throughout the region.
Housing and Urban Development ‐ Veterans Affairs Supportive Housing (HUD‐ VASH)
The federal Housing and Urban Development (HUD) and Veterans Affairs (VA) have collaborated to provide the HUD‐VASH Supportive Housing Program which provides permanent housing subsidies and case management services to homeless veterans with disabling health conditions. The VA Medical Center in Long Beach California screens and selects veterans for participation in HUD‐VASH in Orange County and the rental subsidies are administered by the Orange County Housing Authority. The VA and the Housing Authorities who receive HUD‐VASH vouchers have the option to Project Base HUD‐VASH, providing predictable operating revenue for housing developers, and the federal government is encouraging communities that receive HUD‐VASH to focus resources on ending veterans and chronic homelessness. | Page 15
HUD 811 Project Rental Assistance
The HUD Section 811 Project Rental Assistance Demonstration Program provides rental assistance to affordable housing developments serving persons with disabilities. The program serves non‐elderly individuals with disabilities who have resided in a long‐term health care facility for at least 90 days and desire to return to community living, or are at risk of institutionalization because of loss of housing. The Project Rental Assistance funding is managed by CalHFA in partnership with other state agencies. Two notices of funding available (NOFA) rounds have been complete (one state‐wide and one specific to Los Angeles). Limited funds are still available under the statewide NOFA for PRA on an “over the counter” basis.
SNHP Capitalized Operating Subsidy Reserves
The Special Needs Housing Program also provides the possibility of funding a Capitalized Operating Subsidy Reserve (COSR) for projects that demonstrate that they cannot secure an operating subsidy from another source.
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Services Funding Sources and Partnerships
As described above, supportive housing requires capital financing to develop a supportive housing project and operating subsidies to ensure the housing is affordable to people with extremely low or no income. In addition, the supportive services provided in supportive housing are what distinguish supportive housing from other types of affordable housing. The support services should be designed to help ensure tenant stability in housing and maximize the ability to live independently.
This Strategy does not outline the financial costs of services in the 2,700 units of supportive housing and it is incredibly challenging to identify and secure funding for the range of services needed to meet resident needs. In some cases, agencies that have existing revenue streams are able to partner with supportive housing owners to provide services directly to tenants. In these instances both partners must pay careful attention to the agreements and relationships to ensure ongoing commitments to the tenants. The following programs can provide service partnerships in supportive housing with careful attention to the agreements and relationships that enable services for supportive housing tenants:
Mental Health Services Act (MHSA) Services
MHSA services provided in supportive housing are designed for low‐income adults, or older adults with serious mental illness, and children with severe emotional disorders and their families who, at the time of assessment for housing services, meet the criteria for MHSA services in their county of residence and are homeless or at risk for homelessness. The Orange County Community Supports and Services (CSS) plan is publicly posted and provides details on MHSA funded services across the county.
Federally Qualified Health Centers (FQHCs)
FQHCs are Medicaid‐funded, neighborhood‐based health service providers that serve underserved persons in their targeted geographic areas and must provide more than primary health care services, including behavioral health, nutritional counseling and some case management. The mission and service approach of FQHCs are similar to those of supportive housing providers. FQHCs in Orange County provide many of the additional services that high‐ need populations require, and there are many examples of successfully pairing FQHC resources with housing to promote tenant wellness and stability, and to create pathways out of homelessness.
Whole Person Care (WPC)
The County of Orange was approved through the State of California’s Department of Health Care Services (DHCS) on October 24, 2016 for a five‐year project to implement the Whole Person Care (WPC) pilot program. WPC is the coordination of physical, behavioral health, and social services in a patient‐centered approach with the goals of improved health and well‐ being through more efficient and effective use of resources for Medi‐Cal beneficiaries struggling with homelessness. WPC promotes increased communication between hospital | Page 17
emergency rooms, CalOptima, community clinics, OC Health Care Agency (HCA) Behavioral Health Services and Public Health Services as well as recuperative care providers to improve access and navigation of services for the homeless population. WPC will provide important health and behavioral health supports to individuals and families in supportive housing.
Program of All‐inclusive Care for the Elderly (PACE)
Programs of All‐Inclusive Care for the Elderly (PACE) provides a comprehensive set of social and medical services to seniors that allows them to continue living in their own homes for as long as possible. PACE serves individuals who are age 55 or older, certified by their state to need nursing home care, able to live safely in the community at the time of enrollment and live in a PACE service area. PACE in Orange County is provided by CalOptima and offers an interdisciplinary team to deliver in‐home care, therapies, rehab, social services, transportation, adult day care, meals, respite care and medical care. Seniors may visit a PACE Center a few times a week or the PACE team may bring services to the senior’s home. PACE providers also contract with mental health specialists to deliver behavioral health Treatment. There are promising models of pairing PACE supports with affordable/supportive housing developments to create a robust wrap around service model for seniors exiting homelessness.
Additional Service Partners:
Health Partners: It is important to identify local health partners (such as hospitals, crisis centers, substance use disorder treatment services, and other health resources in Orange County) who provide responsive services that can assist in maintaining residential stability in housing.
Local Philanthropy: In addition, Local Philanthropy will be a critical partner in all of these efforts, providing crucial supports to address funding gaps and spurring innovative approaches to ending homelessness in Orange County.
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Potential Future Funding Sources
No Place Like Home
On July 1, 2016, Governor Brown signed landmark legislation enacting the No Place Like Home program to dedicate $2 billion in bond proceeds to invest in permanent supportive housing for persons who are in need of mental health services and are experiencing homelessness, chronic homelessness, or who are at risk of chronic homelessness. The bonds will be repaid by funding from the Mental Health Services Act (MHSA). The program is currently awaiting a court ruling regarding the validity of the program, anticipated later on in 2018. Also, a measure may be placed on the November 2018 statewide ballot to explicitly authorize the use of Mental Health Services Act revenues to repay $2 billion in bond proceeds that will be used to fund a competitive county grant program to create permanent supportive housing units for people with severe mental illness via the No Place Like Home (NPLH) program. In current planning estimates, Orange County is included in the Large County category and local projects will compete against an estimated 9 other Large Counties for a pool of $386 Million in funding over a four year period. An additional $7 Million in NPLH funding will be available on an over the counter/non‐competitive process for Orange County developments. Local sources for affordable and supportive housing financing will be critical for Orange County projects to be competitive in the NOFA rounds for NPLH funding.
The No Place Like Home program requires a County Plan that meets State HCD’s requirements.
In working to achieve that goal, OCCR has formed a No Place Like Home Advisory Committee.
Several of the key elements of the NPLH Plan requirements are aligned with this HF Strategy.
The required NPLH Plan elements are:
Affordable Housing in Orange County
Needs and Barriers to Affordable Housing
Evidence Based Practices
Permanent Supportive Housing In Orange County
Plans, Goals, Strategies, and Activities to Reduce Homelessness in Orange County.
Source of Funding: Mental Health Services Act (described above) SB2 ‐ Building Homes and Jobs Act
This program is funded through a $75 document recording fee and provides a dedicated source of funding for housing related activities, as described below. The program is expected to receive up to $250 Million/year on an ongoing basis and is designed in two phases: Year 1 and Year 2 and beyond.
In the first year:
50% of the funds will made available to local governments to update planning documents and zoning ordinances in order to streamline housing production, including, but not limited to, general plans, community plans, specific plans, sustainable communities’ strategies, and local coastal programs.
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50% made available to the Department of Housing and Community Development to assist persons experiencing or at risk of homelessness, including, but not limited to, providing rapid rehousing, rental assistance, navigation centers, and the new construction, rehabilitation, and preservation of permanent and transitional rental housing. The department shall ensure geographic equity in the distribution and expenditure of funds allocated.
In the second year funds will flow to CDBG jurisdictions throughout the state and it is critical that Orange County work with the local CDBG jurisdictions to align priorities related to housing and homelessness. In year two and beyond, the following requirements will be in place:
20% of all moneys in the fund be expended for affordable owner‐occupied workforce housing. This will be calculated across all of the programs below:
o 70% of the moneys deposited in the fund be provided to local governments in accordance with a specified formula for the purposes listed below 90% of these monies will follow the entitlement formula specified in Section 5306 of Title 42 of the United States Code for federal FY 2017 10% of funds would be competitive for non‐entitlement areas o 5% for state incentive programs
o 10% housing for agricultural workers
o 15% for CalHFA financing for multi‐family housing
For the 70% of funds available (note that 20% of overall Year 2 funding will be for owner‐ occupied workforce housing), funds can be used for:
(i) The predevelopment, development, acquisition, rehabilitation, and preservation of multifamily, residential live‐work, rental housing that is affordable to extremely low, very low, low‐, and moderate‐income households, including necessary operating subsidies. (ii) Affordable rental and ownership housing that meets the needs of a growing workforce earning up to 120 percent of area median income, or 150 percent of area median income in high‐cost areas.
(iii) Matching portions of funds placed into local or regional housing trust funds. (iv) Matching portions of funds available through the Low and Moderate Income Housing Asset Fund pursuant to subdivision (d) of Section 34176 of the Health and Safety Code. (v) Capitalized reserves for services connected to the creation of new permanent supportive housing, including, but not limited to, developments funded through the Veterans Housing and Homelessness Prevention Bond Act of 2014.
(vi) Assisting persons who are experiencing or at risk of homelessness, including providing rapid rehousing, rental assistance, navigation centers, emergency shelters, and the new construction, rehabilitation, and preservation of permanent and transitional housing. (vii) Accessibility modifications.
(viii) Efforts to acquire and rehabilitate foreclosed or vacant homes. (ix) Homeownership opportunities, including, but not limited to, down payment assistance. | Page 20
(x) Fiscal incentives or matching funds to local agencies that approve new housing for extremely low, very low, low‐, and moderate‐income households.
Source of Funding: Document Recording Fee.
SB3 ‐ Veterans and Affordable Housing Bond Act of 2018
SB3 authorized the legislature to place this Act on the ballot in November 2018 and would provide $4 billion in bond financing for various existing housing programs as well as infill infrastructure financing and affordable housing matching grant programs, to be administered by State Housing and Community Development and California Housing Finance Agency. If successfully passed, up to $300 Million of SB3 funds would be available statewide for local jurisdictions to apply to fund local Housing Trust Funds. This Act would bring significant new resources to the State of California for the creation of affordable and supportive housing.
Source of Funding: General obligation bond.
SB912 Housing: homelessness programs and affordable housing SB912 would require $2 billion in funding be allocated from the General Fund to the Department of Housing and Community Development to assist in the new construction, rehabilitation, and preservation of permanent and transitional rental housing and address homelessness, particularly homelessness among members of vulnerable populations.
Source of Funding: State General fund.
| Page 21
Financial Modeling
A financial model was developed based on the estimated need of 2,700 units of supportive housing that would be financed over six years (and produced over a seven year period), maximizing the range of capital and operating resources outlined above. This financial model is a projection of how these developments may be financed over time and is based on current estimates and assumptions. A financial model is useful in describing the general assumptions about what it will take in terms of both time and resources to develop the number and types of units projected, however, it is certain that the results will vary greatly depending on resource availability. The model should be re‐evaluated, updated and revised on a regular basis as projects are funded and new funding resources become available.
Modeling Considerations
The table below outlines the Development Costs for the 2,700 supportive housing unit goal.
The capital funding commitments are assumed over a six year timeframe as the funding must be committed to projects at least one year prior to the project opening in order to take into account time to develop the project.
Table E: Supportive Housing Unit Goal ‐ Development Costs per Unit:
Housing Development Costs Per Unit (2.5% annual escalator) 2019 2020 2021 2022 2023 2024
Supportive Housing
Single Adults -
Acquisition/Rehabilitation $ 300,000 $ 307,500 $315,188 $ 323,067 $ 331,144 $ 339,422 Single Adults - New
Construction $ 375,000 $ 384,375 $ 393,984 $ 403,834 $ 413,930 $ 424,278 Supportive Housing - Families:
Acquisition/Rehabilitation $ 350,000 $ 358,750 $ 367,719 $ 376,912 $ 386,335 $ 395,993 Supportive Housing - Families:
New Construction $ 425,000 $ 435,625 $ 446,516 $ 457,679 $ 469,120 $ 480,848 Total Supportive Housing Development Costs (2,700 units) = $ 930,000,000 | Page 22
Financial Model – Capital Resources
The following tables outline a very high level financial model which identifies potential sources of capital resources required to generate 2,700 units of supportive housing, with funding commitments made over the next six years (and units produced over seven years), along with the funding gap to achieve that goal.
It is important to note as outlined above, that Orange County will need to identify a significant source of rental/operating subsidies as well as innovative strategies to provide effective services in supportive housing, discussed below.
Table F: Capital Financing By Year:
Capital Financing By Year Dedicated to Supportive Housing Developments Financing Commitments by Year
2019 2020 2021 2022 2023 2024
Local Financing –
HOME1 $34,200,000 $5,700,000 $5,700,000 $5,700,000 $5,700,000 $5,700,000 $5,700,000 Local Financing (all
jurisdictions) – Year
2 of SB2 funding
$39,600,000 $6,600,000 $6,600,000 $6,600,000 $6,600,000 $6,600,000 $6,600,000 Local City/County
Properties2 $12,000,000 $2,000,000 $2,000,000 $2,000,000 $2,000,000 $2,000,000 $2,000,000 Housing Successor
Funds (all
jurisdictions)
$45,000,000 $7,500,000 $7,500,000 $7,500,000 $7,500,000 $7,500,000 $7,500,000 9% Low Income
Housing Tax
Credits3
$48,000,000 $8,000,000 $8,000,000 $8,000,000 $8,000,000 $8,000,000 $8,000,000 4% Low Income
Housing Tax
Credits4
$120,000,000 $20,000,000 $20,000,000 $20,000,000 $20,000,000 $20,000,000 $20,000,000 Local MHSA
Housing/Special
Needs Housing
Program5
$70,000,000 $11,666,667 $11,666,667 $11,666,667 $11,666,667 $11,666,667 $11,666,667 No Place Like
Home (MHSA)6 $48,000,000 $8,000,000 $8,000,000 $8,000,000 $8,000,000 $8,000,000 $8,000,000 VHHP (Prop 41)7 $11,250,000 $2,250,000 $2,250,000 $2,250,000 $2,250,000 $2,250,000 AHSC8 $4,500,000 $1,500,000 $1,500,000 $1,500,000
Mortgage/Bonds9 $132,000,000 $22,000,000 $22,000,000 $22,000,000 $22,000,000 $22,000,000 $22,000,000 Other Sources (e.g.
Deferred Developer
Fee; AHP; etc.)
$12,000,000 $2,000,000 $2,000,000 $2,000,000 $2,000,000 $2,000,000 $2,000,000 Total (all sources) $576,550,000 $97,216,667 $95,716,667 $97,216,667 $95,716,667 $97,216,667 $93,466,667 Total Needed to
reach unit goals: $930,000,000 $135,625,000 $139,015,625 $122,791,797 $125,861,592 $129,008,132 $277,053,586 Capital Gap: $(353,450,000) $(38,408,333) $(43,298,958) $(25,575,130) $(30,144,925) $(31,791,465) $(183,586,919)
| Page 23
Assumptions
1 Based on HOME allocation estimate for all jurisdictions 2 Based on 8 sites identified for supportive housing
3 Based on maximum estimated annual dollars available for Supportive Housing in Orange County 4 Based on 30% of per unit cost and estimated production capacity 5 Based upon projections of local MHSA Housing/Special Needs Housing Program funds 6 Based upon an estimated up to $65M in NPLH for Orange County projects. This assumes 2/3 of NPLH funds are invested as capital for the development of units and 1/3 of the funds will be committed as Capitalized Operating Subsidy Reserve.
7 Based upon 3% of five additional rounds of $75M per year 8 Based upon maximum projected available funding for SH projects (e.g. one project every other year) 9 Based on 30% of total unit cost for 4% units and 15% for 9% The following table highlights the source of funds listed above, the potential amount of funds that are available, and level of government that manages and administers those funds.
Table G: Funding Source and Administering Level of Government – 2019 to 2024 Source City County State Private
Investment
Local Financing: HOME
$30 Million
Up to $30 Million
available based on
FFY17 HOME
allocation
$4.2 Million
(all county HOME
funding will be
dedicated)
Local Financing: SB2 – Year 2
(Anticipating approx $13 Million/year to
Orange County region for shelter &
housing, including navigation centers.
Estimates ½ of funds dedicated to SH)
$36 Million
$3.6 Million
Housing Successor Funds
(Up to $45 Million
available based on
current estimates of
available funds)
(County has $1 Million
in available funds)
Local City/County Properties
9% Low Income Housing Tax Credits
4% Low Income Housing Tax Credits
Local MHSA Housing/Special Needs
Housing Program
No Place Like Home (MHSA)
$7 Million
NPLH non-competitive
estimated allocation
Up to $65 Million
(competitive)
VHHP (Prop 41)
AHSC
Mortgage/Bonds
| Page 24
Mitigating the Financing Gap
A number of sources of capital funding may become available in 2018 as the legislature contemplates a variety of funding sources to address homelessness and the electorate will consider several key propositions in the fall. These include significant potential funding sources such as:
SB3: the Veterans and Affordable Housing Bond Act of 2018 (described above). SB3 could potentially bring $300 Million in capital funding to supportive and affordable housing developments in Orange County.
State Budget request: local, county and state legislators have all identified the critical need to address the crisis of homelessness in California. A range of significant budget requests are under consideration in May 2018 that would dedicate a portion of the $9 billion state budget surplus towards addressing homelessness. A budget request is expected to be finalized by June 30, 2018 and it is anticipated that a portion of these funds could be committed to supportive and affordable housing in Orange County.
Another approach could be to identify a source of local funding for supportive and affordable housing that would serve as a critical resource in meeting the need to create 2,700 units of supportive housing dedicated to people experiencing homelessness with disabling health conditions. A local funding source could be in the form of a local housing trust fund and a dedicated local revenue source. The availability of local financing for supportive and affordable housing will have a significant impact on the potential feasibility of projects throughout the Orange County region.
| Page 25
Financing Modeling – Operating/Rental Subsidies
Supportive housing tenants have extremely low incomes and often receive Social Security Income as their only source of income. This means that tenants do not have sufficient income to afford the rent of a “typical” affordable housing development. Supportive housing projects must receive operating income that covers the costs of operating supportive housing. In order to meet this need, projects pursue commitments of Project Based Section 8 vouchers that enable the supportive housing tenant to pay 30% of their income towards the rent payment.
The table below outlines the projected availability of Project Based Section 8 subsidies that could be committed to supportive housing projects, representing 2,700 supportive housing units.
Table H: Rental Subsidy Summary and Gap:
Rental Subsidy Summary 2019 2020 2021 2022 2023 2024 2025 Total Rental Subsidy Need 450 450 390 370 370 370 300 2,700
Project-Based Section 8 (needed for
SH units) 200 200 150 150 150 150 150 1,150
Capitalized Operating Subsidy
Reserve (COSR) - MHSA Project) 25 25 25 25 25 25 25 175 Total (Gap) -225 -225 -215 -195 -195 -195 -125 -1,375
Assumptions: PBS8 estimated at 150/year across all Housing Authorities in Orange County, plus 50 HUD/VASH Vouchers/year in 2019 and 2020, and 1/3 of No Place Like Home funds will be committed as COSR.
Operating/Rental Subsidy Gap:
There is a clear need for additional operating/rental subsidies to successfully develop 2,700 units of supportive housing in Orange County. Outlined above, there is a current estimated gap of 1,375 rental/operating subsidies for supportive housing units. Based on the estimated operating subsidy commitments required for these projects to be financially feasible, the projected operating/rental subsidy gap is estimated at approximately $350 Million over the minimum 15 year timeframe required for operating commitments. It will be important to plan for the exhaustion of any locally funded operating/rental subsidy at year 15, such as committing Project Based Section 8 vouchers to projects over that 15 year period in order to ensure the ongoing financial feasibility of the projects.
| Page 26
Total Gap: Capital and Rental/Operating Funding
In planning to create 2,700 units of supportive housing over seven years, there is a funding “gap” estimated at $703 Million (representing $353 Million in funding needed for capital expenses to develop the properties and $350 Million in rental/operating subsidies to ensure the supportive housing units are affordable to people with histories of homelessness), along with an additional gap in resources to provide services in supportive housing. There is a potential significant future funding (e.g. SB3 and California budget surplus request) that could become available to finance supportive and affordable housing in Orange County.
These are the critical resources required to generate a pipeline of supportive housing in Orange County that meets the level of need across the region. There will need to be significant planning regarding the services required to meet the health and behavioral health needs of supportive housing tenants while also supporting their residential stability and ensuring they do not return to homelessness.
| Page 27
Opportunities
This HF Strategy identifies a significant goal of producing 2,700 units of supportive housing (plus the need for an additional 2,700 affordable housing options for people experiencing homelessness). In working to achieve those goals, it is important to take advantage of the following opportunities:
Enable a broad approach to development strategies, including hotel/motel conversions that may be able to generate units in a shorter timeframe.
Identify properties that are appropriate for acquisition/rehabilitation across the region. Explore creative approaches to expanding housing options, such as exploring zoning and planning alternatives that could be implemented to expand housing options for people experiencing homelessness.
Maximize partnerships with the private sector interested in addressing homelessness. Identify opportunities to address housing needs regionally, aligning resources with and among cities.
Maximize funding and policy opportunities presented through the recently passed Housing Package at the state level.
Establish new services and housing partnerships designed to support people with histories of homelessness in housing.
Implement a strategic approach to prioritize housing resources for those experiencing homelessness in Orange County by ensuring direct access through the Continuum of Care regional Coordinated Entry System. The Coordinated Entry System is now integrated within the Homeless Management Information System software, to ensure effective response coordination of regional efforts.
Challenges
There are significant challenges that must be addressed in order to meet the unit goals for the region. Creative solutions are needed to address the following challenges which pose barriers to creating supportive and affordable housing in Orange County. Significant funding gaps in capital, operating and services resources. Specific concerns regarding the status of federal funding for Section 8 vouchers as well as funding for services though mainstream programs.
Impact of recent tax reform on the value of investing tax credits in affordable and supportive housing, creating an additional funding gap.
Neighborhood opposition (“Not In My Backyard”) to affordable and supportive housing projects.
| Page 28
Recommendations & Next Steps
A variety of strategies and approaches can be implemented in Orange County to work towards the goals outlined in this plan. The following recommendations are specific steps that can be taken that will enable progress towards the HF Strategy’s goals. • Work with 34 cities to align regional policies to prioritize supportive housing for local and regional resources, including existing funding sources as well as new funding opportunities. • Explore the possibility of creating regional housing funds that can be invested in supportive and affordable housing projects collaboratively.
• Collaborate across all four housing authorities in the region to increase the availability of Project Based Section 8, a critical resource in supportive housing development. • Identify land that can be used for development across the region (in partnership with cities). • Proactively plan with 22 CDBG partners in the region who will be receiving SB2 funding as the impact of the funds will be maximized if the local CDBG jurisdictions align their priorities for investing this significant new source in solutions to homelessness, and dedicate at least 50% of the funding to supportive and affordable housing.
• Address the gap in funding needed by exploring a local source of supportive/affordable housing funding.
• Given the County investments in the creation of housing for homeless populations in this initiative, housing referral preference will be given to the Orange County Continuum of Care Coordinated Entry System, for homeless persons who meet project specific eligibility criteria and are prioritized within the Service Planning Area of the projects location.
Appendices
Definitions
References
Definitions
Chronically Homeless Family
A chronically homeless family is defined as a household with at least one adult and one child under the age of 18, or a minor Head of Household under the age of 18 and minimum of one child. The Head of Household must meet the definition of a chronically homeless person (see below).
Chronically Homeless Individual
An unaccompanied individual who:
(i) is homeless and lives or resides in a place not meant for human habitation, a safe haven, or in an emergency shelter;
(ii) has been homeless and living or residing in a place not meant for human habitation, a safe haven, or in an emergency shelter continuously for at least 1 year or on at least 4 separate occasions in the last 3 years where total time homeless sums to at least 1 year; and (iii) has an adult head of household (or a minor head of household if no adult is present in the household) with a diagnosable substance use disorder, serious mental illness, developmental disability (as defined in section 102 of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (42 U.S.C. 15002)), post‐traumatic stress disorder, cognitive impairments resulting from a brain injury, or chronic physical illness or disability, including the co‐occurrence of 2 or more of those conditions, which prevent them from holding a job or living in stable housing.
A person who currently lives or resides in an institutional care facility, including a jail, substance abuse or mental health treatment facility, hospital or other similar facility, and has resided there for fewer than 90 days shall be considered chronically homeless if such person met all of the requirements described above prior to entering that facility.
Coordinated Entry System
Coordinated Entry System is designed to coordinate program participants’ intake assessments based on a system‐wide acuity prioritization that targets resources to match client needs. In Orange County, the Coordinated Entry System consists of regional resource HUBS within three Service Planning Areas: North, Central and South County regions. It is easily accessed by individuals and families seeking services and housing, and includes coordinated among service providers utilizing a standardized approach to targeting resources to meet needs of those experiencing homelessness in the jurisdiction.
Literally Homeless (Category 1 HUD definition):
(1) Individual or family who lacks a fixed, regular, and adequate nighttime residence, meaning:
(i) Has a primary nighttime residence that is a public or private place not meant for human habitation;
(ii) Is living in a publicly or privately operated shelter designated to provide temporary living arrangements (including congregate shelters, transitional housing, and hotels and motels paid for by charitable organizations or by federal, state and local government programs); or (iii) Is exiting an institution where (s)he has resided for 90 days or less and who resided in an emergency shelter or place not meant for human habitation immediately before entering that institution
References
Orange County Affordable Housing Strategic Plan 2015.
Seeger, J. (2017, June 9). State Income Limits for 2017. Retrieved from Department of Housing and Community Development: http://www.hcd.ca.gov/grants‐funding/income‐limits/state‐and‐federal‐ income‐limits/docs/inc2k17.pdf
United States Department of Housing and Urban Development. (2017). FY 2017 Income Limits Summary. Retrieved from FY 2017 Income Limits Documentation System:
https://www.huduser.gov/portal/datasets/il/il2017/2017summary.odn?states=6.0&data=2017&input name=METRO31080MM5945*0605999999%2BOrange+County&stname=California&statefp=06&year =2017&selection_type=county
United States Department of Housing and Urban Development. (n.d.). Affordable Housing. Retrieved from HUD.GOV: https://www.hud.gov/program_offices/comm_planning/affordablehousing/
q e0q
CITY OF PLACENTIA
By: Rhonda Shader, Mayor
Dated:
ATTEST:
Robert M. McKinnell, City Clerk
NOTICE TO CITY TO BE GIVEN TO:
City Administrator: Damien R. Arrula
City: Placentia
Street Address: 401 E. Chapman Ave
Placentia, CA 92870
Phone:
Fax:
(714) 993-8117
Qt4\ 961-0283
APPROTT¡ED AS TO FORM:
By:
ty
Orange County Housing Finance Trust - Joint Powers Agreement Signature Page
CITY OF WESTMINSTER
Dated:
By: Tri Ta, Mayor
ATTEST:
eP43
Christine Cordon, City Clerk
NOTICE TO CITY TO BE GIVEN TO:
Eddie Manfro, City Manager
City of Westminster
8200 Westminster Blvd
Westminster, CA 92683
Phone: 714) 548- 3172
APPROVED AS TO FORM:
City Attorney
Orange County Housing Finance Trust— Joint Powers Agreement Signature Page FY 2022-23 Administrative Budget
ADMINISTRATIVE REVENUES 21-22
BUDGET
21-22 As Of
04/30/22 % Est 21-22 06/30/22 %
22-23
BUDGET
REAP Grant $ - 310,000 $ 0% 130,000 $ 42% 470,000 $
County of Orange Administrative Grant $ 200,000 200,000 $ 100% 200,000 $ 100% 200,000 $ City Memberhip Contribution $ - - $ 0% - $ 0% - $
Local Housing Trust Fund Administrative Grant $ 21,457 105,384 $ 20% 99,264 $ 94% 341,367 $ Interest Earned $ 43,386 - $ 0% 52,000 $ 0% 52,000 $
Carryover funds from previous year $ 207,372 - $ 0% 207,372 $ 0% 188,466 $ Annual Project Compliance Monitoring Fee $ - - $ 0% 4,295 $ 0% 19,765 $ TOTAL ADMINISTRATIVE REVENUES 615,384 $ 472,215 $ 77% 692,931 $ 113% 1,271,598 $ ADMINISTRATIVE EXPENSES 21-22
BUDGET
21-22 As Of
04/30/22 %
Est 21-22
06/30/22 %
22-23
BUDGET
Memberships/Subscriptions/Dues/Website/Email $ - 2,500 $ 0% 307 $ 12% 1,000 $ Office Supplies/Mailing/Equipment/Software/Copying/Misc Fees $ 427 2,000 $ 21% 427 $ 21% 1,500 $ Conference-Registration Fees/Travel Expenses/Business Meeting $ - 4,000 $ 0% - $ 0% 4,000 $ Insurance (Alliant) (this budget item approved mid-year) $ 12,581 16,000 $ 79% 12,581 $ 79% 14,500 $ TOTAL GENERAL OPERATING COSTS 24,500 $ 13,008 $ 53% 13,315 $ 54% $ 21,000 Management and Administration (CivicStone) $ 189,708 240,000 $ 79% 285,000 $ 119% 260,000 $ County Counsel (County MOU) $ 65,484 40,000 $ 164% 82,000 $ 205% 110,000 $ County Clerk of the Board (County MOU) $ 1,796 6,000 $ 30% 2,500 $ 42% 6,000 $ County Sheriff (Board Meeting Audio/Video) (County MOU) $ 463 1,803 $ 26% 1,000 $ 55% 2,000 $ County Treasurer (County MOU) $ 5,142 - $ 0% 6,250 $ 0% 6,000 $ County Auditor Controller (County MOU) $ 8,957 7,500 $ 119% 12,000 $ 160% 15,000 $ County Community Resources (County MOU) $ 36,592 80,000 $ 46% 45,000 $ 56% 50,000 $ Financial Consultant (CSH) $ - 35,000 $ 0% - $ 0% 18,000 $ Auditing Consultant (Edie Bailly) $ 15,400 17,000 $ 91% 15,400 $ 91% 17,000 $ Advocacy/Lobbying Services $ 36,000 72,000 $ 50% 42,000 $ 58% 72,000 $ Marketing & Communication Services $ - 20,000 $ 0% - $ 0% 25,000 $ Website and GIS Mapping Consultant $ - 71,581 $ 0% - $ 0% 65,000 $ TOTAL CONSULTANT COSTS 590,884 $ 359,542 $ 61% 491,150 $ 83% 646,000 $ ESTIMATED ANNUAL EXPENSES 615,384 $ 372,550 $ 61% 504,465 $ 82% 667,000 $ REVENUE MINUS EXPENSES - $ 99,665 $ 188,466 $ 604,598 $
GENERAL OPERATING COSTS
CONSULTANT COSTS
Orange County Housing Finance Trust – Joint Powers Agreement Signature Page
CITY OF SEAL BEACH
Dated: ___________________________ __________________________________ By: Joe Kalmick, Mayor
ATTEST:
___________________________________
Gloria D. Harper, City Clerk
NOTICE TO CITY TO BE GIVEN TO:
City Manager: Jill Ingram
City of Seal Beach
211 8th Street
Seal Beach, CA 90740
Phone: 562-431-2527
Fax: 562-493-9857
APPROVED AS TO FORM:
By: _______________________________
Craig A. Steele, City Attorney
Consideration of
Membership in the
Orange County Housing
Finance Trust
JUNE 13, 2022
ORANGE COUNTY HOUSING FINANCE TRUST
• Formed in 2019 through State legislation, AB 448
• Membership is through joining a Joint Powers Authority • County of Orange played leadership role to get the effort initially funded • Currently 23 member cities + County
GOALS OF THE TRUST
• Finance the development of affordable housing county-wide • Including 2,700 permanent supportive units by 2025
• Bring funding sources to OC
• Grants and State/Federal budget sources
HOW IT WORKS
• Trust overseen by a Board, and staffed
• Trust actively pursues funding
• Uses Notice of Funding Availability to put awarded money into projects • Annually updates its Strategic Plan to evaluate and achieve goals • Engages member cities, developers, service providers through outreach
ACCOMPLISHMENTS
• Secured $36M in funding
• $20M already awarded; another $10M forthcoming
• 13 projects totaling 901 affordable & supportive housing units • 23 current city members
WHAT THIS MEANS FOR SEAL BEACH
• Assisting in the regional effort to reduce homelessness • If a developer proposed affordable housing, they would be able to apply for funding through NOFA process
• Units count towards RHNA
• Trust implements fund deployment and compliance requirements • Members support administrative costs as needed
Agenda Item O
AGENDA STAFF REPORT
DATE: June 13, 2022
TO: Honorable Mayor and City Council
THRU: Jill R. Ingram, City Manager
FROM: Philip L. Gonshak, Chief of Police
SUBJECT: COVID-19 Event Summary and After-Action Report ________________________________________________________________ SUMMARY OF REQUEST:
That the City Council receive and file the COVID-19 Event Summary and AfterAction Report.
BACKGROUND AND ANALYSIS:
The purpose of an After-Action Report (AAR) is to analyze the management or response to an incident, exercise, or event by identifying strengths to be maintained and built upon, as well as identifying potential areas of improvement.
AARs are intended to be used as a tool by the Seal Beach Police Department to provide analysis for lessons learned, best practices, and recommendations for future planning, training, and exercise development. As improvement actions are identified and addressed, it is important that any relevant plans, policies, and procedures are updated accordingly.
The COVID-19 Event Summary and After-Action Report details the Seal Beach Emergency Operations Center (EOC) response to COVID-19 from January 2020 through February 2022. The report encompasses response actions by the Orange County Health Care Agency, Los Alamitos Unified School District, Skilled Nursing Facilities, as well as a summary of the City and Police Department events and response.
The novel coronavirus SARS-CoV-2 that causes COVID-19 was first reported in China in December 2019. In response to this global public health threat, emergency proclamations were made by the State of California and Orange County. The City of Seal Beach proclaimed a local emergency on March 13, 2020, to provide for the health and safety of employees and citizens, to protect critical infrastructure, and to support response operations. After over two years of supporting response and recovery operations, the EOC continues to be activated at a minimal level as of June 2022 and both Federal and State proclamations remain in effect. The local emergency remains in effect as well and staff is not recommending that it be rescinded at this time.